AGENDA
ALISO VIEJO CITY COUNCIL
REGULAR MEETING
WEDNESDAY, OCTOBER 21, 2026
7:00 PM
CITY HALL
COUNCIL CHAMBERS
12 JOURNEY ALISO VIEJO, CA
Mayor Max Duncan
Mayor Pro Tem Mike Munzing
Councilmember Tiffany Ackley
Councilmember Tim Zandbergen
Councilmember Garrett Dwyer
WELCOME to the City of Aliso Viejo City Council meeting. Persons wishing to address the City Council may submit a Request to Address City Council form to the City Clerk prior to the item being heard.
Public comments are limited to three (3) minutes per speaker. Members of the public may also participate remotely as authorized by law. Instructions for virtual participation, including the meeting link and procedures for providing public comment and the SB707 Disruption Policy, are available on the City's website at: https://avcity.org/470/Public-Comments-and-Disruption-Policy-Pu The City complies with the Americans with Disabilities Act (ADA). If you need reasonable accommodations to participate in the meeting, please contact Human Resources at (949) 425-2511 at least 48 hours prior to the meeting.
Regular meetings are held on the first and third Wednesday of the month at the City Hall Council Chambers, 12 Journey, Aliso Viejo. Agendas are available by the Friday preceding a regularly scheduled City Council meeting. Communications and supplemental materials received by the City relating to agenda items are presented at the dais and in the Public Copy agenda binder at the time of the meeting or contact the City Clerk's office to review or obtain a copy. Council proceedings are recorded.
Meetings are broadcast live on Cox Communications Channel 851, AT&T U-Verse Channel 99 and the City's website. By attending the City Council Meeting, you consent to be recorded and televised.
Meetings are rebroadcast on Wednesday at 7:00 p.m. cable channels, and can be viewed on the City's website.
BRETT CHANNING SCOTT C. SMITH MARIA KENDIG
CITY MANAGER CITY ATTORNEY CITY CLERK
1 PLEASE SILENCE ALL CELL PHONES AND OTHER
ELECTRONIC EQUIPMENT WHILE CITY COUNCIL IS IN SESSION
CALL TO ORDER: Convene Regular Meeting
ROLL CALL
PLEDGE OF ALLEGIANCE:
1. SPECIAL PRESENTATIONS:
1.1 PROCLAMATION - BREAST CANCER AWARENESS MONTH
1.2 BUSINESS SPOTLIGHT - VOX KITCHEN
2. ADDITIONS, DELETIONS, REORDERING TO THE AGENDA:
3. COMMUNITY INPUT:
Members of the public wishing to address the City Council in person are requested to complete and submit a Request to Address City Council form to the City Clerk. Forms are available at the entrance to the City Council Chambers. In compliance with the Brown Act, the City Council may not discuss or take action on items not appearing on the agenda, except as authorized by law. The City Council may briefly respond to statements made or questions posed. Public comments are generally limited to three (3) minutes per speaker.
Members of the public may also observe and participate remotely using Teams Meeting.
Instructions for remote participation, including how to join the meeting online or by telephone, request to speak during public comment, participate by telephone, submit written comments, and the City's SB 707 Technology Disruption Policy, are available at: https://avcity.org/470/Public-Comments-andDisruption-Policy-Pu Join Online: https://teams.microsoft.com/meet/257876176705929?p=7EebJ4ATObyl6INjsV Join by Telephone: (+1 323-694-9789 Conference ID: 118 228 149# Members of the public wishing to provide remote public comment should follow the participation instructions available at the link above.
4. CONSENT CALENDAR:
All matters listed on the Consent Calendar will be acted upon by one vote unless members of the City Council, or staff request a matter to be discussed and/or removed from the Consent Calendar for separate action. Items removed from the Consent Calendar will be discussed and voted upon immediately following City Council action on the remainder of the Consent Calendar. 2 4.1 WAIVE THE READING OF ALL ORDINANCES AND RESOLUTIONS Recommended Action: Approve the reading by title only of all ordinances and resolutions wherein the titles appear on the public agenda; said titles shall be determined to have been read by title, and further reading is waived.
4.2 APPROVAL OF MINUTES
Recommended Action: Approve the minutes as submitted.
Draft Minutes 2026-10-07
4.3 ACCOUNTS PAYABLE
Recommended Action: Ratify accounts payable checks and electronic funds transfers issued between September 25, 2026, and October 8, 2026, for $1,330,999.84.
Staff Report
Attachment 1 - Accounts Payable Report
4.4 TREASURER’S STATEMENT – AUGUST 2026
Recommended Action: Receive and file the August 2026 Treasurer’s Statement.
Staff Report
Attachment 1 August 2026 Treasurer Statement
4.5 SECOND READING AND ADOPTION OF AN ORDINANCE APPROVING A ZONE CHANGE FROM BUSINESS PARK 2 TO MEDIUM DENSITY RESIDENTIAL DISTRICT FOR PROPERTY LOCATED AT 15 ARGONAUT
Recommended Action: Conduct a second reading and adopt an Ordinance entitled:
ORDINANCE NO. 2026-255: AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A ZONE CHANGE FROM BUSINESS PARK 2 TO MEDIUM DENSITY RESIDENTIAL DISTRICT FOR THE DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT (623-093-10 AND 623-093-11)
Staff Report
Attachment 1 - Proposed Ordinance ZC
4.6 SECOND READING AND ADOPTION OF AN ORDINANCE APPROVING A
DEVELOPMENT AGREEMENT WITH BRANDYWINE HOMES FOR PROPERTY LOCATED AT 15 ARGONAUT
Recommended Action: Conduct a second reading and adopt an Ordinance entitled:
ORDINANCE NO. 2026-256: AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY AND BRANDYWINE HOMES FOR THE DEVELOPMENT OF PRESIDIO AT PACIFIC PARK, A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT (APN: 623-093-10 & 623-093-11)
Staff Report
Attachment 1 - Proposed Ordinance DA
3 4.7 APPROVAL OF COOPERATIVE AGREEMENT WITH THE CITIES OF ALISO
VIEJO, LAGUNA NIGUEL, LAGUNA HILLS, AND MISSION VIEJO FOR THE LA PAZ
ROAD REGIONAL TRAFFIC SIGNAL SYNCHRONIZATION PROGRAM PROJECT Recommended Action:
1. Approve the Cooperative Agreement by and between the City of Laguna Niguel and the cities of Aliso Viejo, Laguna Hills, and Mission Viejo for the La Paz Road Regional Traffic Signal Synchronization Program Project;
2. Appropriate an additional $86,133.76 in Measure M2 funds to the fiscal year 2026-27 Capital Improvement Plan budget;
3. Authorize the Mayor and the City Clerk to execute the agreement; and
4. Authorize the City Manager to execute future amendments to the agreement.
Staff Report
Attachment 1 - Vicinity Map
Attachment 2 - Cooperative Agreement
4.8 COMMUNITY FACILITIES DISTRICT NO. 2005-01 (GLENWOOD AT ALISO VIEJO)
LOCAL AGENCY SPECIAL TAX AND BOND ACCOUNTABILITY ACT
COMPLIANCE (SB 165) REPORT FOR FISCAL YEAR ENDED JUNE 30, 2026 Recommended Action: For the City Council to accept and file the Community Facilities District No. 2005-01 (Glenwood at Aliso Viejo) Local Agency Special Tax and Bond Accountability Act Compliance (“SB 165”) Report for Fiscal Year ended June 30, 2026.
Staff Report
Attachment 1 - SB 165 Report for Fiscal Year Ended June 30, 2026
5. PUBLIC HEARINGS:
5.1 GENERAL PLAN AMENDMENT GPA-2026-01004, ZONE CHANGE ZA-2026-01003, VESTING TENTATIVE TRACT MAP 19442, SITE DEVELOPMENT PERMIT SDP2025-00004, DEVELOPMENT AGREEMENT DA-2026-01001 AND A MITIGATED NEGATIVE DECLARATION FOR THE DEVELOPMENT OF A 137-UNIT
RESIDENTIAL TOWNHOME COMMUNITY AT 27081 ALISO CREEK ROAD Recommended Actions:
Conduct a public hearing and:
1. Adopt a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, ADOPTING A MITIGATED NEGATIVE
DECLARATION AND A MITIGATION MONITORING AND REPORTING
PROGRAM PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR GENERAL PLAN AMENDMENT GPA-2026-01004, ZONE CHANGE ZA-2026-01003, VESTING TENTATIVE TRACT MAP 19442, SITE
DEVELOPMENT PERMIT SDP-2025-00004, AND DEVELOPMENT
AGREEMENT DA-2026-01001 TO ALLOW THE DEVELOPMENT OF A 137- UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 27081 ALISO CREEK ROAD (APN: 632-124-08);
2. Adopt a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING AN AMENDMENT TO
THE GENERAL PLAN LAND USE DESIGNATION AND ASSOCIATED LAND
USE MAP FROM PROFESSIONAL OFFICE TO MEDIUM DENSITY
4 RESIDENTIAL FOR THE DEVELOPMENT OF A 137-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 27081 ALISO CREEK ROAD (APN:
632-124-08);
3. Introduce for first reading an Ordinance entitled: A ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A
ZONE CHANGE FROM PROFESSIONAL OFFICE TO RESIDENTIAL MEDIUM DENSITY DISTRICT FOR THE DEVELOPMENT OF A 137-UNIT
RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 27081 ALISO
CREEK ROAD (APN: 632-124-08);
4. Adopt a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 19442 FOR SUBDIVISION INTO CONDOMINIUM PURPOSES AND SITE DEVELOPMENT PERMIT (SDP-2025-00004) TO
ALLOW THE DEVELOPMENT OF A 137-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 27081 ALISO CREEK ROAD (APN: 632-124-08); and
5. Introduce for first reading an Ordinance entitled: AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT DA-2026-01001 BETWEEN THE CITY AND SHEA HOMES LIMITED PARTNERSHIP FOR THE DEVELOPMENT OF A 137- UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 27081 ALISO CREEK ROAD (APN: 632-124-08).
Staff Report
Attachment 1 - Resolution (MND)
Attachment 1 - Exhibit A for MND
Attachment 1 - Exhibit B Response to Comments
Attachment 2 - Resolution (GPA)
Attachment 3 - Ordinance (ZA)
Attachment 4 - Resolution (VTTM and SDP)
Attachment 4 - Exhibit B Proposed Plans
Attachment 4 - Exhibit C VTTM 19442
Attachment 5 - Ordinance (DA)
Attachment 5 - Exhibit A - Dev Agrmt
Attachment 5 - Exhibit D on Dev Agrmt - Density Bonus Housing Agreement Attachment 6 - Presentation
6. DISCUSSION:
6.1 CONSIDERATION OF AN ORDINANCE ADOPTING CHAPTER 11.14 TO TITLE 11
OF THE ALISO VIEJO MUNICIPAL CODE RELATING TO THE PROTECTION, PLANTING, MAINTENANCE, AND REMOVAL OF TREES ON PUBLIC PROPERTY;
AND FINDING THE ACTION TO BE EXEMPT FROM CEQA UNDER CEQA
GUIDELINES
Recommended Action:
1. Find that the ordinance is exempt from review under the California Environmental Quality Act (CEQA) pursuant to Title 14 of the California Code of Regulations, Section 15061(b)(3); and
2. Introduce for first reading by title only an ordinance entitled: AN ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, 5 ADOPTING CHAPTER 11.14 TO TITLE 11 OF THE ALISO VIEJO MUNICIPAL
CODE RELATING TO THE PROTECTION, PLANTING, MAINTENANCE, AND REMOVAL OF TREES ON PUBLIC PROPERTY; AND FINDING THE ACTION TO BE EXEMPT FROM CEQA UNDER CEQA GUIDELINES; and
3. Authorize the City Manager to execute a Tree City Memorandum of Understanding with the Aliso Viejo Community Association; and
4. Authorize Staff to submit an application to the Arbor Day Foundation for Tree City USA recognition.
Staff Report
Attachment 1 - Proposed Ordinance
Attachment 2 - Exhibit A to Ordinance
Attachment 3 - MOU with AVCA
Attachment 4 - Presentation
7. CITY MANAGER' S REPORT:
8. ANNOUNCEMENTS / COUNCIL COMMENTS / COMMITTEE UPDATES:
9. ADJOURNMENT:
The Regular City Council Meeting scheduled for November 4, 2026, has been cancelled.
The next Regular City Council Meeting will be held on Wednesday, November 18, 2026, at 7:00 p.m. in the City Council Chambers, 12 Journey, Aliso Viejo, California. 6
Minutes of the Regular
City Council Meeting
CITY OF ALISO VIEJO
CITY COUNCIL MINUTES
REGULAR MEETING
October 7, 2026
Council Chambers, City Hall,
12 Journey, Aliso Viejo, California
CALL TO ORDER: Mayor Duncan called the regular meeting of the City Council of the City of Aliso Viejo to order at 7:02 p.m.
ROLL CALL:
PRESENT: MAYOR MAX DUNCAN
MAYOR PRO TEM MIKE MUNZING
COUNCILMEMBER TIFFANY ACKLEY
COUNCILMEMBER GARRETT DWYER
COUNCILMEMBER TIM A. ZANDBERGEN
ABSENT: None
STAFF PRESENT: BRETT CHANNING, CITY MANAGER
HONGDAO NGUYEN, ASSISTANT CITY ATTORNEY
MARIA KENDING, DIRECTOR OF GOVERNMENT SERVICES / CITY
CLERK
SO KIM, DIRECTOR OF COMMUNITY DEVELOPMENT
SHAUN PELLETIER, DIRECTOR OF PUBLIC WORKS
LIZZY MENDOZA, RECREATION & COMMUNITY SERVICES
MANAGER
ISAAC AZIZ, INFORMATION TECHNOLOGY MANAGER
RYAN BUHR, ALISO VIEJO POLICE SERVICES CAPTAIN
REID GIBSON, FIRE DIVISION CHIEF
PLEDGE OF ALLEGIANCE: Mark Dowling led the Pledge of Allegiance.
1. SPECIAL PRESENTATIONS:
1.1 RECOGNITION OF ALISO VIEJO CITIZENS OF THE YEAR
Mayor Duncan presented the 2025 and 2026 Civic Service Awards, Citizen of the Year Awards, and Keys to the City to recognize individuals and organizations for their contributions and service to the community. The recipients were:
• 2025 Civic Service Award: Orange County Sheriff’s Department – E-Bike Response, represented by Deputy Aaron Barragan
• 2026 Civic Service Award: Ionut Breb
• 2025 Citizen of the Year: Leilani Harwood
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City Council Meeting
• 2026 Citizen of the Year: Carol Caito
• 2025 Key to the City: Michael Avramidis
• 2026 Key to the City: Lisa Naegele
The honorees were recognized for their public safety efforts, community leadership, volunteer service, and longstanding contributions to Aliso Viejo.
Their names will be added to the City’s Wall of Fame at City Hall. Following the presentations, the meeting was recessed for a plaque unveiling and photo opportunity.
MAYOR DUNCAN RECESSED THE MEETING AT 7:31 P.M. AND RECONVENED AT 7:40 P.M.
1.2 YEAR-END LEGISLATIVE UPDATE FROM ASSEMBLYMEMBER DIANE DIXON
Assemblymember Diane Dixon provided a legislative update on her work representing the 72nd Assembly District, including legislation enacted during her tenure addressing e-bike safety, suicide prevention, and oversight of rehabilitation facilities. She also discussed recent e-bike regulations and presented California State Assembly resolutions recognizing the Mayor and City Council.
1.3 PROCLAMATION - FIRE PREVENTION WEEK
The City Council recognized Fire Prevention Week, observed October 4–10.
Milton Neira, representing the Orange County Fire Authority (OCFA), provided fire safety information, with an emphasis on lithium-ion battery safety and recommended practices for preventing and responding to battery fires.
2. ADDITIONS, DELETIONS, REORDERING TO THE AGENDA:
None.
3. COMMUNITY INPUT:
1. Sebastian addressed bicycle and traffic safety, requesting a bike lane on Aliso Creek Road between Enterprise and Pacific Park and commenting on campaign statements regarding bike lanes, speed limits, and traffic safety.
2. Sujata Achiplunkar provided information about her vegetarian cooking classes offered through the City’s Recreation program and her spice products, encouraging residents to learn more through her website.
3. CONSENT CALENDAR:
Motion: Councilmember Ackley moved, and Councilmember Dwyer seconded, approval of Consent Calendar Items 4.1 through 4.5 as recommended. The motion carried 5-0.
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Minutes of the Regular
City Council Meeting
4.1 WAIVE THE READING OF ALL ORDINANCES AND RESOLUTIONS Recommended Action: Approve the reading by title only of all ordinances and resolutions wherein the titles appear on the public agenda; said title shall be determined to have been read by title, and further reading is waived.
4.2 APPROVAL OF MINUTES
Recommended Action: Approve the minutes as submitted.
4.3 ACCOUNTS PAYABLE
Recommended Action: Ratify accounts payable checks and electronic funds transfers issued between August 28, 2026, and September 24, 2026, for $4,742,423.48.
4.4 FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT
WITH DAVIS FARR LLP FOR AUDITING SERVICES
Recommended Actions:
1. Approve the First Amendment to the Agreement with Davis Farr LLP for professional auditing services, extending the term through June 30, 2027, increasing compensation by $36,000 to a total contract amount not to exceed $165,000, and
2. Authorizing the City Manager to execute the amendment.
4.5 SECOND AMENDMENT TO THE AGREEMENT WITH DE NOVO PLANNING
GROUP FOR ON-CALL CEQA SERVICES
Recommended Action: Approve and authorize the City Manager to execute the Second Amendment to the professional services agreement with De Novo Planning Group for on-call CEQA services, increasing compensation by $100,000 for a total of $250,000 and extending the agreement term to June 30, 2027.
5. PUBLIC HEARINGS:
5.1 AMENDMENT TO OBJECTIVE DESIGN STANDARDS MANUAL
Director of Community Development So Kim provided an overview of proposed amendments to the City’s Objective Design Standards (ODS). Staff reviewed the City Council’s prior direction to remove the Modern Ranch and Modern architectural styles and presented the option of adding the Craftsman architectural style, including its defining features and proposed design requirements. The two options were to remove the Modern Ranch and Modern styles, or to remove those styles and add the Craftsman style. Staff requested Council direction on whether to include the Craftsman style in the ODS manual. 9
Minutes of the Regular
City Council Meeting
Mayor Duncan opened the public hearing. The following spoke on the matter:
1. Art Camoia recommended incorporating solar design standards into the Objective Design Standards (ODS) to accommodate solar installations and support energy requirements for affordable housing developments.
There were no other speakers, and Mayor Duncan closed the public hearing.
Council discussion followed.
Recommended Actions:
1. Find that the amendment to the ODS is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines.
2. Selection one:
• Adopt a resolution amending the Objective Design Standards manual to remove the Modern Ranch and Modern architectural styles; or • Adopt a resolution amending the Objective Design Standards manual to remove the Modern Ranch and Modern architectural styles and add the Craftsman architectural style.
Motion: Mayor Pro Tem Munzing moved to approve:
1. Find that the amendment to the ODS is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines.
2. Adopt Resolution No. 2026-25 entitled: : A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, AMENDING
THE OBJECTIVE DESIGN STANDARDS MANUAL TO REMOVE THE
MODERN RANCH AND MODERN ARCHITECTURAL STYLED, ADD
CRAFTSMAN ARCHITECTURAL STYLE, AND DETERMINE THE
ACTION TO EXEMPT FROM CEQA
Mayor Duncan seconded the motion. The motion carried 4-1, with Councilmember Zandbergen dissenting.
5.2 CONDITIONAL USE PERMIT TO EXPAND THE FLOOR AREA OF ALISO CROSSFIT AT 6 JOURNEY, SUITES 300 AND 325
Director of Community Development So Kim provided an overview of the request for approval of a Conditional Use Permit to allow Aliso CrossFit, located at 6 Journey, Suite 300, to expand its existing facility from approximately 2,500 to 5,000 square feet by occupying the adjacent suite. Staff reported that the business has operated at the location since 2011 and that a parking study confirmed sufficient parking for existing businesses and the proposed expansion, with a surplus of 111 parking spaces during peak hours. Staff recommended approval, finding that all required Conditional Use Permit findings could be met.
Mayor Duncan opened the public hearing. There were no speakers, and Mayor Duncan closed the public hearing. Council discussion followed. 10
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City Council Meeting
Recommended Action: Adopt Resolution No. 2026-26 entitled: A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALISO VIEJO,
CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT TO ALLOW ALISO CROSSFIT TO EXPAND ITS FLOOR AREA TO 4,911 SQUARE FEET AT 6 JOURNEY, SUITES 300 AND 325 (USE-2026-01011).
Motion: Councilmember Zandbergen moved, and Councilmember Dwyer seconded, approval of the recommended action. The motion carried 5-0.
5.3 GENERAL PLAN AMENDMENT GPA-2026-01002, ZONE CHANGE ZC-2026- 01001, VESTING TENTATIVE TRACT MAP 19489, SITE DEVELOPMENT PERMIT SDP-2026-01001, DEVELOPMENT AGREEMENT DA-2026-01002, AND ADOPTION OF MITIGATED NEGATIVE DECLARATION CEQA-2026- 01004 FOR THE DEVELOPMENT OF A 58-UNIT RESIDENTIAL
TOWNHOME COMMUNITY AT 15 ARGONAUT
Principal Planner Rose Rivera presented the proposed 58-unit townhome development at 15 Argonaut. The project includes a General Plan Amendment, Zone Change, Vesting Tentative Tract Map, Site Development Permit, Development Agreement, and associated California Environmental Quality Act (CEQA) documentation. Rivera outlined the five recommended actions before the Council.
The applicant, Emmanuel Robinson of Brandywine Homes, highlighted the development’s architectural design, all-electric homes, solar panels, electricvehicle charging capability, landscaped common areas, and preservation of approximately 1.94 acres of existing hillside. He also discussed the 24 guest parking spaces, private patio areas for 31 units, three very low-income affordable units, garage use, guest parking, and homeowners association (HOA) enforcement. The applicant confirmed that the all-electric homes would include solar panels and that garage parking requirements would be addressed in the association documents.
Staff and the applicant responded to questions regarding parking requirements, street parking, garage use, HOA enforcement, and the qualification, marketing, and selection process for the affordable homeownership units.
Mayor Duncan opened the public hearing. The following spoke on the matter:
1. Elizabeth Hansburg, of People for Housing, spoke in support of the development.
2. Art Camoia spoke in support of the development project.
There were no other speakers, and Mayor Duncan closed the public hearing.
Council discussion followed.
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Recommended Actions:
1. Adopt Resolution No. 2026-27 entitled: A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, ADOPTING A
MITIGATED NEGATIVE DECLARATION AND A MITIGATION
MONITORING AND REPORTING PROGRAM (CEQA-2026-01004)
PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
FOR GENERAL PLAN AMENDMENT GPA-2026-01002, ZONE CHANGE
ZC-2026-01001, VESTING TENTATIVE TRACT MAP 19489, AND
DEVELOPMENT AGREEMENT DA-2026-01002 TO ALLOW THE
DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME
COMMUNITY LOCATED AT 15 ARGONAUT (APN: 623-093-10 & 623- 093-11);
2. Adopt Resolution No. 2026-28 entitled: A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, APPROVING
AN AMENDMENT TO THE GENERAL PLAN LAND USE DESIGNATION
AND ASSOCIATED LAND USE MAP FROM BUSINESS PARK TO
MEDIUM DENSITY RESIDENTIAL FOR THE DEVELOPMENT OF A 58- UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15
ARGONAUT (APN: 623-093-10 & 623-093-11);
3. Introduce for first reading Ordinance No. 2026-255 entitled: AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ALISO VIEJO,
CALIFORNIA, APPROVING A ZONE CHANGE FROM BUSINESS PARK
2 TO MEDIUM DENSITY RESIDENTIAL DISTRICT FOR THE
DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME
COMMUNITY LOCATED AT 15 ARGONAUT (APN: 623-093-10 & 623- 093-11);
4. Adopt Resolution No. 2026-29 entitled: A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, APPROVING VESTING TENTATIVE TRACT MAP 19489 FOR SUBDIVISION INTO
CONDOMINIUM PURPOSES AND SITE DEVELOPMENT PERMIT (SDP2026-01001) TO ALLOW THE DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15
ARGONAUT (APN: 623-093-10 & 623-093-11); and
5. Introduce for first reading Ordinance No. 2026-256 entitled: AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT DA-2026-
01002 BETWEEN THE CITY AND BRANDYWINE ACQUISITION
GROUP, LLC, FOR THE DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT (APN: 623-
093-10 & 623-093-11).
Motion: Councilmember Dwyer moved, and Councilmember Ackley seconded, approval of the five recommended actions. The motion carried 5-0.
6. DISCUSSION:
None.
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7. CITY MANAGER’S REPORT:
City Manager Channing provided updates on the City’s 25 Businesses for 25 Years program and registration for fall recreation classes. He also announced Family Movie Night on October 16, 2026, beginning at 5:30 p.m. at Aliso Viejo Ranch, and the Artisans Market on Sunday, November 8, 2026, from 11:00 a.m. to 3:00 p.m. at Aliso Viejo Ranch.
8. ANNOUNCEMENTS / COUNCIL COMMENTS / COMMITTEE UPDATES:
Councilmember Ackley:
• Expressed concern regarding recent statements by the President of the United States referencing Los Angeles and San Diego, emphasizing the impact such remarks could have on residents and communities throughout Southern California.
She noted that the statements remained concerning regardless of context and chose to focus her comments on this issue rather than provide updates on meetings and events attended.
Councilmember Dwyer:
• Congratulated Mayor Duncan on a successful State of the City event. • Recognized the successful launch of the student financial literacy program in partnership with Aliso Niguel High School, and announced the next financial literacy session, scheduled for October 15, focusing on spending and budgeting, and encouraged high school students to participate.
• Attended OC Vector Control District Board meeting and provided update on mosquito activity.
• Thanked the Aliso Niguel High School ASB for hosting Community Night at their football game, which included breast cancer awareness activities, and congratulated the Wolverines on their 23–10 victory.
• Promoted the Boys & Girls Club Great Futures Market, held Wednesdays at 9:30 a.m., which provides grocery assistance to approximately 80–85 families weekly. • Recognized Councilmember Zandbergen for attending the Boys & Girls Club Youth of the Month event and congratulated the students and families recognized. • Expressed anticipation for the upcoming Principal for a Day event and encouraged Council participation.
Councilmember Zandbergen:
• Commended the successful State of the City event and expressed appreciation for the strong community attendance.
• Attended Boys & Girls Club Youth of the Month event.
• Announced plans to participate in Principal for a Day at Canyon Vista Elementary School the following Friday.
• Acknowledged community feedback and expressed appreciation for the support of the proposed development at 15 Argonaut.
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• Reported being sworn in as the District 4 Director of the League of California Cities, representing Aliso Viejo and neighboring cities, and highlighted the League’s role in advocating for local government interests and influencing state legislation. • Noted an upcoming Transportation Corridor Agencies (TCA) meeting to discuss toll road matters.
• Thanked attendees for their participation in the meeting.
Mayor Pro Tem Munzing:
• Thanked City staff, Mayor Duncan, and the Chamber of Commerce for organizing a successful State of the City event.
• Expressed appreciation for renewed efforts to promote volunteerism and encouraged expanding opportunities for community involvement in the coming year.
• Attended Orange County Fire Authority (OCFA) Board meeting and noted that the recruitment process for a permanent Fire Chief was ongoing. • Attended the local high school community football game and praised the team’s performance and the community’s participation in breast cancer awareness activities.
• Expressed appreciation for the community’s spirit and encouraged residents to stay safe.
Mayor Duncan:
• Expressed appreciation to everyone involved in organizing the State of the City event, particularly the Chamber of Commerce, and praised the event as an impressive and meaningful experience
9. ADJOURNMENT: Mayor Duncan adjourned the meeting at 9:06 p.m. The next regularly scheduled City Council meeting is Wednesday, October 21, 2026, at 7:00 p.m.
Respectfully submitted: Approved by:
_________________________ _____________________________
MARIA KENDIG MAX DUNCAN
CITY CLERK MAYOR
14 City of Aliso Viejo
AGENDA ITEM
DATE: October 21, 2026
TO: Mayor and City Council
FROM: Ann Eifert, Director of Financial Services
SUBJECT: ACCOUNTS PAYABLE
Recommended Action:
Ratify accounts payable checks and electronic funds transfers issued between September 25, 2026, and October 8, 2026, for $1,330,999.84.
Fiscal Impact:
Expenditures in the amount of $1,330,999.84.
Background:
The City issues accounts payable checks on a bi-weekly basis and presents them to the City Council for ratification at its next regularly scheduled City Council meeting.
Discussion:
The attached registers containing checks and electronic funds transfers issued between September 25, 2026, and October 8, 2026, for $1,330,999.84, are being presented for ratification. All payments have been made in compliance with the City’s purchasing policy and procedures. Payments have been reviewed and approved by the appropriate departmental staff. The issued accounts payable checks and electronic funds transfers have been reviewed and deemed in accordance with the fiscal year budget by the Director of Financial Services.
Attachment:
1. Accounts Payable Report
15 Accounts Payable
Vendor Name Description (Item) Amount
101 - GENERAL FUND
CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011805343 - 8/6 PH 6 JOURNEY 350&375-RYSK CUP 916.46 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808165 - 8/21 NOI MND 15 ARGONAUT 2,115.30 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808980 - 8/28 NOI MND-400-700 FREEDOM LANE 2,159.44 BEST BEST & KRIEGER AUG'26 BBK CEQA & ENVIRONMENTAL (SPECIALIZED)-SHEA 608.60 BEST BEST & KRIEGER AUG'26 BBK CEQA&ENVIRONMENTAL(SPECIALIZED)-POLARIS 143.20 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMBAIR)-MERITAGE 1,919.00 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMB(AIR)-95 ARGONAUT 2,088.50 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMB(AIR)-BRANDYWINE 2,198.00 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMB(AIR)-SHEA 4,896.50 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMB(AIR)-LENNAR 15,214.50 BEST BEST & KRIEGER AUG'26 APPLICANT-INITIATED/REIMB(AIR)-CITYSIDE 1,629.50 RICOH USA OCT'26 RICOH COPY ROOM LEASE (2624)- INT PAYABLE (0.38) RYAN BIRD 25-08-084_POOL2025-00011_1 LINDENGROVE_RYAN BIRD 3,000.00 JOE HUNT 26-05-053_POOL-2026-01007_43 ROCKROSE_JOE HUNT 3,000.00 GOLDEN K CONSTRUCTION LLC CD-2026-01012_1 DEERWOOD_GOLDEN K CONSTRUCTION 500.00 MADE BUILDING COMPANY CD-2026-01016_16 FRANCHESHI PL_MADE BUILDING CO 500.00 JOE HUNT CD-2026-01061_43 ROCKROSE_JOE HUNT 750.00
ROOF PRO CD2026-01069_29 SILVEROAK_ROOF PRO 500.00
ROOF PRO CD2026-01070_26 28 30 32 SILVEROAK_ROOF PRO 500.00 PAUL JENSEN TERRA TEC LANDSCAPE CD2026-01078_48 SUMMERLAND CIR_PAUL JENSEN TERRA T 500.00 ROOF PRO CD-2026-01091_2-4-6-8 SILVEROAK_ROOF PRO 500.00 43,638.62
CITY COUNCIL
AT&T 6/17/26-7/16/26 CITY COUNCIL PHONES 240.00
AT&T 7/17/26-8/16/26 CITY COUNCIL PHONES 240.00
AT&T 8/17/26-9/16/26 CITY COUNCIL PHONES 246.45
CITY COUNCIL TOTAL: 726.45
CITY MANAGER
AT&T 6/17/26-7/16/26 CITY MANAGER PHONE 120.73
AT&T 7/17/26-8/16/26 CITY MANAGER PHONE 227.98
AT&T 8/17/26-9/16/26 CITY MANAGER PHONE 181.83
CITY MANAGER TOTAL: 530.54
ECONOMIC DEVELOPMENT
ERIC WINTER SEP'26 BUS SPOTLIGHT - FS8 AV 822.97
ECONOMIC DEVELOPMENT TOTAL: 822.97
HUMAN RESOURCES
AT&T 6/17/26-7/16/26 HR PHONE 53.48
AT&T 7/17/26-8/16/26 HR PHONE 53.48
AT&T 8/17/26-9/16/26 HR PHONE 54.77
US BANK PURCHASING CARD PROGRAM CS 9/02 COSTCO - TRAINING 160.27 US BANK PURCHASING CARD PROGRAM CS 9/07 AMAZON - PROF TRAINING SUPPLIES 77.40 HEALTH AND HUMAN RESOURCE CENTER INC NOV'26 EAP PROGRAM 102.90 HUMAN RESOURCES TOTAL: 502.30
CITY CLERK
CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011805342-8/16 PN STUDY/REF0011806237-8/13 NIP 1,350.44 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808349 - 8/27 PN NOMINEES 11/3 ELEC.SPANISH 822.28 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011807176 - 8/14 PN INSUF NOMINEES-DISTRICT 4 1,599.58 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808353 - 8/27 PN NOMINEES 11/3 ELEC.VIETNMS 1,215.24 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808348 - 8/27 PN NOMINEES 11/3 ELEC.ENGLISH 834.43 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808354 - 8/27 PN NOMINEES 11/3 ELEC.ARABIC 1,119.77 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808350 - 8/27 PN NOMINEES 11/3 ELEC.CHINESE 854.43 CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808352 - 8/27 PN NOMINEES 11/3 ELEC.KOREAN 1,059.20 IPROMOTEU.COM INC RECOGNITION CERTIFICATES - QTY 500 288.22 US BANK PURCHASING CARD PROGRAM LL 9/01 AMAZON-CERT FOLDERS 57.84 US BANK PURCHASING CARD PROGRAM LL 9/22 CMCA-VIRTUAL WKSHP 10/21/26 - M.KENDIG 125.00 16 Vendor Name Description (Item) Amount
US BANK PURCHASING CARD PROGRAM LL 9/22 CMCA-MBSHP JUL'26-JUN'27 - M.KENDIG 300.00 CITY CLERK TOTAL: 9,626.43
CITY ATTORNEY
BEST BEST & KRIEGER AUG'26 BBK GENERAL RETAINER LEGAL SERVICES 26,617.00 BEST BEST & KRIEGER AUG'26 BBK CELLULAR 143.20
BEST BEST & KRIEGER AUG'26 BBK GENERAL PLAN/TOWN CENTER SPECIFIC PLAN 30.90 CITY ATTORNEY TOTAL: 26,791.10
FINANCE
STAPLES ADVANTAGE SEP'26 FIN OFFICE SUPPLIES 197.82
HINDERLITER DE LLAMAS & ASSOCIATES JUL-SEP'26 SALES TAX CONTRACT SERVICE 2,658.94 HINDERLITER DE LLAMAS & ASSOCIATES JUL-SEP'26 SALES TAX RECOVERY SERVICE 474.40 FINANCE TOTAL: 3,331.16
INFORMATION TECHNOLOGY
AT&T 8/22/26-9/21/26 AT&T CALNET CH-ALARM/POTS LINE 577.49 COX COMMUNICATIONS, INC SEP-OCT'26 ACCT#4801 RSM 12 JOURNEY 1G FIBER 1,650.40 AT&T JUN'26 CH AT&T FIBER INTERNET SERVICE 1,385.24
AT&T JUN'26 CH AT&T FIBER ADJUSTMENT 1.27
AT&T SEP'26 CH AT&T FIBER ADJUSTMENT 40.81
AT&T SEP'26 CH AT&T FIBER INTERNET SERVICE 1,385.24
AT&T 6/17/26-7/16/26 FLEET COMPLETE GPS 207.72
AT&T 6/17/26-7/16/26 CH MIFI 121.04
AT&T 6/17/26-7/16/26 EOC PHONES (1,389.15)
AT&T 6/17/26-7/16/26 EOC MIFI 154.60
AT&T PHONE PURCHASE 1,400.00
AT&T 7/17/26-8/16/26 FLEET COMPLETE GPS 207.72
AT&T 7/17/26-8/16/26 CH MIFI 121.04
AT&T 7/17/26-8/16/26 EOC MIFI 154.60
AT&T 7/17/26-8/16/26 EOC PHONES 72.76
AT&T 8/17/26-9/16/26 EOC PHONES 77.92
AT&T 8/17/26-9/16/26 FLEET COMPLETE GPS 213.92
AT&T 8/17/26-9/16/26 EOC MIFI 158.60
AT&T 8/17/26-9/16/26 CH MIFI 124.04
AT&T JUL'26 CH AT&T FIBER ADJUSTMENT 10.19
AT&T JUL'26 CH AT&T FIBER INTERNET SERVICE 1,385.24
AT&T AUG'26 CH AT&T FIBER ADJUSTMENT 1.28
AT&T AUG'26 CH AT&T FIBER INTERNET SERVICE 1,385.24
INFORMATION TECHNOLOGY TOTAL: 9,447.21
NON-DEPARTMENTAL
RICOH USA OCT'26 RICOH COPY ROOM LEASE (2624) - PRINCIPAL 647.76 RICOH USA OCT'26 RICOH COPY ROOM LEASE (2624) - INTEREST 46.82 BATTERY CONNECTION INC BATTERY REPLACEMENT - TRUCK 1-49811 244.44 BATTERY CONNECTION INC BATTERY REPLACEMENT - CORE CREDIT 1-49812 (54.00) IPROMOTEU.COM INC LOGO ENVELOPES - QTY OF 1000 541.12
IPROMOTEU.COM INC BUS CARDS-M.DUNCAN 70.76
RICOH USA SEP'26 RICOH RSI CLOUD SUBSCRIPTION (SW1860708) 25.53 STAPLES ADVANTAGE AUG'26 - COPY&BREAKROOM SUPPLIES NON DEPARTMENTAL 362.18 QUADIENT FINANCE USA, INC QUADIENT POSTAGE - ADDED 9/01/26 500.00 QUADIENT FINANCE USA, INC QUADIENT POSTAGE - PAST FEE REVERSALS CREDITED (134.00) NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE VISTA PARK 1,135.32 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE VISTA PARK 1,135.32 VOYAGER FLEET SYSTEMS INC SEP'26 VEHICLE FUEL 882.86
US BANK PURCHASING CARD PROGRAM CS 8/26 STARBUCKS - EE SOCIAL COMMITTEE PURCHASE 100.00 US BANK PURCHASING CARD PROGRAM JNL 8/26 SMARTANDFINAL-EMP APPREC LUNCHEON DRINKS 41.55 US BANK PURCHASING CARD PROGRAM LL 8/26 PRIMO BRANDS-WATER SERVICE 63.87 US BANK PURCHASING CARD PROGRAM LL 9/16 PANDA EXPRESS-CC MTG 9/16 DINNER 280.15 US BANK PURCHASING CARD PROGRAM LL 9/02 RALPHS-SODAS SEP'26 CC MTGS 71.34 US BANK PURCHASING CARD PROGRAM LL 9/02 RALPHS-SODAS SEP'26 CC MTGS (CREDIT) (5.38) US BANK PURCHASING CARD PROGRAM LL 9/02 TONY PEPPERONIS-CC MTG 9/02 DINNER5 294.90 US BANK PURCHASING CARD PROGRAM LL 9/02 PRIMO BRANDS-WATER SERVICE 86.89 US BANK PURCHASING CARD PROGRAM LL 9/16 NEKTER JUICE BAR-CC MTG 9/16 DINNER 12.69 MOULTON NIGUEL WATER DIST ACCT#64101 VISTA WATER SVC 1,391.48 NON-DEPARTMENTAL TOTAL: 7,741.60
17 Vendor Name Description (Item) Amount
C. S. ADMINISTRATION
DP TRADING INC 2026 VETERANS PINS 295.50
BAKER GROUP INC 10/16/26 MOVIE NIGHT SCREEN/EQUIP & MOVIE LICENSE 1,300.00 ADVANTAGE MAILING, LLC ARTISANS MARKET ACRYLIC SIGNAGE 103.71 THE GLENNWOOD FOUNDATION, INC FY26-27 CAS GRANT- THE GLENWOOD FOUNDATION 2,500.00 US BANK PURCHASING CARD PROGRAM EM RCS 9/16 FIVE STAR-CITIZEN OF THE YEAR PLAQUES 808.13 US BANK PURCHASING CARD PROGRAM EM RCS 9/18 HOMEGOODS-TROPHIES FOR PET FAIR EVENT 15.16 US BANK PURCHASING CARD PROGRAM JB 9/02 FUNEXPRESS-TREE LIGHTING CRAFTS PT2 529.03 US BANK PURCHASING CARD PROGRAM JB 9/02 FUNEXPRESS-TREE LIGHTING CRAFTS 144.49 US BANK PURCHASING CARD PROGRAM JB 9/01 COSTCO-BREAKROOM & CLEANING SUPPLIES 28.00 US BANK PURCHASING CARD PROGRAM JB 9/02 COSTCO-BREAKROOM & CLEANING SUPPLIES 51.70 US BANK PURCHASING CARD PROGRAM JB 9/02 COSTCO-BREAKROOM & CLEANING SUPPLIES 65.16 US BANK PURCHASING CARD PROGRAM JB 9/01COSTCO-BREAKROOM & CLEANING SUPPLIES 79.15 US BANK PURCHASING CARD PROGRAM JNL 9/16 FACEBK-BOOSTED IG POST 2.87 US BANK PURCHASING CARD PROGRAM JNL 9/18 BESTOFSIGNS.COM-STEP & REPEAT 807.32 US BANK PURCHASING CARD PROGRAM LL 9/01 FACEBK-META ADS 105.00 US BANK PURCHASING CARD PROGRAM LL 9/8 FACEBK-META ADS 105.00 C. S. ADMINISTRATION TOTAL: 6,940.22
IGLESIA PARK
EL TORO WATER DISTRICT 8/11/26-9/10/26 MTR#4114 IGLESIA PARK WATER 1,384.68 EL TORO WATER DISTRICT 8/11/26-9/10/26 MTR#3499 IGLESIA PARK WATER 1,571.24 DAVID HAUPTMAN CO., INC SOCCER NETS FOR IGLESIA PARK (2) 668.05 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE IGLESIA PARK 7,553.66 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE IGLESIA PARK 7,553.66 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE-IRRIGATION IGLESIA 352.33 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE-IRRIGATION IGLESIA 200.42 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE-FENCE IGLESIA 117.29 IGLESIA PARK TOTAL: 19,401.33
IGLESIA BUILDING
EL TORO WATER DISTRICT 8/11/26-9/10/26 MTR#5016 IGLESIA PARK BLDG WATER 354.79 IGLESIA BUILDING TOTAL: 354.79
IGLESIA PARK COMMUNITY CENTER
BOYS & GIRLS CLUB OF CAPISTRANO VALLEY JUL'26 B&GCCV 20,000.00 IGLESIA PARK COMMUNITY CENTER TOTAL: 20,000.00
PLANNING
LG2WB ENGINEERS,INC JUL'26 EVACUATION ASSESSMENT-SAFETY ELEMENT 11,466.00 LG2WB ENGINEERS,INC AUG'26 EVACUATION ASSESSMENT-SAFETY ELEMENT 10,982.00 US BANK PURCHASING CARD PROGRAM SK 8/25 OC CLERK RECORDER - FEE FOR CC&RS 109.00 PLANNING TOTAL: 22,557.00
BUILDING
STAPLES ADVANTAGE AUG'26 BLDG/PLNG OFFICE SUPPLIES 12.11 BUILDING TOTAL: 12.11
ENGINEERING (GENERAL)
QUANG LE 9/15/26 SOUTH OC CITY ENG MEETING REIMB - QL 36.00 SHAUN PELLETIER 9/21/26 SOUTH OC CITY ENG MEETING REIMB - SP 36.00 MURPHY SWITCH OF CA OCT'26 MURCAL IOT SMARTCOMMAND MONITORING SERVICE 450.00 AT&T 6/17/26-7/16/26 PUBLIC WORKS TABLETS 121.43
AT&T 7/17/26-8/16/26 PUBLIC WORKS TABLETS 118.96
AT&T 8/17/26-9/16/26 PUBLIC WORKS TABLETS 103.62
RICHARD FISHER ASSOCIATES JUL'26 LANDSCAPE INSPECTION GENERAL 3,748.49 RICHARD FISHER ASSOCIATES AUG'26 LANDSCAPE INSPECTION GENERAL 4,313.63 COUNTY OF ORANGE NPDES WATER QUALITY IMPLEMENTATION 26-27 1,022.82 US BANK PURCHASING CARD PROGRAM SP 8/29 UBER - APWA CONF AIRPORT TRANSFER 27.93 US BANK PURCHASING CARD PROGRAM SP 8/29 MARRIOTT - APWA CONF HOTEL 1,215.04 US BANK PURCHASING CARD PROGRAM SP 8/29 SD PARK SHUTTL - APWA CONF AIRPORT PARKING 99.50 US BANK PURCHASING CARD PROGRAM SP 8/29 DOORDASH - APWA CONF DINNER 33.66 US BANK PURCHASING CARD PROGRAM SP 8/29 UBER - APWA CONF AIRPORT TRANSFER 30.94 US BANK PURCHASING CARD PROGRAM SP 8/29 MARRIOTT - APWA CONF DINNER 29.90 US BANK PURCHASING CARD PROGRAM SP 8/29 DOORDASH - APWA CONF DINNER 27.72 US BANK PURCHASING CARD PROGRAM SP 8/29 UBER - APWA CONF AIRPORT TRANSFER 7.00 US BANK PURCHASING CARD PROGRAM SP 8/29 HOU AIRP KILLENS BBQ - APWA CONF DINNER 29.47 US BANK PURCHASING CARD PROGRAM SP 8/29 UBER - APWA CONF AIRPORT TRANSFER 7.00 18 Vendor Name Description (Item) Amount
US BANK PURCHASING CARD PROGRAM SP 8/29 UBER - APWA CONF AIRPORT TRANSFER 7.00 ENGINEERING (GENERAL) TOTAL: 11,466.11
STREET MAINTENANCE
RICHARD FISHER ASSOCIATES JUL'26 LANDSCAPE INSPECTION MEDIANS 330.12 RICHARD FISHER ASSOCIATES AUG'26 LANDSCAPE INSPECTION MEDIAN 1,010.66 STREET MAINTENANCE TOTAL: 1,340.78
LAW ENFORCEMENT-CONTRACT
COUNTY OF ORANGE OCT'26 LAW ENFORCEMENT CONTRACT 929,124.00 COUNTY OF ORANGE OCT'26 BWC/TASER 1,597.20
COUNTY OF ORANGE OCT'26 MOTORCYCLE REPLACEMENT COSTS 88.06 COUNTY OF ORANGE OCT'26 ML.E. EARLY PAYMENT DISCOUNT - 0.25% (2,389.71) COUNTY OF ORANGE OCT'26 BODY WORN CAMERA 7,878.36
COUNTY OF ORANGE OCT'26 IN CAR VIDEO 3,781.89
LAW ENFORCEMENT-CONTRACT TOTAL: 940,079.80
LAW ENFORCEMENT-OTHER
STAPLES ADVANTAGE AUG'26 POLICE SERVICES OFFICE SUPPLIES 626.89 COUNTY OF ORANGE AUG'26 TECH CHARGES/RADIO REPAIRS 82.25 LAW ENFORCEMENT-OTHER TOTAL: 709.14
EOC
US BANK PURCHASING CARD PROGRAM LL 9/14 EXTRA SPACE-OFFSITE STORAGE #A1554 384.00 EOC TOTAL: 384.00
GENERAL FUND TOTAL: 1,126,403.66
102 - GEN. FD-CITY HALL
NON-DEPARTMENTAL
THURSTON ELEVATOR CONCEPTS INC OCT'26 ELEVATOR MAINTENANCE CH 143.00 UNITED BUILDING AND DEVELOPMENT SERVICES LLC AUG'26 BATHROOM LEAK REPAIR/DRYWALL & PAINT-CH 5,560.00 SO CAL EDISON SEP'26 ACCT#7189 CH ELECTRICITY 9,747.71
NIEVES LANDSCAPE INC APR'26 LANDSCAPE MAINTENANCE-PLANTS CH 95.20 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE CH 748.08 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE CH 748.08 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE-DEAD TREE CH 242.44 US BANK PURCHASING CARD PROGRAM KB 8/28 AMAZON - WIRE CONNECTION TERMINALS CH 21.54 US BANK PURCHASING CARD PROGRAM KB 9/08THE HOME DEPOT-TERMINAL CRIMP HVAC REPAIRCH 36.60 US BANK PURCHASING CARD PROGRAM KB 9/08 THE HOME DEPOT-PLUMBING REPAIR CH 74.68 MOULTON NIGUEL WATER DIST ACCT#65408/65407/65406 CH WATER SVC 860.78 NON-DEPARTMENTAL TOTAL: 18,278.11
GEN. FD-CITY HALL TOTAL: 18,278.11
103 - GF-AV RECREATION SERVICES
RAMSEY YUNIS REFUND FACILITY RENTAL_REC115193222_RAMSEY YUNIS 5,600.00 RAMSEY YUNIS REFUND FEE 91+DAYS_REC115193222_RAMSEY YUNIS (250.00) 5,350.00
RECREATION SERVICES
AT&T 8/22/26-9/21/26 AT&T CALNET AVR-ALARM/POTS LINE 192.49 JENNIFER BALES FALL2026-ATM018 STORYTIME-5 PARTICIPANTS 75.00 GARDAWORLD OCT'26 AVR - CASH COURIER SERVICE 553.60
AT&T JUN'26 AVR AT&T INTERNET SERVICE 1,165.25
AT&T SEP'26 AVR AT&T INTERNET SERVICE 1,165.25
AT&T 6/17/26-7/16/26 RECREATION TABLETS 40.74
AT&T 6/17/26-7/16/26 RECREATION PHONES 91.96
AT&T 7/17/26-8/16/26 RECREATION TABLETS 40.74
AT&T 7/17/26-8/16/26 RECREATION PHONES 91.96
AT&T 8/17/26-9/16/26 RECREATION PHONES 94.54
AT&T 8/17/26-9/16/26 RECREATION TABLETS 41.74
AT&T JUL'26 AVR AT&T INTERNET SERVICE 1,165.25
CINTAS CORPORATION NO. 2 SEP'26 AVR FIRST AID SUPPLIES 164.26 STAPLES ADVANTAGE AUG'26 RCS OFFICE SUPPLIES 93.28
STAPLES ADVANTAGE SEP'26 RCS OFFICE SUPPLIES 375.79
AT&T AUG'26 AVR AT&T INTERNET SERVICE 1,165.25
RUIHONG LI FALL2026-ATM236/239 YOGA+PILATES-5 PARTICIPANTS 304.80 BREAKTHROUGH SPORTS HOLDCO, LLC FALL2026-ATM047/350/123 SPORTS-17 PARTICIPANTS 918.00 19 Vendor Name Description (Item) Amount
NIEVES LANDSCAPE INC APR'26 LANDSCAPE MAINTENANCE-PLANTS AVR 140.60 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE AVR 2,496.56 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE AVR 2,496.56 US BANK PURCHASING CARD PROGRAM JNL 9/08 SPOTIFY-RCS DEPARTMENT ACCOUNT 18.99 US BANK PURCHASING CARD PROGRAM JNL 8/24 WAYFAIR-GREENROOM FURNITURE RETURN (459.00) US BANK PURCHASING CARD PROGRAM KB 9/04 THE HOME DEPOT-BATTS BATHROOM FIXTURES AVR 84.53 US BANK PURCHASING CARD PROGRAM KB 9/06 EBAY - KEYS FOR FIRE PANEL AVR 51.25 US BANK PURCHASING CARD PROGRAM KB 9/21 KEYBLANKS - BLANK KEYS AVR 71.21 MOULTON NIGUEL WATER DIST ACCT#105234/104936/104935/104986 RANCH WATER SVC 1,862.10 MOULTON NIGUEL WATER DIST ACCT#104515/104519 FARM WATER SVC 447.80 RECREATION SERVICES TOTAL: 14,950.50
GF-AV RECREATION SERVICES TOTAL: 20,300.50
203 - GAS TAX
TRAFFIC ENGINEERING
ITERIS, INC AUG'26 TRAFFIC SIGNAL OPS 6,071.72
RK ENGINEERING GROUP INC AUG'26 SILKWOOD & CANYON VISTAS ALL-WAY-STOP ANAL 1,567.00 TRAFFIC ENGINEERING TOTAL: 7,638.72
STREET MAINTENANCE
EL TORO WATER DISTRICT 8/11/26-9/10/26 MTR#5675 CALLE CORTEZ MEDIAN WATER 210.43 BEAR ELECTRICAL SOLUTIONS INC AUG'26 TRAFFIC SIGNAL MAINTENANCE ROUTINE 3,225.90 BEAR ELECTRICAL SOLUTIONS INC AUG'26 TRAFFIC SIGNAL MAINTENANCE RESPONSE 10,677.64 SO CAL EDISON SEP'26 ACCT#7241 LS1 ST LIGHTS ELECTRICITY 18,762.52 SO CAL EDISON SEP'26 ACCT#6377 LS2 ST LIGHTS ELECTRICITY 1,258.14 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE MEDIANS 1,749.94 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE MEDIANS 1,749.94 UNDERGROUND SERVICE ALERT OF SOUTHERN CA SEP'26 USA DATABASE MAINT + 40 TICKETS 95.25 SAN DIEGO GAS & ELECTRIC AUG'26 ST LIGHTS & TRAFFIC CTRLRS 2,598.12 SCA OF CA LLC SEP'26 STREET SWEEPING SERVICES 11,297.00 MOULTON NIGUEL WATER DIST ACCT#64613/64615/65346 MEDIANS WATER SVC 1,559.06 STREET MAINTENANCE TOTAL: 53,183.94
GAS TAX TOTAL: 60,822.66
215 - PUBLIC SAFETY GRANTS
LAW ENFORCEMENT-OTHER
COUNTY OF ORANGE OCT'26 E-CITATION REPLACEMENT COSTS 195.31 COUNTY OF ORANGE OCT'26 E-CITATION RECURRING COSTS 465.27 COUNTY OF ORANGE OCT'26 MDC REPLACEMENT COSTS 1,637.19
COUNTY OF ORANGE OCT'26 MDC RECURRING COSTS 5,018.94
COUNTY OF ORANGE OCT'26 MOTORCYCLE 3,443.42
LAW ENFORCEMENT-OTHER TOTAL: 10,760.13
PUBLIC SAFETY GRANTS TOTAL: 10,760.13
231 - OTHER GRANTS
OTHER GRANTS
HARBOR STATION MAINTENANCE AUG'26-JUN'27 35 PLAYA CIR HOA FEES 2,145.00 COUNTY OF ORANGE OCT'26 BEHAVIORAL HEALTH BUREAU - PLHA GRANT 2,652.50 OTHER GRANTS TOTAL: 4,797.50
OTHER GRANTS TOTAL: 4,797.50
241 - TECHNOLOGY FUND
GEN-TECHNOLOGY GRANTS
COX COMMUNICATIONS, INC SEP-OCT'26 ACCT#4801 RSM METRO 150.00 GRANICUS LLC OCT-DEC'26 GRANICUS WEBCASTING 5,059.52
ERIC WINTER SEP'26-CC MTGS 9/2 & 9/16 SPORTSZONE 2-6 & ADMIN 1,543.12 ERIC WINTER STATE OF THE CITY VIDEO - 09/23/26 4,088.35 GEN-TECHNOLOGY GRANTS TOTAL: 10,840.99
TECHNOLOGY FUND TOTAL: 10,840.99
20 Vendor Name Description (Item) Amount
251 - FEDERAL GRANTS
GEN-FEDERAL GRANT
CALIFORNIA NEWSPAPERS PARTNERSHIP REF0011808251 - 8/27 PN CDBG CAPER 1,256.66 GEN-FEDERAL GRANT TOTAL: 1,256.66
FEDERAL GRANTS TOTAL: 1,256.66
261 - CITY FAC.-AQUATIC CENTER
PREMIER AQUATIC SERVICES OCT'26 AQC MANAGEMENT FEE RETENTION (1,208.30) -1,208.30
GEN-AQUATIC CENTER
UNITED BUILDING AND DEVELOPMENT SERVICES LLC JUL'26 UNCLOG DRAINS AND INSTALL NEW TRAPS-AQC 1,568.00 NIEVES LANDSCAPE INC APR'26 LANDSCAPE MAINTENANCE-PLANTS AQC 95.20 NIEVES LANDSCAPE INC JUL'26 LANDSCAPE MAINTENANCE-IRRIGATION AQC 284.46 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE AQC 1,006.80 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE AQC 1,006.80 NIEVES LANDSCAPE INC AUG'26 LANDSCAPE MAINTENANCE-IRRIGATION AQC 115.40 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE-IRRIGATION AQC 1,187.83 NIEVES LANDSCAPE INC SEP'26 LANDSCAPE MAINTENANCE-STRAWBERRY TREE AQC 350.19 US BANK PURCHASING CARD PROGRAM KB 9/18 THE HOME DEPOT-TIMER WALL PLATE REPAIR AQC 6.14 PREMIER AQUATIC SERVICES OCT'26 AQC MANAGEMENT FEES 12,083.00 MOULTON NIGUEL WATER DIST ACCT#64095/64096 AQC WATER SVC 1,832.87 GEN-AQUATIC CENTER TOTAL: 19,536.69
CITY FAC.-AQUATIC CENTER TOTAL: 18,328.39
311 - STREET IMPROVEMENTS
STREETS & HIGHWAYS
GMU GEOTECHNICAL INC JUL'26 CEDARBROOK PAVEMENT REHAB GEOTECH 2,904.84 GMU GEOTECHNICAL INC AUG'26 ALISO VIEJO PARKWAY REHAB GEOTECH 18,013.34 GMU GEOTECHNICAL INC AUG'26 CEDARBROOK PAVEMENT REHAB GEOTECH 11,922.52 SOUTHERN CALIFORNIA PRECISION CONCRETE INC SEP'26 CEDARBROOK SIDEWALK REHAB 18,775.54 RK ENGINEERING GROUP INC JUL'26 CITYWIDE BIKE LANE STRIPING PLAN-DESIGN 3,685.00 RK ENGINEERING GROUP INC AUG'26 CITYWIDE BIKE LANE STRIPING PLAN-DESIGN 2,910.00 STREETS & HIGHWAYS TOTAL: 58,211.24
STREET IMPROVEMENTS TOTAL: 58,211.24
721 - COMMUNITY TRUST
TRUST FUND
US BANK PURCHASING CARD PROGRAM JB 9/02 FUNEXPRESS-TREE LIGHTING CRAFTS 1,000.00 TRUST FUND TOTAL: 1,000.00
COMMUNITY TRUST TOTAL: 1,000.00
GRAND TOTAL: 1,330,999.84
Fund Summary
Fund Expense Amount Payment Amount
101 - GENERAL FUND 1,126,403.66 1,126,403.66
102 - GEN. FD-CITY HALL 18,278.11 18,278.11
103 - GF-AV RECREATION SERVICES 20,300.50 20,300.50
203 - GAS TAX 60,822.66 60,822.66
215 - PUBLIC SAFETY GRANTS 10,760.13 10,760.13
231 - OTHER GRANTS 4,797.50 4,797.50
241 - TECHNOLOGY FUND 10,840.99 10,840.99
251 - FEDERAL GRANTS 1,256.66 1,256.66
261 - CITY FAC.-AQUATIC CENTER 18,328.39 18,328.39
311 - STREET IMPROVEMENTS 58,211.24 58,211.24
721 - COMMUNITY TRUST 1,000.00 1,000.00
Grand Total: 1,330,999.84 1,330,999.84
21 Accounts Payable Payable Dates: 9/25/2026 - 10/8/2026 10/7/2026 3:05:44 PM Page 7 of 9
Report Summary
Fund Summary
Fund Payment Amount
101 - GENERAL FUND 1,126,403.66
102 - GEN. FD-CITY HALL 18,278.11
103 - GF-AV RECREATION SERVICES 20,300.50
203 - GAS TAX 60,822.66
215 - PUBLIC SAFETY GRANTS 10,760.13
231 - OTHER GRANTS 4,797.50
241 - TECHNOLOGY FUND 10,840.99
251 - FEDERAL GRANTS 1,256.66
261 - CITY FAC.-AQUATIC CENTER 18,328.39
311 - STREET IMPROVEMENTS 58,211.24
721 - COMMUNITY TRUST 1,000.00
Grand Total: 1,330,999.84
Account Summary
Account Number Account Name Payment Amount
101-2104-000 INTEREST PAYABLE -0.38
101-2601-000 REFUNDABLE DEPOSIT 6,000.00
101-2602-000 PLANNING DEPOSIT 32,259.50
101-2603-000 ENGINEERING DEPOSIT 1,629.50
101-2606-000 C & D DEPOSIT 3,750.00
101-4-1101-4511-000 COMMUNICATION 726.45
101-4-1501-4511-000 COMMUNICATION 530.54
101-4-1502-4302-000 ECONOMIC DEVELOPM… 822.97
101-4-1503-4309-000 OTHER CONTRACTUAL S… 264.63
101-4-1503-4520-000 MTGS/CONF./TRNG & D… 237.67
101-4-1601-4303-000 LEGAL NOTICES 1,350.44
101-4-1601-4502-000 AWARDS & RECOGNITI… 346.06
101-4-1601-4520-000 MTGS/CONF./TRNG & D… 125.00
101-4-1601-4521-000 MEMBERSHIP & DUES 300.00
101-4-1601-4525-000 ELECTION 7,504.93
101-4-2101-4304-000 LEGAL SERVICES 26,617.00
101-4-2101-4532-000 SPECIAL PROJECTS 143.20
101-4-2101-4731-000 GENERAL PLAN 30.90
101-4-2501-4301-000 PROFESSIONAL SERVICES 3,133.34
101-4-2501-4601-000 SUPPLIES 197.82
101-4-3101-4305-000 TECHNOLOGY SERVICES 8,047.21
101-4-3101-4481-000 COMPUTER EXPENSE 1,400.00
101-4-3501-4422-000 EQUIP RENTAL LEASE - P… 647.76
101-4-3501-4431-000 BUILDING & GROUND M… 3,662.12
101-4-3501-4512-000 POSTAGE 366.00
101-4-3501-4513-000 PRINTING 637.41
101-4-3501-4516-000 FUEL 882.86
101-4-3501-4517-000 VEHICLE MAINTENANCE 190.44
101-4-3501-4542-000 INTEREST EXPENSE - LEA… 46.82
101-4-3501-4601-000 SUPPLIES 362.18
101-4-3501-4612-000 OPERATING SUPPLIES 946.01
101-4-4101-4501-000 ADVERTISING & PROMO… 212.87
101-4-4101-4527-000 REC-CITY SPECIAL EVENTS 4,003.34
101-4-4101-4533-000 COMMUNITY ASSISTAN… 2,500.00
101-4-4101-4601-000 SUPPLIES 224.01
101-4-4102-4411-000 UTILITIES 2,955.92
101-4-4102-4431-000 BUILDING & GROUND M… 16,445.41
101-4-4103-4411-000 UTILITIES 354.79
101-4-4104-4529-000 REC-YOUTH PROGRAMS 20,000.00
101-4-4401-4513-000 PRINTING 109.00
101-4-4401-4731-000 GENERAL PLAN 22,448.00
101-4-4402-4612-000 OPERATING SUPPLIES 12.11
22 Accounts Payable Payable Dates: 9/25/2026 - 10/8/2026 10/7/2026 3:05:44 PM Page 8 of 9
Account Summary
Account Number Account Name Payment Amount
101-4-4501-4520-000 MTGS/CONF/TRNG & D… 1,587.16
101-4-4501-4562-000 PERMITS 1,022.82
101-4-4501-4612-000 OPERATING SUPPLIES 344.01
101-4-4501-4701-000 NPDES 450.00
101-4-4501-4741-000 C.S-CITY ENGINEERING 8,062.12
101-4-4503-4771-000 C.S-STREET MAINTENAN… 1,340.78
101-4-5101-4308-000 LAW ENFORCEMENT 940,079.80
101-4-5102-4462-000 EQUIP MAINT-800MHZ … 82.25
101-4-5102-4612-000 OPERATING SUPPLIES 626.89
101-4-5401-4471-000 RENT 384.00
102-4-3501-4411-000 UTILITIES 10,608.49
102-4-3501-4431-000 BUILDING & GROUND M… 7,669.62
103-34130 FACILITY RENTAL 5,600.00
103-34169 REFUNDS -250.00
103-4-4105-4305-000 TECHNOLOGY SERVICES 4,872.48
103-4-4105-4309-000 OTHER CONTRACTUAL S… 1,297.80
103-4-4105-4411-000 UTILITIES 1,862.10
103-4-4105-4431-000 BUILDING & GROUND M… 5,340.71
103-4-4105-4451-000 FARM OPERATING EXPE… 447.80
103-4-4105-4511-000 COMMUNICATION 401.68
103-4-4105-4561-000 TAXES/FEES/PERMITS 553.60
103-4-4105-4601-000 SUPPLIES 633.33
103-4-4105-4620-000 MINOR EQUIPMENT -459.00
203-4-4502-4301-000 PROFESSIONAL SERVICES 7,638.72
203-4-4503-4411-000 UTILITIES 24,388.27
203-4-4503-4771-000 C.S-STREET MAINTENAN… 17,498.67
203-4-4503-4772-000 C.S-STREET SWEEPING 11,297.00
215-4-5102-4803-000 PUBLIC SAFETY EQUIPM… 10,760.13
231-4-6131-4309-000 OTHER CONTRACTUAL S… 4,797.50
241-4-6141-4309-000 OTHER CONTRACTUAL S… 5,631.47
241-4-6141-4481-000 IT/COMPUTER EQUIPM… 5,209.52
251-4-6151-4309-000 OTHER CONTRACTUAL S… 1,256.66
261-2103-000 RETENTIONS PAYABLE -1,208.30
261-4-6161-7411-000 UTILITIES 1,832.87
261-4-6161-7421-000 BUILDING & GROUND M… 5,620.82
261-4-6161-7451-000 MANAGEMENT FEES 12,083.00
311-4-8301-5501-000 DESIGN 6,595.00
311-4-8301-5601-000 CONSTRUCTION MANA… 32,840.70
311-4-8301-5701-000 CONSTRUCTION 18,775.54
721-4-7501-6103-000 COLLABORATIVE EVENTS… 1,000.00
Grand Total: 1,330,999.84
Project Account Summary
Project Account Key Payment Amount
**None** 1,229,004.26
1002FALL 1,297.80
10044309 4,797.50
1005-IDDE 1,022.82
1005-MUNI OPS 450.00
1385601 18,013.34
1405601 14,827.36
1405701 18,775.54
1425501 6,595.00
9014612 653.70
9934527 673.52
9936103 1,000.00
ENG 5081 1,629.50
GPA-2026-01003 15,214.50
23 Accounts Payable Payable Dates: 9/25/2026 - 10/8/2026 10/7/2026 3:05:44 PM Page 9 of 9
Project Account Summary
Project Account Key Payment Amount
GRA-2025-00005 2,088.50
SDP-2024-00002 4,078.44
SDP-2025-00004 5,505.10
SDP-2026-01000 143.20
SDP-2026-01001 4,313.30
USE-2026-01006 916.46
Grand Total: 1,330,999.84
24 City of Aliso Viejo
AGENDA ITEM
DATE: October 21, 2026
TO: Mayor and City Council
FROM: Ann Eifert, Director of Financial Services/City Treasurer SUBJECT: TREASURER’S STATEMENT – AUGUST 2026
Recommended Action:
Receive and file the August 2026 Treasurer’s Statement.
Fiscal Impact:
No Fiscal Impact.
Background:
Per City policy, the Finance Department presents the monthly Treasurer’s Statement for the City Council’s review. This statement shows the cash balance for all City funds, a breakdown of bank account balances, investment account balances and the effective yield earned from investments.
Discussion:
The City’s portfolio consists of investments in Certificates of Deposits, US Treasuries, US Federal Agencies, Corporate Bonds, and Local Agency Investment Fund (LAIF). All funds invested with LAIF are available for withdrawal within 24 hours.
The Treasurer’s Statement provides information regarding the City’s investment portfolio and activity during the reporting month. The City’s investment portfolio is in compliance with all government codes as well as the City’s investment policy. Interest is credited to the City’s bank account monthly and allocated among the City’s funds. The current portfolio provides sufficient cash flow liquidity to meet the upcoming operating expenses and spending requirements for the next 6 months.
Attachment:
Attachment 1 – August 2026 Treasurer’s Statement
25 TREASURER'S MONTHLY CASH STATEMENT
BEGINNING ENDING
BALANCE RECEIPTS DISBURSEMENTS BALANCE
CASH BALANCE (ALL FUNDS) $ 11,903,546.29 $ 4,395,733.60 $ 3,045,006.98 $ 13,254,272.91 CITY TRUST FUNDS:
AV RANCH FOUNDATION $ 100.00 100.00
CFD 2005-01 $ (2,372.00) 1,640.00 (4,012.00)
COMMUNITY TRUST $ 8,618.48 1,000.00 3,000.00 6,618.48
CASH BALANCE TOTALS $ 11,909,892.77 $ 4,396,733.60 $ 3,049,646.98 $ 13,256,979.39 SUMMARY OF CASH:
DEMAND DEPOSITS: GENERAL ACCOUNT $ 649,426.93
INVESTMENTS: LOCAL AGENCY INVESTMENT FD $ 12,514,997.01 MONEY MARKET/SWEEP ACCOUNT $ 92,555.45
TOTAL CASH $ 13,256,979.39
Years to Maturity for August 2026 1.90
Weighted Average Yield for August 2026 3.970%
All investments are placed in accordance with the City of Aliso Viejo's Investment Policy.
The above summary provides sufficient cash flow liquidity to meet the next six month's estimated expenditures.
Other monies held include Cash with Fiscal Agent, Investments, Payroll and AV Center. $ 52,128,517.22 Cash With Fiscal Agent COPS/CFD 2005-01 2,983,913.55
Cash With Investment Advisor City Investments 47,900,376.84 AV Center 1,167,152.96
PR Account 75,153.61
Petty Cash 1,920.26
GRAND TOTAL OF CITY FUNDS $ 65,385,496.61
CITY OF ALISO VIEJO
August 31, 2026
26 CURRENT MONTH Beginning 47,868,251.13 0.00 0.00 (299.34) 0.00 (458.06) Interest Received 125,438.56 ENDING 47,992,932.29 35.06% 22.24% 20.67% 11.59% 8.68% 1.61% 0.15% CITY OF ALISO VIEJO 27 CUSIP DESCRIPTION INTEREST YIELD TO MOODY'S S&P LGIP CALAIF California LAIF 08/31/2026 08/31/2026 12,514,997.01 12,514,997.01 0.00 12,514,997.01 3.86 1 1.00 12,514,997.01 0.00 12,514,997.01 20.67 NA 12,514,997.01 12,514,997.01 0.00 12,514,997.01 3.86 1 1.00 12,514,997.01 0.00 12,514,997.01 20.67 31846V567 FIRST AMER:GVT OBLG;Z 08/31/2026 08/31/2026 92,555.45 92,555.45 0.00 92,555.45 3.56 1 1.00 92,555.45 0.00 92,555.45 0.15 Aaa AAA 92,555.45 92,555.45 0.00 92,555.45 3.56 1 1.00 92,555.45 0.00 92,555.45 0.15 62479MJJ3 MUFG BANK NY 09/18/26 04/13/2026 04/13/2026 1,005,000.00 988,018.29 0.00 988,018.29 3.92 09/18/2026 18 99.82 1,003,172.85 15,154.56 988,018.29 1.66 P-1 A-1 22533UK69 CREDIT AGRI NY 10/06/26 01/09/2026 01/09/2026 1,300,000.00 1,264,022.50 0.00 1,264,022.50 3.80 10/06/2026 36 99.64 1,295,336.25 31,313.75 1,264,022.50 2.14 P-1 A-1 8923A1ND9 TOYO CRD PUE RIC 01/13/27 05/08/2026 05/11/2026 1,500,000.00 1,461,303.33 0.00 1,461,303.33 3.86 01/13/2027 135 98.60 1,479,006.67 17,703.34 1,461,303.33 2.44 P-1 A-1+ 53948BNS4 LLOYDS BK NY BR 01/26/27 05/08/2026 05/11/2026 1,500,000.00 1,458,400.01 0.00 1,458,400.01 3.95 01/26/2027 148 98.43 1,476,480.00 18,079.99 1,458,400.01 2.44 P-1 A-1 5,305,000.00 5,171,744.13 0.00 5,171,744.13 3.88 92 99.04 5,253,995.77 82,251.64 5,171,744.13 8.68 91282CJP7 US TREASURY 4.375 12/15/26 05/06/2025 05/08/2025 1,000,000.00 1,007,695.31 0.00 1,007,695.31 3.87 12/15/2026 106 100.14 1,001,367.19 (6,328.12) 1,007,695.31 1.65 Aa1 AA+ 91282CJT9 US TREASURY 4.000 01/15/27 01/22/2024 01/22/2024 1,000,000.00 996,718.75 0.00 996,718.75 4.12 01/15/2027 137 100.03 1,000,312.50 3,593.75 996,718.75 1.65 Aa1 AA+ 912828X88 US TREASURY 2.375 05/15/27 06/29/2022 06/29/2022 1,000,000.00 962,851.56 0.00 962,851.56 3.20 05/15/2027 257 98.79 987,851.56 25,000.00 962,851.56 1.63 Aa1 AA+ 9128282R0 US TREASURY 2.250 08/15/27 01/13/2023 01/13/2023 1,050,000.00 990,322.27 0.00 990,322.27 3.60 08/15/2027 349 98.16 1,030,681.64 40,359.37 990,322.27 1.70 Aa1 AA+ 9128284N7 US TREASURY 2.875 05/15/28 09/18/2024 09/19/2024 1,000,000.00 979,882.81 0.00 979,882.81 3.47 05/15/2028 623 97.63 976,328.13 (3,554.68) 979,882.81 1.61 Aa1 AA+ 91282CCR0 US TREASURY 1.000 07/31/28 09/18/2024 09/19/2024 1,000,000.00 910,507.81 0.00 910,507.81 3.50 07/31/2028 700 93.91 939,140.63 28,632.82 910,507.81 1.55 Aa1 AA+ 91282CCV1 US TREASURY 1.125 08/31/28 12/21/2023 12/21/2023 1,000,000.00 878,750.00 0.00 878,750.00 3.98 08/31/2028 731 93.90 938,984.38 60,234.38 878,750.00 1.55 Aa1 AA+ 91282CDF5 US TREASURY 1.375 10/31/28 12/21/2023 12/21/2023 1,500,000.00 1,328,906.25 0.00 1,328,906.25 3.98 10/31/2028 792 93.89 1,408,359.38 79,453.13 1,328,906.25 2.33 Aa1 AA+ 91282CJR3 US TREASURY 3.750 12/31/28 01/22/2024 01/22/2024 1,000,000.00 987,695.31 0.00 987,695.31 4.03 12/31/2028 853 98.63 986,250.00 (1,445.31) 987,695.31 1.63 Aa1 AA+ 28 CUSIP DESCRIPTION INTEREST YIELD TO MOODY'S S&P 9128286T2 US TREASURY 2.375 05/15/29 11/17/2025 11/18/2025 700,000.00 671,179.69 0.00 671,179.69 3.64 05/15/2029 988 94.90 664,289.07 (6,890.62) 671,179.69 1.10 Aa1 AA+ 91282CLC3 US TREASURY 4.000 07/31/29 07/14/2025 07/15/2025 1,000,000.00 1,002,304.69 0.00 1,002,304.69 3.94 07/31/2029 1,065 98.90 988,984.38 (13,320.31) 1,002,304.69 1.63 Aa1 AA+ 91282CLR0 US TREASURY 4.125 10/31/29 11/25/2024 11/26/2024 1,000,000.00 996,445.31 0.00 996,445.31 4.21 10/31/2029 1,157 99.13 991,250.00 (5,195.31) 996,445.31 1.64 Aa1 AA+ 91282CGB1 US TREASURY 3.875 12/31/29 02/07/2025 02/10/2025 1,000,000.00 978,828.13 0.00 978,828.13 4.36 12/31/2029 1,218 98.27 982,734.38 3,906.25 978,828.13 1.62 Aa1 AA+ 91282CMG3 US TREASURY 4.250 01/31/30 05/06/2025 05/08/2025 1,000,000.00 1,015,507.81 0.00 1,015,507.81 3.89 01/31/2030 1,249 99.41 994,062.50 (21,445.31) 1,015,507.81 1.64 Aa1 AA+ 91282CGS4 US TREASURY 3.625 03/31/30 11/18/2025 11/19/2025 700,000.00 698,851.56 0.00 698,851.56 3.67 03/31/2030 1,308 97.30 681,078.13 (17,773.44) 698,851.56 1.12 Aa1 AA+ 91282CMZ1 US TREASURY 3.875 04/30/30 05/06/2025 05/08/2025 1,000,000.00 998,867.19 0.00 998,867.19 3.90 04/30/2030 1,338 98.09 980,937.50 (17,929.69) 998,867.19 1.62 Aa1 AA+ 91282CNK3 US TREASURY 3.875 06/30/30 10/20/2025 10/21/2025 600,000.00 607,898.44 0.00 607,898.44 3.57 06/30/2030 1,399 97.98 587,859.38 (20,039.06) 607,898.44 0.97 Aa1 AA+ 91282CPN5 US TREASURY 3.500 11/30/30 02/13/2026 02/17/2026 500,000.00 497,382.81 0.00 497,382.81 3.62 11/30/2030 1,552 96.24 481,210.94 (16,171.87) 497,382.81 0.79 Aa1 AA+ 91282CJQ5 US TREASURY 3.750 12/31/30 02/02/2026 02/03/2026 600,000.00 597,843.75 0.00 597,843.75 3.83 12/31/2030 1,583 97.14 582,843.75 (15,000.00) 597,843.75 0.96 Aa1 AA+ 91282CPW5 US TREASURY 3.750 01/31/31 06/01/2026 06/02/2026 200,000.00 196,367.19 0.00 196,367.19 4.18 01/31/2031 1,614 97.09 194,187.50 (2,179.69) 196,367.19 0.32 Aa1 AA+ 91282CPW5 US TREASURY 3.750 01/31/31 02/02/2026 02/03/2026 600,000.00 597,867.19 0.00 597,867.19 3.83 01/31/2031 1,614 97.09 582,562.50 (15,304.69) 597,867.19 0.96 Aa1 AA+ 91282CQD6 US TREASURY 3.500 02/28/31 04/16/2026 04/17/2026 625,000.00 613,793.95 0.00 613,793.95 3.91 02/28/2031 1,642 96.06 600,390.63 (13,403.33) 613,793.95 0.99 Aa1 AA+ 91282CQU8 US TREASURY 4.125 05/31/31 06/10/2026 06/11/2026 1,500,000.00 1,490,976.56 1,859.63 1,492,836.19 4.26 05/31/2031 1,734 98.45 1,476,796.88 (14,179.69) 1,490,976.56 2.44 Aa1 AA+ 91282CRA1 US TREASURY 4.375 07/31/31 07/28/2026 07/31/2026 1,175,000.00 1,175,963.87 0.00 1,175,963.87 4.36 07/31/2031 1,795 99.48 1,168,849.62 (7,114.25) 1,175,963.87 1.93 Aa1 AA+ 21,750,000.00 21,183,408.21 1,859.63 21,185,267.84 3.89 1,020 97.64 21,227,312.54 43,904.33 21,183,408.21 35.06 880591EU2 TVA 2.875 02/01/27 05/06/2025 05/08/2025 1,000,000.00 983,560.00 0.00 983,560.00 3.86 02/01/2027 154 99.51 995,060.00 11,500.00 983,560.00 1.64 Aa1 AA+ 3130ASD63 FHLBANKS 3.250 06/28/27 06/28/2022 06/28/2022 1,000,000.00 1,000,000.00 0.00 1,000,000.00 3.25 06/28/2027 301 99.09 990,890.00 (9,110.00) 1,000,000.00 1.64 Aa1 AA+ 3133EPAU9 FED FARM CR BNKS 3.875 07/14/27 02/16/2023 02/16/2023 1,000,000.00 990,390.00 0.00 990,390.00 4.12 07/14/2027 317 99.67 996,650.00 6,260.00 990,390.00 1.65 Aa1 AA+ 3133EWGK0 FED FARM CR BNKS 3.630 03/09/28 '27 07/01/2026 07/02/2026 1,150,000.00 1,138,902.50 13,103.29 1,152,005.79 4.23 03/09/2028 556 98.82 1,136,418.50 (2,484.00) 1,138,902.50 1.88 Aa1 AA+ 3130AMX98 FHLBANKS 2.000 06/30/28 07/10/2025 07/11/2025 1,000,000.00 947,446.00 0.00 947,446.00 3.89 06/30/2028 669 95.67 956,680.00 9,234.00 947,446.00 1.58 Aa1 AA+ 3133EMSX1 FED FARM CR BNKS 1.550 03/15/29 '26 02/06/2025 02/07/2025 500,000.00 447,120.00 0.00 447,120.00 4.39 03/15/2029 927 92.72 463,590.00 16,470.00 447,120.00 0.77 Aa1 AA+ 29 CUSIP DESCRIPTION INTEREST YIELD TO MOODY'S S&P 3130B2GZ2 FHLBANKS 4.200 08/13/29 '26 08/21/2024 08/23/2024 250,000.00 250,000.00 0.00 250,000.00 4.20 08/13/2029 1,078 98.48 246,207.50 (3,792.50) 250,000.00 0.41 Aa1 AA+ 3133EL6D1 FED FARM CR BNKS 1.230 09/10/29 '26 02/06/2025 02/07/2025 500,000.00 434,525.00 0.00 434,525.00 4.41 09/10/2029 1,106 90.48 452,390.00 17,865.00 434,525.00 0.75 Aa1 AA+ 880591FE7 TVA 3.875 08/01/30 09/18/2025 09/19/2025 800,000.00 804,848.00 0.00 804,848.00 3.74 08/01/2030 1,431 97.70 781,600.00 (23,248.00) 804,848.00 1.29 Aa1 AA+ 7,200,000.00 6,996,791.50 13,103.29 7,009,894.79 3.94 620 97.57 7,019,486.00 22,694.50 6,996,791.50 11.59 254673N44 CAPITL ONE NA 3.500 07/29/27 08/03/2022 08/03/2022 245,000.00 245,000.00 0.00 245,000.00 3.50 07/29/2027 332 98.86 242,213.68 (2,786.32) 245,000.00 0.40 NANA 87164XN93 SYNCHRONY BANK 3.500 08/05/27 08/05/2022 08/05/2022 245,000.00 245,000.00 0.00 245,000.00 3.50 08/05/2027 339 99.35 243,407.50 (1,592.50) 245,000.00 0.40 NANA 02589ADQ2 AM EX BK 3.450 08/10/27 08/12/2022 08/12/2022 245,000.00 243,775.00 0.00 243,775.00 3.56 08/10/2027 344 99.29 243,270.30 (504.70) 243,775.00 0.40 NANA 58404DVV0 MEDALLION BANK 3.800 08/30/29 08/21/2024 08/30/2024 245,000.00 245,000.00 0.00 245,000.00 3.80 08/30/2029 1,095 100.00 245,000.00 0.00 245,000.00 0.40 NANA 980,000.00 978,775.00 0.00 978,775.00 3.59 529 99.38 973,891.48 (4,883.52) 978,775.00 1.61 14913UAR1 CTRPLLR FIN SERV 4.400 10/15/27 MTN 11/25/2024 11/26/2024 500,000.00 498,865.00 0.00 498,865.00 4.48 10/15/2027 410 99.98 499,910.00 1,045.00 498,865.00 0.83 A1A 69353RFG8 PNC BANK 3.100 10/25/27 '27 MTN 04/09/2026 04/10/2026 1,000,000.00 985,110.00 0.00 985,110.00 4.11 10/25/2027 420 98.49 984,900.00 (210.00) 985,110.00 1.63 A2A 24422EWR6 JOHN DEERE CAP 4.750 01/20/28 MTN 11/25/2024 11/26/2024 500,000.00 504,235.00 0.00 504,235.00 4.46 01/20/2028 507 100.43 502,160.00 (2,075.00) 504,235.00 0.83 A1A 023135DB9 AMAZON.COM 3.850 03/13/28 04/16/2026 04/17/2026 750,000.00 748,035.00 2,727.08 750,762.08 3.99 03/13/2028 560 99.06 742,950.00 (5,085.00) 748,035.00 1.23 A1 AA 931142FB4 WALMART 3.900 04/15/28 '28 11/25/2024 11/26/2024 325,000.00 320,619.00 0.00 320,619.00 4.33 04/15/2028 593 99.22 322,478.00 1,859.00 320,619.00 0.53 Aa2 AA 931142ES8 WALMART 1.500 09/22/28 '28 07/10/2025 07/11/2025 1,000,000.00 925,020.00 0.00 925,020.00 4.02 09/22/2028 753 94.32 943,230.00 18,210.00 925,020.00 1.56 Aa2 AA 14913UBD1 CTRPLLR FIN SERV 3.950 11/14/28 MTN 11/17/2025 11/18/2025 700,000.00 699,804.00 0.00 699,804.00 3.96 11/14/2028 806 98.58 690,053.00 (9,751.00) 699,804.00 1.14 A1A 58933YBD6 MERCK & CO 1.900 12/10/28 '28 11/25/2024 11/26/2024 500,000.00 452,905.00 0.00 452,905.00 4.47 12/10/2028 832 94.32 471,605.00 18,700.00 452,905.00 0.78 Aa3A+ 17275RBR2 CISCO SYSTEMS 4.850 02/26/29 '29 11/01/2024 11/04/2024 500,000.00 506,060.00 0.00 506,060.00 4.53 02/26/2029 910 100.49 502,470.00 (3,590.00) 506,060.00 0.83 A1 AA- 023135CG9 AMAZON.COM 3.450 04/13/29 '29 11/01/2024 11/04/2024 500,000.00 481,580.00 0.00 481,580.00 4.37 04/13/2029 956 97.03 485,140.00 3,560.00 481,580.00 0.80 A1 AA 30303M8S4 META PLATFORMS 4.300 08/15/29 '29 11/01/2024 11/04/2024 500,000.00 496,070.00 0.00 496,070.00 4.48 08/15/2029 1,080 99.17 495,825.00 (245.00) 496,070.00 0.82 Aa3 AA- 857449AE2 STATE STR BK TR 4.782 11/23/29 11/25/2024 11/26/2024 500,000.00 502,115.00 0.00 502,115.00 4.69 11/23/2029 1,180 100.21 501,035.00 (1,080.00) 502,115.00 0.83 Aa2 AA30 CUSIP DESCRIPTION INTEREST YIELD TO MOODY'S S&P 713448GB8 PEPSICO 4.600 02/07/30 '30 02/05/2025 02/07/2025 500,000.00 499,160.00 0.00 499,160.00 4.64 02/07/2030 1,256 99.73 498,645.00 (515.00) 499,160.00 0.82 A1 A+ 717081EY5 PFIZER 1.700 05/28/30 '30 08/21/2025 08/22/2025 625,000.00 556,418.75 0.00 556,418.75 4.27 05/28/2030 1,366 89.26 557,856.25 1,437.50 556,418.75 0.92 A2A 713448GH5 PEPSICO 4.300 07/23/30 '30 08/21/2025 08/22/2025 625,000.00 626,756.25 0.00 626,756.25 4.24 07/23/2030 1,422 98.91 618,168.75 (8,587.50) 626,756.25 1.02 A1 A+ 58933YBQ7 MERCK & CO 4.150 09/15/30 '30 09/22/2025 09/23/2025 800,000.00 803,696.00 0.00 803,696.00 4.05 09/15/2030 1,476 97.59 780,720.00 (22,976.00) 803,696.00 1.29 Aa3A+ 166756BJ4 CHEVRON USA 4.300 10/15/30 '30 10/20/2025 10/21/2025 500,000.00 506,945.00 0.00 506,945.00 3.98 10/15/2030 1,506 98.56 492,790.00 (14,155.00) 506,945.00 0.81 Aa2 AA- 02079KBK2 ALPHABET 4.100 02/15/31 '31 02/20/2026 02/23/2026 600,000.00 601,350.00 0.00 601,350.00 4.05 02/15/2031 1,629 96.68 580,104.00 (21,246.00) 601,350.00 0.96 Aa2 AA+ 24422EYL7 JOHN DEERE CAP 4.200 03/10/31 MTN 03/09/2026 03/10/2026 1,000,000.00 1,004,170.00 0.00 1,004,170.00 4.11 03/10/2031 1,652 97.16 971,590.00 (32,580.00) 1,004,170.00 1.60 A1A 30303MAF9 META PLATFORMS 4.550 05/15/31 '31 06/01/2026 06/02/2026 1,000,000.00 995,440.00 3,538.89 998,978.89 4.65 05/15/2031 1,718 97.73 977,290.00 (18,150.00) 995,440.00 1.61 Aa3 AA- 69371RU61 PACCAR 4.850 08/10/31 MTN 08/13/2026 08/14/2026 850,000.00 855,304.00 458.06 855,762.06 4.71 08/10/2031 1,805 99.76 847,917.50 (7,386.50) 855,304.00 1.40 A1 A+ 13,775,000.00 13,569,658.00 6,724.03 13,576,382.03 4.29 1,122 97.83 13,466,837.50 (102,820.50) 13,569,658.00 22.24 CITY OF ALISO VIEJO TOTAL 61,617,552.46 60,507,929.30 21,686.95 60,529,616.25 3.97 696 60,549,075.75 41,146.45 60,507,929.30 100.00 61,617,552.46 60,507,929.30 21,686.95 60,529,616.25 3.97 696 60,549,075.75 41,146.45 60,507,929.30 100.00 31 CUSIP DESCRIPTION INTEREST YIELD 08/13/2026 08/14/2026 69371RU61 PACCAR 4.850 08/10/31 MTN 850,000.00 855,304.00 458.06 (855,762.06) 4.71 850,000.00 855,304.00 458.06 (855,762.06) 4.71 CUSIP DESCRIPTION NET 08/04/2026 08/04/2026 02007GXG3 Ally Bank 3.45 08/04/2026 (245,000.00) 245,000.00 245,000.00 0.00 08/11/2026 08/11/2026 38149MYB3 Goldman Sachs Bank USA 1.0 08/11/2026 (245,000.00) 245,000.00 245,000.00 0.00 08/11/2026 08/11/2026 90348JR93 UBS Bank USA, National Association 0.95 08/11/2026 (245,000.00) 245,000.00 245,000.00 0.00 (735,000.00) 735,000.00 735,000.00 0.00 32 LAIF Monthly Statements
LAIF Monthly Statement
CITY OF ALISO VIEJO
DIRECTOR OF FINANCIAL SVCS/ CITY TREAS
12 JOURNEY, #100
ALISO VIEJO, CA 92656
LAIF Account #: 98-30-007
August 2026 Statement
Effective
Date
TXN
Date
TXN
Type
Confirm
Number
Web
Confirm
Number
Authorized Caller Amount
8/5/2026 8/5/2026 RW 1805516 1766218 ANN EIFERT -200,000.00 8/11/2026 8/11/2026 RW 1805722 1766436 ANN EIFERT -200,000.00 8/27/2026 8/26/2026 RD 1806355 1767067 ANN EIFERT 2,000,000.00 Account Summary
Beginning Balance: 10,914,997.01
Total Deposit: 2,000,000.00
Total Withdrawal: -400,000.00
Ending Balance: 12,514,997.01
Official website of the State of California
9/14/26, 8:38 AM LAIF Monthly Statements | State of California Office of the State Treasurer https://www.treasurer.ca.gov/regular-statement 33
August 3.863
July 3.840
June 3.816
May 3.810
April 3.811
March 3.826
LAIF Apportionment Rate(2): 3.92
LAIF Earnings Ratio(2): 0.00010743238142967
LAIF Administrative Cost(1)*: .22
PMIA Average Life(1): 269
LAIF Fair Value Factor(1): 0.998872382
PMIA Daily(1): 3.83
PMIA Quarter to Date(1): 3.81
Treasuries
59.41%
Agencies
20.35%
Certificates of
Deposit/Bank Notes
10.37%
Time
Deposits
3.02%
Commercial
Paper
6.10%
Corporate
Bonds
0.62%
Loans
0.13%
Notes: The apportionment rate includes interest earned on the CalPERS Supplemental Pension Payment pursuant to Government Code 20825 (c)(1) .
*The percentage of administrative cost equals the total administrative cost divided by the quarterly interest earnings. The law provides that administrative costs are not to exceed 5% of quarterly EARNINGS of the fund. However, if the 13-week Daily Treasury Bill Rate on the last day of the fiscal year is below 1%, then administrative costs shall not exceed 8% of quarterly EARNINGS of the fund for the subsequent fiscal year.
Source:
(1) State of California, Office of the Treasurer
(2) State of California, Office of the Controller
PMIA Average Monthly
Effective Yields(1)
PMIA/LAIF Performance Report
as of 09/16/26
Daily rates are now available here. View PMIA Daily Rates Quarterly Performance
Quarter Ended 06/30/26
Chart does not include $722,000.00 in mortgages, which equates to 0.0004%. Percentages may not total 100% due to rounding.
Pooled Money Investment Account
Monthly Portfolio Composition (1)
07/31/26
$179.8 billion
34 City of Aliso Viejo
AGENDA ITEM
DATE: October 21, 2026
TO: Mayor and City Council
FROM: Maria Kendig, Director of Government Services/City Clerk SUBJECT: SECOND READING AND ADOPTION OF AN ORDINANCE APPROVING A ZONE CHANGE FROM BUSINESS PARK 2 TO MEDIUM DENSITY
RESIDENTIAL DISTRICT FOR PROPERTY LOCATED AT 15
ARGONAUT
Recommended Action:
Conduct a second reading and adopt an Ordinance entitled:
ORDINANCE NO. 2026-255: AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A ZONE CHANGE FROM BUSINESS PARK 2 TO MEDIUM DENSITY RESIDENTIAL DISTRICT FOR THE DEVELOPMENT OF A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT (623-093-10 AND 623-093-11)
Fiscal Impact:
None.
Discussion:
On October 7, 2026, the City Council approved the introduction and first reading of Ordinance No. 2026-255 by a 5-0 vote. The Council is now being asked to conduct the second reading and consider adoption of the Ordinance approving a zone change for the property at 15 Argonaut.
The proposed zone change would change the zoning designation of the two parcels at 15 Argonaut from Business Park 2 to Medium Density Residential District. The change is associated with the proposed Presidio at Pacific Park project, which would replace an existing office building with a 58-unit townhome community in 10 buildings. The project description identifies three units restricted to very low-income households, enclosed two-car garages for the homes, 24 guest parking spaces, and common landscaped areas that include barbecue and seating areas and a dog park. The project also proposes to preserve the existing landscaped slopes along Glenwood Drive and Aliso Creek Road. Additional project information and plans are available on the City’s 15 Argonaut project webpage:
https://avcity.org/426/15-Argonaut.
35 A zone change amends the zoning designation that applies to a property and determines the land uses allowed under the City’s zoning regulations. If adopted, this Ordinance would change the zoning designation for the subject property from Business Park 2 to Medium Density Residential District. The Ordinance concerns the zone change; please refer to the City’s project webpage and the other applicable project documents for additional information about the proposed development.
The ordinance summary was posted on the City’s Legal Notices webpage (https://avcity.org/299/Legal-Notices) and published in the Laguna Niguel News on October 15, 2026.
If adopted, the Ordinance will take effect 30 days after adoption. This item is limited to the second reading and adoption of the zone-change Ordinance. The recommended action is to adopt the Ordinance as presented.
Attachment:
Proposed Ordinance
36
ORDINANCE NO. 2026-255
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ALISO VIEJO, CALIFORNIA, APPROVING A ZONE
CHANGE FROM BUSINESS PARK 2 TO MEDIUM
DENSITY RESIDENTIAL DISTRICT FOR THE
DEVELOPMENT OF A 58-UNIT RESIDENTIAL
TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT
(623-093-10 AND 623-093-11)
WHEREAS, on April 15, 2026, Brandywine Acquisition Group, LLC. (“Applicant”) submitted a general plan amendment, zone change, vesting tentative tract map, site development permit, and a development agreement application to demolish an existing office building and accommodate the construction of a multi-family residential community at 15 Argonaut (“Project”);
WHEREAS, pursuant to section 21067 of the Public Resources Code, and section 15367 of the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the City is the lead agency for the proposed Project and has prepared an Initial Study/Mitigated Negative Declaration (SCH #2026080753) (“IS/MND”) and a Mitigation Monitoring and Reporting Program (“MMRP”) for the Project;
WHEREAS, on October 7, 2026, the City Council held a duly noticed public hearing to receive and consider public testimony and evidence regarding the Project; WHEREAS, on September 15, 2026, the City gave public notice of the City Council public hearing for consideration of Mitigated Negative Declaration CEQA-2026-01004, General Plan Amendment GPA-2026-01002, Zone Change ZC-2026-00001, Vesting Tentative Tract Map 19489, Site Development Permit SDP-2026-01001 and Development Agreement DA-2026-01002 for the Project by publishing in a newspaper of general circulation; by posting notices at City Hall and the Project site; and by mailing notices to owners of property within 300 feet, to the project applicant, and to local agencies that provide water, sewage, electricity and schools;
WHEREAS, on October 7, 2026, the City Council held a duly noticed public hearing as prescribed by law and considered written and verbal public testimony that was submitted prior to the hearing and during the hearing, and evidence and recommendations presented by staff in the agenda report and oral presentation and introduced the Ordinance; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALISO VIEJO DOES ORDAIN AS FOLLOWS:
37
Section 1. Incorporation of Recitals. The City Council hereby finds and determines that all of the recitals set forth above are true and correct. The above recitals are hereby incorporated as substantive findings of this Ordinance.
Section 2. CEQA. Pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.) and the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (Collectively, “CEQA”), the City Council adopted Resolution No.2026-27, determining that there is no substantial evidence that the approval of the Project would result in a significant adverse effect on the environment, provided appropriate mitigation measures, as identified in the MMRP, are imposed on the Project;
Section 3. Findings for Zone Change ZC-2026-00001. Pursuant to AVMC 15.78.040 (Zone Change and Prezoning), the City Council hereby makes the following findings of fact and approves the Zone Change ZC-2026-00001 from Business Park 2 to Medium Density Residential, as set forth in Exhibit “A”, which is attached hereto and incorporated herein by reference.
1. Public Welfare. Approval of the zone change will not create conditions materially detrimental to the public health, safety and general welfare. While the Site is located within a larger business park area, it is situated in proximity to the recently approved 95 Argonaut residential development, which also involved the redevelopment of a business park use for residential use. Similar to 95 Argonaut, the proposed Project would introduce a three-story attached townhome development at a scale compatible with existing residential neighborhoods that are located directly north of the Site across Glenwood Drive, including both multi-family and single-family residential development. The proposed Project incorporates similar architectural features as 95 Argonaut and adjacent residential communities such as stucco exteriors, tile roofs, wrought-iron balconies, recessed entries, and shared open-space areas. As proposed, the Project incorporates architectural and site design elements that are generally consistent with the character of nearby residential development and would provide a transition between the surrounding residential neighborhoods and the remaining business park uses in the area. Both projects feature multi-story attached residential units with comparable architectural character, private garages, guest parking, landscaped common open space, and enhanced site entries. Additionally, the Site is situated in an area with established infrastructure, including roads, utilities, and public services, that can adequately support residential development. As part of the environmental assessment, the Project required comprehensive studies addressing air quality, energy, greenhouse gas emissions, biological resources, cultural resources, geotechnical conditions, hydrology and water quality, noise, and transportation impacts. As discussed further in the Environmental Assessment section below, these studies concluded that the Project would result in less-than-significant impacts with the implementation of proposed mitigation measures. The Project plans also cleared preliminary review by the Orange County Fire Authority (OCFA). Furthermore, the Project aligns with the City’s housing goals by facilitating the development of new 38
housing opportunities. Future construction on the Site will be subject to plan check review and inspection process to ensure full compliance with applicable building and safety standards.
2. General Plan Consistency. The amendment is internally consistent with those goals, objectives, and policies of the general plan that are not being amended. The proposed amendment is consistent with the goals and policies of the General Plan listed below in that it incorporates landscaping aligned with the City Councilapproved plant palette, emphasizing low-water, drought-tolerant species; features building materials, colors, and architectural design that are compatible with the surrounding residential communities; public benefit fees ; proposes three affordable housing units restricted to very low-income households, thereby enhancing housing diversity and affordability; and introduces rezoning to facilitate residential development that includes affordable units in support of the City’s housing objectives. In the General Plan, 'COS' refers to Conservation and Open Space policies, 'H' for Housing policies and goals, and 'LU' for Land Use policies. Policy COS-1.2 Reduce the amount of water used for landscaping and increase use of native and low water plants. Maximize use of native, low-water plants for landscaping of areas adjacent to sidewalks or other impermeable surfaces. Policy COS-4.2 Encourage and maintain high-quality architectural and landscaping designs that enhance or complement the community’s visual character.
Policy COS-7.5 Ensure that new development provides park land and/or improvements at a fair share ratio, pursuant to the City’s Parkland Ordinance. Goal H-1: Encourage a diversity of housing types and provide affordability levels within Aliso Viejo to meet the needs of community residents. Policy H-1.1 Identify sites appropriate for the development of a variety of housing types and price ranges to meet the needs of all socioeconomic segments of the community through the disbursement of affordable units in projects.
Policy H-1.2 Encourage through the use of density bonuses and rezoning to allow for residential development, development of affordable housing opportunities throughout the community, as well as development of housing for elderly and low- and moderate-income households near public transportation services.
Policy H-1.4 Ensure that a portion of future residential development is affordable to low- and very-low-income households by designating certain sites as having the potential to be used for residential uses. Policy H-3.8 Review existing zoning policies and explore zoning changes to facilitate the development of affordable housing.
Policy LU-12.2 As a condition upon new development, require payment of park fees and/or dedication and provision of parkland, recreation facilities and/or multi-use trails that improve the public and private recreation system. 39
3. Land Use Compatibility. The zone change is compatible with the zoning and land use on nearby properties. The Site is located at the edge of a larger business park and directly across from established multi-family and single-family residential neighborhoods. The proposed project is similar to a recently approved development at 95 Argonaut project, which is located on the same street within the same business park area. Both projects involve the conversion of an office property to a residential townhome community and introduce a land use that is compatible with nearby residential neighborhoods. The adjacent multi-family development shares several characteristics with the Project, including large attached-unit buildings, stucco exteriors, tile roofing, wrought iron balconies, recessed entryways, and shared open space without private driveways. These similarities ensure architectural and functional continuity between the Project and existing residential uses. The proposed land use designation therefore complements the surrounding residential character.
4. Property Suitability. The zone change is suitable for the location, access, visual character and topography of the subject property. The property is located along established roadways with adequate vehicular and pedestrian access and is supported by existing infrastructure, including utilities and public services, sufficient to accommodate residential development. The Site is generally flat within the developed portion, with sloped areas adjacent to Glenwood Drive and Aliso Creek Road. The proposed Project would retain the existing slope, utilize existing access from Argonaut, and incorporate site improvements consistent with applicable engineering and design standards. The proposed residential development includes architectural, landscaping, and site design elements that are similar to those found in nearby residential communities north of the Site, including attached residential development across Glenwood Drive and also the recently approved residential townhomes at 95 Argonaut. In addition, the Site is located between existing residential neighborhoods and surrounding business park uses, making it suitable for the proposed Medium Density Residential land use designation.
Section 4. Severability. If any provision of this Ordinance or its application to any person or circumstance is held to be invalid by a court of competent jurisdiction, such invalidity has no effect on the other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this Ordinance are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
Section 5. Location of Documents. The administrative record for the Project is maintained at City Hall located at 12 Journey, Suite 100, Aliso Viejo, CA 92656. The custodian of records is the City Clerk.
Section 6. Effective Date. This Zone Change Ordinance shall not take effect unless and until General Plan Amendment 2026-01002, Vesting Tentative Tract Map 19489, Site Development Permit SDP-2026-01001 and Development Agreement 2026- 40
01002 are each approved by the City Council and have become effective, and the associated Development Agreement is approved by the City Council and executed by both parties thereto.
Section 7. City Clerk’s Certification. The City Clerk shall certify to the adoption of this Ordinance and cause a summary thereof to be published five days prior to the date of adoption of this Ordinance, and, within 15 days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk.
PASSED, APPROVED AND ADOPTED this 21st day of October, 2026. __________________________
Max Duncan
Mayor
APPROVED AS TO FORM:
___________________________
Scott C. Smith,
City Attorney
ATTEST:
___________________________
Maria Kendig,
City Clerk
41
Exhibit “A”
Zone Change Map
Case No. ZC-2026-01001
Property Location – 15 Argonaut (see red-circled area below) Existing Zoning District Designation – Business Park 2 (“BP-2”) Proposed Zoning District Designation – Medium Density Residential (Max. 18 units/acre) (“MDR”)
42 City of Aliso Viejo
AGENDA ITEM
DATE: October 21, 2026
TO: Mayor and City Council
FROM: Maria Kendig, Director of Government Services/City Clerk SUBJECT: SECOND READING AND ADOPTION OF AN ORDINANCE APPROVING
A DEVELOPMENT AGREEMENT WITH BRANDYWINE HOMES FOR
PROPERTY LOCATED AT 15 ARGONAUT
Recommended Action:
Conduct a second reading and adopt an Ordinance entitled:
ORDINANCE NO. 2026-256: AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ALISO VIEJO, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY AND BRANDYWINE HOMES FOR THE DEVELOPMENT OF PRESIDIO AT PACIFIC PARK, A 58-UNIT RESIDENTIAL TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT (APN: 623-093-10 & 623- 093-11)
Fiscal Impact:
None.
Discussion:
On October 7, 2026, the City Council approved the introduction and first reading of Ordinance No. 2026-256 by a 5-0 vote. The Council is now being asked to consider the second reading and adoption of the Ordinance approving a Development Agreement between the City and Brandywine Homes for Presidio at Pacific Park.
The proposed project at 15 Argonaut would replace an existing office building with a 58-unit townhome community in 10 buildings. The project description identifies three units restricted to very low-income households, enclosed two-car garages for the homes, 24 guest parking spaces, and common landscaped areas that include BBQ and seating areas and a dog park.
The project also proposes to preserve the existing landscaped slopes along Glenwood Drive and Aliso Creek Road. Additional project information and plans are available on the City’s 15 Argonaut project webpage: https://avcity.org/426/15-Argonaut.
A development agreement establishes contractual terms between the City and the project applicant for the development described in the agreement. The specific terms and obligations 43 are set out in the proposed agreement attached to the Ordinance. Councilmembers and the public should refer to the attachment for the complete agreement.
The ordinance summary was posted on the City’s Legal Notices webpage (https://avcity.org/299/Legal-Notices ) and published in the Laguna Niguel News on October 15, 2026.
If adopted, the Ordinance will take effect 30 days after adoption. This item is the second reading of the Ordinance; the recommended action is to adopt the Ordinance as presented.
Attachment:
Proposed Ordinance, including Development Agreement
44
ORDINANCE NO. 2026-256
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ALISO VIEJO, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT BETWEEN THE CITY AND
BRANDYWINE HOMES FOR THE DEVELOPMENT OF
PRESIDIO AT PACIFIC PARK, A 58-UNIT RESIDENTIAL
TOWNHOME COMMUNITY LOCATED AT 15 ARGONAUT
(APN: 623-093-10 & 623-093-11)
WHEREAS, the City of Aliso Viejo (“City”) has found that development agreements strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved;
WHEREAS, pursuant to California Government Code section 65864 et seq. and Aliso Viejo Municipal Code (“AVMC”) section 15.82.010, the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth therein;
WHEREAS, on April 15, 2026, Brandywine Homes (“Applicant”) submitted applications for a general plan amendment, zone change, vesting tentative tract map, site development permit, and a development agreement application to demolish an existing office building and construct the construction of a multi-family residential community at 15 Argonaut (“Project”);
WHEREAS, because of the logistics, magnitude of the expenditure and considerable lead time prerequisite to planning and developing the Project, Developer has proposed to enter into a development agreement concerning the Project (“Development Agreement”) to provide assurances that the Project can proceed without disruption caused by a change in the City's planning policies and requirements except as provided in the Development Agreement, which assurance will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Project;
WHEREAS, the City Council has determined that by entering into the Development Agreement: (i) the City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan; and (ii) the Project will provide public benefits, including 58 for-sale homes, three units restricted to very low-income households, pedestrian walkways, landscaped open spaces, and recreational amenities;
45
WHEREAS, it is the intent of the City and Applicant to establish certain conditions and requirements related to review and development of the Project which are or will be the subject of subsequent development applications and land use entitlements for the Project as well as the Development Agreement;
WHEREAS, the City and Applicant have reached mutual agreement and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to the conditions and requirements set forth therein; WHEREAS, the Development Agreement contains, including, without limitation, property owner’s vested right to complete development of the Project with governing land use regulations applicable at the time of approval; defines the scope of the Project; and identifies the public benefit obligations of the Applicant; WHEREAS, the public benefits include, among other things, park in-lieu fees, as authorized by law and the City’s ordinances, to rehabilitate and improve existing open space and recreational facilities in the City, including but not limited to, the Aquatic Center, Iglesia Community Center and Park, and the Ranch (“Facilities”) in order to maintain the City’s high standard of recreation and community services while accommodating a growing population, including future residents of the proposed subdivision; WHEREAS, residents throughout the City regularly use the Facilities due to the variety of programs and services offered. Although the Facilities are located outside of the subdivision, future residents of the subdivision will undoubtedly use and benefit from use of the Facilities as well;
WHEREAS, on March 4, 2026, the City Council held a duly noticed public review to receive and provide initial feedback on concept plans for the Project; WHEREAS, on September 15, 2026, the City gave public notice of the City Council public hearing for consideration of Mitigated Negative Declaration CEQA-2026-01004, General Plan Amendment GPA-2026-01002, Zone Change ZC-2026-00001, Vesting Tentative Tract Map 19489, Site Development Permit SDP-2026-01001 and Development Agreement DA-2026-01002 for the Project by publishing in a newspaper of general circulation; by posting notices at City Hall and the Project site; and by mailing notices to owners of property within 300 feet, to the project applicant, and to local agencies that provide water, sewage, electricity and schools;
WHEREAS, on October 7, 2026, the City Council held a duly noticed public hearing, discussed the parameters of the public benefit contributions of the Development Agreement;
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALISO VIEJO DOES ORDAIN AS FOLLOWS:
46
Section 1: Incorporation of Recitals. The City Council hereby finds and determines that all of the recitals set forth above are true and correct. The above recitals are hereby incorporated as substantive findings of this Ordinance.
Section 2. CEQA. Pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.) and State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (collectively, “CEQA”), the City Council adopted Resolution No. 2026-27, adopting a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Project and determining that the Project, with implementation of the identified mitigation measures, will not have a significant effect on the environment.
Section 3. Findings. Pursuant to AVMC 15.82.010 (Development Agreement and Other Actions), the City Council determined that approving the Development Agreement is in the best interest of the City and for the common benefit of residents and hereby makes the following findings of fact and approves the Development Agreement between the City and the Applicant as set forth in Exhibit “A”, which are attached hereto and incorporated herein by reference.
1. Public Welfare. The Project is consistent with the policies and regulations of the proposed Medium-Density Residential zoning district. The DA includes provisions to ensure compliance with applicable land use regulations, defines the scope of the Project, and identifies the public benefit obligations of the Applicant. The Project is compatible with the existing and recently approved multi-family and single-family communities in terms of layout, architectural style, materials, and open space; the site is served by existing infrastructure, including roads, utilities, and public services sufficient to support residential development; that the environmental assessment determined impacts would be less than significant with mitigation; the Project advances the City’s housing goals by creating new housing opportunities; and future construction will be subject to plan check review and inspection to ensure compliance with all applicable building and safety standards.
A. General Plan Consistency. The development agreement is consistent with the goals, objectives, and policies of the General Plan and any applicable specific plan. The Project is consistent with the goals and policies of the Conservation and Open Space (COS), Housing (H), and Land Use element (LU) listed below in that the Project promotes orderly growth, provides a compatible transition between non-residential and residential uses, supports housing objectives by creating new residential opportunities, and utilizes existing infrastructure in a manner consistent with the community’s long-term vision and planning framework. The Project is also subject to mitigation measures and conditions of approval that address potential impacts related to traffic, noise, air quality, and emergency access. There is no applicable Specific Plan for the Project site.
47
• Policy COS-1.2 Reduce the amount of water used for landscaping and increase use of native and low water plants. Maximize use of native, lowwater plants for landscaping of areas adjacent to sidewalks or other impermeable surfaces.
• Policy COS-4.2 Encourage and maintain high-quality architectural and landscaping designs that enhance or complement the community’s visual character.
• Policy COS-7.5 Ensure that new development provides park land and/or improvements at a fair share ratio, pursuant to the City’s Parkland Ordinance.
• Goal H-1: Encourage a diversity of housing types and provide affordability levels within Aliso Viejo to meet the needs of community residents. • Policy H-1.1 Identify sites appropriate for the development of a variety of housing types and price ranges to meet the needs of all socioeconomic segments of the community through the disbursement of affordable units in projects.
• Policy H-1.2 Encourage through the use of density bonuses and rezoning to allow for residential development, development of affordable housing opportunities throughout the community, as well as development of housing for elderly and low- and moderate-income households near public transportation services.
• Policy H-1.4 Ensure that a portion of future residential development is affordable to low- and very-low-income households by designating certain sites as having the potential to be used for residential uses. • Policy H-3.8 Review existing zoning policies and explore zoning changes to facilitate the development of affordable housing.
• Policy LU-12.2 As a condition upon new development, require payment of park fees and/or dedication and provision of parkland, recreation facilities and/or multi-use trails that improve the public and private recreation system.
Section 4. Minor Modifications. The City Council hereby approves the Development Agreement attached hereto as Exhibit “A” and authorizes the Community Development Director to make any further minor, non-substantive changes and modifications thereto.
Section 5. Effective Date. This Ordinance shall not take effect unless and until the General Plan Amendment GPA-2026-01002, Zone Change ZC-2026-01001, Vesting Tentative Tract Map 19489 and Site Development Permit SDP-2026-01001 and approvals under State Density Bonus Law for the Project are each approved by the City Council and have become effective, and the Development Agreement is executed by both parties.
Section 6. Severability. If any provision of this Ordinance or its application to any person or circumstance is held to be invalid by a court of competent jurisdiction, such invalidity has no effect on the other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this extent, the 48
provisions of this Ordinance are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
Section 7. City Clerk’s Certification. The City Clerk shall certify to the adoption of this Ordinance and cause a summary thereof to be published five days prior to the date of adoption of this Ordinance, and, within 15 days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk.
Section 8. The Mayor, City Manager, and City Clerk, or their designees, are authorized to take such actions as may be necessary to effect the execution, recordation, and enforcement of this Ordinance and the Development Agreement.
PASSED, APPROVED AND ADOPTED this 21st day of October, 2026. __________________________
Max Duncan
Mayor
APPROVED AS TO FORM:
___________________________
Scott C. Smith,
City Attorney
ATTEST:
___________________________
Maria Kendig,
City Clerk
49
Exhibit “A”
Development Agreement
50 60367.00001\45389844.2
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RECORDED AT REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: City Manager
Fee Exempt - Gov't Code §6103
(Space above for Recorder's Use)
DEVELOPMENT AGREEMENT
between
THE CITY OF ALISO VIEJO,
a California municipal corporation
and
BRANDYWINE ACQUISITION GROUP, LLC.
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2 THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into by and between THE CITY OF ALISO VIEJO, a California municipal corporation (“City”), and BRANDYWINE ACQUISITION GROUP, LLC. (“Owner”) with reference to the following facts:
RECITALS.
A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the “Development Agreement Statute,” Sections 65864 et seq., of the Government Code. City, a general law city, is authorized by the Development Agreement Statute to enter into development agreements with persons and entities having legal or equitable interests in real property for the purpose of establishing predictability for both City and the property owner in the development process. Owner has requested that City enter into a development agreement for the development of the Property, as defined below. City enters into this Agreement pursuant to the provisions of the California Government Code, the City’s General Plan, the City Municipal Code, and applicable City policies.
B. Owner has a legal or equitable interest in that certain real property consisting of approximately 4.4 acres of land located in the City of Aliso Viejo, County of Orange, State of California, more particularly described in Exhibit “A” (the “Property”).
Owner desires to develop the Property for residential uses of 58 for-sale residential Units, including 55 for sale market-rate units and three (3) affordable for-sale units, as further described herein.
C. This Agreement is intended to ensure that Owner has provided funding sufficient to provide the adequate and appropriate public recreational facilities and services required by the development of the Property.
D. This Agreement also assures that the development will assist the City in meeting its goals for the provisions of affordable housing by contributing to the City’s affordable housing stock.
E. This Agreement further assures that development of the Property may occur in accordance with City’s General Plan, as amended by the General Plan Amendment and Zone Change. The development of the Property pursuant to the Existing Land Use Regulations, this Agreement, the Subsequent Land Use Regulations to which Owner has consented in writing, and Subsequent Development Approvals (as each of those terms and phrases is defined within this Agreement) shall be referred to as the “Development Plan.”
F. This Agreement constitutes a current exercise of City’s police powers to provide predictability to Owner in the development approval process by vesting the permitted use, density, intensity of use, and timing and phasing of development consistent with the Development Plan in exchange for Owner’s commitment to provide significant public benefits to City (the “Public Benefits”) as set forth in Section 9. 52 60367.00001\45389844.2
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3 G. The provision by Owner of the Public Benefits allows the City to realize significant economic, recreational, park, open space, educational, social, and public facilities benefits. The Public Benefits will advance the interests and meet the needs of Aliso Viejo’s residents and visitors.
H. In return for Owner’s participation and commitment to these significant contributions of private resources for public purposes, City is willing to exercise its authority to enter into this Agreement and to make a commitment of predictability for the development process for the Property. Absent City’s willingness to make such a commitment, Owner would be unwilling to enter into this Agreement or make the significant investment of resources identified in this Agreement.
AGREEMENT
City and Owner agree as follows:
1. INTEREST OF OWNER. Owner represents that it has a legal or equitable interest in the Property and is authorized to enter into this Agreement.
2. PUBLIC HEARINGS.
2.1 On October 7, 2026, after providing notice as required by law, the City Council held a public hearing on this Agreement and made the findings set forth in Section 3.
3. CITY COUNCIL FINDINGS. The City Council finds that:
3.1 Subject to the approval of the General Plan Amendment and Zone Change becoming effective on or before the Effective Date, this Agreement is consistent with City’s General Plan.
3.2 This Agreement ensures a desirable and functional community environment, provides effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, enhances effective utilization of resources within the City, provides assurances to the developer in an effort to control the cost of housing and development to the consumer, and provides other significant benefits to the City and its residents.
3.3 This Agreement provides public benefits beyond those which are necessary to mitigate the development of the Project.
3.4 This Agreement strengthens the public planning process, encourages private participation in comprehensive planning, particularly with respect to the implementation of the City’s General Plan, and reduces the economic costs of development and government.
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4 3.5 The best interests of the citizens of the City and the public health, safety, and welfare will be served by entering into this Agreement.
4. CONTINUING OBLIGATIONS. This Agreement binds the City now and in the future. By approving this Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by the City staff and the City Council and have been found to be fair, just, and reasonable. City has concluded that the Project will serve the best interests of its citizens and that the public health, safety, and welfare will be best served by entering into this Agreement.
5. DEFINITIONS. In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings:
5.1 “Agreement” shall mean this Development Agreement between the City and Owner. The term “Agreement” shall include any amendment properly approved and executed pursuant to Section 7.5.
5.2 “Approval Date” means the date on which the City Council conducted the second reading of the ordinance adopting this Agreement. That date is October 21, 2026.
5.3 “City” shall mean the City of Aliso Viejo, a California municipal corporation.
5.4 “City Council” shall mean the governing body of the City.
5.5 “City Municipal Code” shall mean the Aliso Viejo Municipal Code. However, changes to the Aliso Viejo Municipal Code occurring between the Approval Date and the Effective Date shall not be considered part of the City Municipal Code for purposes of this Agreement without Owner’s prior written consent.
5.6 “Day” refers to a calendar day unless specifically stated as a “business day.”
5.7 “Default” shall refer to a Major Default or Minor Default as defined herein.
5.8 “Development” shall mean the improvement of the Property for the purposes of completing the structures, improvements, and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and private facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; the installation of landscaping; and other improvements.
5.9 “Development Approvals” shall mean all permits and other entitlements approved or issued by the City for the use of, construction upon, and/or development of the Property. For the purposes of this Agreement, 54 60367.00001\45389844.2
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5 Development Approvals shall be deemed to include, but are not limited to, the following actions, including revisions, addenda, amendments, and modifications to these actions:
a. this Agreement;
b. amendments to this Agreement;
c. amendments to the General Plan;
d. tentative and final subdivision and tract maps;
e. site development permit;
f. zoning;
g. grading and building permits;
h. certificates of compliance;
i. street, drainage, utility, stormwater, and landscape permits; j. occupancy permits; and
k. environmental review documents for the Project.
5.10 “Development Impact Fees” shall mean all fees established and imposed upon the Project by the City and this Agreement.
5.11 “Development Plan” means the Existing Land Use Regulations, the Development Approvals, this Agreement, the Subsequent Land Use Regulations to which Owner has consented in writing, and Subsequent Development Approvals.
5.12 “Effective Date” shall mean the later of: (i) date the ordinance adopting this Agreement becomes effective; or (ii) expiration of the period provided by applicable law, including but not limited to Government Code Section 65009, for challenging the General Plan Amendment and/or the Zone Change.
5.13 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date, including the General Plan Amendment and Zone Change (including the number of Units approved for the Project by the General Plan Amendment). However, changes to Land Use and Zoning Regulations occurring between the Approval Date and the Effective Date shall not be considered part of the Existing Land Use or Zoning Regulations without Owner’s prior written consent. Owner has consented to the General 55 60367.00001\45389844.2
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6 Plan Amendment and Zone Change, which shall be considered part of the Existing Land Use and Zoning Regulations.
5.14 “Final Map” refers to the final map which may be filed with respect to any Tentative Map, including the First Tentative Map, as set forth in Section 66456 et seq. of the Subdivision Map Act.
5.15 “First Tentative Map” shall mean the first Tentative Map for the Project which is approved by the City prior to or concurrent with the Effective Date of this Agreement. Owner may submit more than one Tentative Map to be considered concurrently as the First Tentative Map.
5.16 “First Tentative Map Submittal Package” shall mean the package of materials to be submitted with the Owner’s application for the First Tentative Map, which shall include the site development permit for the Project.
5.17 “General Plan” shall mean the general plan of the City.
5.18 “General Plan Amendment” shall refer to the amendment of the City’s General Plan on October 7, 2026, for the Property. A copy of the General Plan Amendment is attached as Exhibit “B”.
5.19 “Implementing Agreement” refers to any agreement entered into by Owner and the City for the implementation of obligations established in this Agreement.
5.20 “Land Use Regulations” shall mean all ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement, construction, and initial occupancy standards and specifications applicable to the Project. Land Use Regulations do not include any City ordinance, resolution, code, rule, regulation or official policy governing:
• The conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City;
• Taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g., excise tax) or to directly finance the acquisition or dedication of open space or any other public improvement in respect of which the Owner is paying any fee 56 60367.00001\45389844.2
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7 (directly or through a Financing District) or providing any improvement pursuant to this Agreement;
• The control and abatement of nuisances.
5.21 “Major Default” refers to the material and substantial failure by (1) Owner to timely meet Owner’s Public Benefit obligations, or (2) City’s failure to issue Subsequent Development Approvals in accordance with its obligations under this Agreement, or (3) either Party to provide the agreed upon cooperation needed to implement the Public Benefits and/or the development of the Property pursuant to the Development Plan, including but not limited to a failure to comply with the terms of any Implementing Agreement. This definition is not intended to expand or limit the legal definition of “materiality,” but only to establish the agreement of the Parties as to the nature of a default which could lead to an early termination of this Agreement.
5.22 “Minor Default” means a failure by Owner or City to comply with the terms and conditions of this Agreement which is not a “Major Default” as defined herein.
5.23 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device, a lender, and their successors and assigns.
5.24 “Owner” refers to Brandywine Acquisition Group, LLC., and Owner’s successors and assigns as set forth in Section 14.14.
5.25 “Owner’s Vested Right” refers to Owner’s guaranteed right to develop the Property as set forth in this Agreement, with particular reference to Section
8. 5.26 “Paragraph” means a lettered or numbered paragraph of an Exhibit to this Agreement, unless specifically stated to refer to another document or matter. (Note below that “Section” means a lettered or numbered section of the main body of this Agreement.) A reference to a Paragraph includes all subparagraphs of that Paragraph.
5.27 The “Parties” means the City and Owner. A “Party” refers to either the City or the Owner.
5.28 “Project” means the development of the Property as set forth in the Development Plan.
5.29 “Property” means the real property described in Exhibit “A”.
5.30 “Public Benefits” refers to those benefits provided to the City and the community by Owner pursuant to Section 9 and Exhibit “C” below. 57 60367.00001\45389844.2
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8 5.31 “Reservation of Authority” means the rights and authority specifically reserved to City which limits the assurances and rights provided to the Owner under this Agreement. The Reservation of Authority is described in Section 8.6.
5.32 “Section” refers to a numbered section of this Agreement, unless specifically stated to refer to another document or matter.
5.33 “Subsequent Development Approvals” means all Development Approvals and permits approved, granted, or issued after the Effective Date for the Project which are required or permitted by the Existing Land Use Regulations, the Subsequent Land Use Regulations to which Owner has consented in writing, and this Agreement. Subsequent Development Approvals include, without limitation, all development review approvals required under the Subdivision Map Act, the City’s subdivision ordinance and/or other provisions of the City Municipal Code, site development permits, excavation, grading, building, construction, encroachment or street improvement permits, occupancy certificates, utility connection authorizations, drainage, landscape, or other permits or approvals necessary for the grading, construction, marketing, use and occupancy of the Project.
5.34 “Subsequent Land Use Regulations” means those Land Use Regulations which are both adopted and effective after the Approval Date and which are not included within the definition of Existing Land Use Regulations. “Subsequent Land Use Regulations” include any Land Use Regulations adopted by moratorium by initiative, City action, or otherwise
5.35 “Tentative Map” shall mean any tentative map, as defined in the Subdivision Map Act and the City Municipal Code, for the Project, including the First Tentative Map. With the approval of any Tentative Map, the City shall identify the conditions that shall be satisfied to process the map.
5.36 “Term” means the term of this Agreement as set forth in Section 7.2 of this Agreement.
5.37 “Unit” means a residential dwelling unit within the Project. This definition is provided solely for the purposes of determining the uses which may be built as a part of the Project and, if applicable, for calculating the City Fee described in Exhibit “C”, and is not intended to allow for conversion of nonresidential uses to residential uses.
5.38 “Very Low Income Household” means persons and families whose income does not exceed fifty percent (50%) of the then-current area median income of the County of Orange adjusted for family size by the State Department of Housing and Community Development in accordance with adjustment factors adopted and amended from time to time by the United States 58 60367.00001\45389844.2
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9 Department of Housing and Urban Development pursuant to Section 8 of the United States Housing Act of 1937, as amended, and California Health and Safety Code Section 50105, as it may be amended from time-to-time.
In no event, however, shall the maximum annual income for a Very Low Income Household be, for purposes of this Agreement, less than fifty percent (50%) of the then-current area median income of the County of Orange.
6. EXHIBITS. All exhibits attached to this Agreement are incorporated as a part of this Agreement. Those exhibits are:
Exhibit Description
“A” Legal Description of the Property
“B” General Plan Amendment
“C” Public Benefits
“D” Density Bonus Housing Agreement
“E” Assignment and Assumption Agreement
7. GENERAL PROVISIONS.
7.1 Binding Effect of Agreement. This Agreement shall be recorded against the Property and shall run with the land. The Development shall be carried out only in accordance with the terms of this Agreement. Until released or terminated pursuant to the provisions of this Agreement or until Owner has fully performed its obligations arising out of this Agreement, no portion of the Property shall be released from this Agreement.
7.2 Term of Agreement. The Term shall commence on the Effective Date. The Term shall continue for a period of ten (10) years from the Effective Date, subject to the following:
7.2.1 Extensions of Term. The Term shall be extended for periods equal to the time during which:
7.2.1.1 Litigation is pending which challenges any matter, including compliance with CEQA or any other local,
state, or federal law, related in any way to the approval or implementation of all or any part of the Development Plan. Any such extension shall be equal to the time
between the filing of litigation, on the one hand, and the entry of final judgment or dismissal, on the other. All such extensions shall be cumulative.
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10 7.2.1.2 Any application by Owner for state or federal regulatory permits and/or approvals required for the Project has
been pending more than one year after its submittal,
beginning on the 366th day following its submittal for
approval.
7.2.1.3 Any other delay occurs which is beyond the control of the Parties, as described in Section 14.10.
7.2.2 During the Term, certain portions of the Property may be released from this Agreement as provided elsewhere in this Agreement.
7.2.3 As provided in Section 7.3 and elsewhere within this Agreement, the Term may end earlier than the end of the Term specified in this Section.
7.3 Termination. This Agreement shall be deemed terminated and of no further effect upon the earlier occurrence of any of the following events:
7.3.1 Expiration of the Term as set forth in Section 7.2;
7.3.2 Entry of a final judgment setting aside, voiding, or annulling the adoption of the ordinance approving this Agreement;
7.3.3 The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement;
7.3.4 Completion of the Project in accordance with the terms of this Agreement, including issuance of all required occupancy permits and acceptance, as required by state law, by City, or the applicable public agency, of all required dedications and the satisfaction of all of Owner’s obligations under this Agreement; or
7.3.5 As may be provided by other specific provisions of this Agreement.
7.4 Effect of Termination. Subject to Section 8.9, upon any termination of this Agreement, the only rights or obligations under this Agreement which either Party shall have are:
7.4.1 The completion of obligations which were to have been performed prior to termination, other than those which are separately addressed by Section 12;
7.4.2 The performance and cure rights set forth in Section 12; and
7.4.3 Those obligations that are specifically set forth as surviving this Agreement, such as those described in Section 9 and in Sections
11.1 through 11.7 and Section 14.15.
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11 7.5 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or canceled only by the written consent of both City and Owner in the same manner as its adoption, as set forth in California Government Code Section 65868. Any amendment or cancellation shall be in a form suitable for recording in the Official Records of Orange County, California. An amendment or other modification of this Agreement will continue to relate back to the Effective Date of this Agreement (as opposed to the effective date of the amendment or modification), unless the amendment or modification expressly states otherwise.
7.6 Release of Obligations With Respect to Individual Unit Upon Certification of Occupancy. Notwithstanding any other provision of this Agreement:
7.6.1 When any individual unit has been finally subdivided and sold, leased, or made available for lease to a member of the public or any other ultimate user, and a certificate of occupancy has been obtained for the building(s) on the lot, that unit and its owner shall have no further obligations under and shall be released from this Agreement.
7.6.2 Upon the conveyance of any lot, parcel, or other property, whether residential, commercial, or open space, to a homeowners’ association, property owners’ association, or public or quasi-public entity, that lot, parcel, or property and its owner shall have no further obligations under and shall be released from this Agreement, provided that this paragraph shall not be deemed to release any transferee (including a good faith purchaser) from obligations to pay assessments imposed in connection with a Financing District.
No formal action by the City is required to effect this release, but, upon Owner’s request, City shall sign an estoppel certificate or other document to evidence the release.
7.7 Minor Changes. The provisions of this Agreement require a close degree of cooperation between the Parties and “Minor Changes” to the Project may be required from time to time to accommodate design changes, engineering changes, and other refinements related to the details of the Parties’ performance. “Minor Changes” shall mean changes to the Project that are otherwise consistent with the Development Plan, and which do not result in a change in the type of use, an increase in density or intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety regulations in effect on the Effective Date.
Accordingly, the Parties may mutually consent to adopting “Minor Changes” through their signing of an “Operating Memorandum” reflecting the Minor 61 60367.00001\45389844.2
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12 Changes. Neither the Minor Changes nor any Operating Memorandum shall require public notice or hearing. The City Attorney and City Manager shall be authorized to determine whether proposed modifications and refinements are “Minor Changes” subject to this Section 7.7 or more significant changes requiring amendment of this Agreement. The City Manager may execute any Operating Memorandum without City Council action.
7.8 Term of Map(s) and Other Project Approvals.
7.8.1 Subdivision Maps. Pursuant to Government Code Section 66452.6, the term of all subdivision or tract maps that are approved for all or any portion of the Property shall be extended to a date coincident with the Term and, where not prohibited by State law, with any extension of the Term.
7.8.2 Site Development Permits. Site Development Permits for the Project shall have terms that coincide with the term of the subdivision or tract map for the portion of the Property to which a particular Site Development Permit pertains.
7.8.3 Other Development Approvals. Pursuant to Government Code Section 65863.9, any and all other Development Approvals for any portion of the Project shall automatically be extended for a term ending concurrently with the applicable tentative maps for the Project. Pursuant to Section 7.8.1, those terms shall be the same as the Term of this Agreement.
7.8.4 Decisions of Community Development Director. Any decision of the Community Development Director with respect to Subsequent Development Approvals may be appealed to the City’s City Council pursuant to Section 15.70.080 of the Aliso Viejo Municipal Code.
7.9 Relationship of City and Owner. The contractual relationship between City and Owner arising out of this Agreement is one of independent contractor and not agency. This Agreement does not create any third-party beneficiary rights.
7.10 Notices. All notices, demands, and correspondence required or permitted by this Agreement shall be in writing and delivered in person, overnight delivery (e.g. Fedex) or mailed by first class and certified mail, return receipt requested, postage prepaid, addressed as follows:
If to City, to:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656
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13 Attn: City Manager
With a copy to:
Scott C. Smith
18101 Von Karman Avenue
Suite 1000
Irvine, CA 92612
If to Owner, to:
Brandywine Acquisition Group, LLC.
2355 Main Street, Suite 220
Irvine, CA 92614
With a copy to:
Cox, Castle & Nicholson LLP
2029 Century Park East, Suite 2100
Los Angeles, CA 90067
Attn: Andrew K. Fogg, Esq.
City or Owner may change its address by giving notice in writing to each of the other names and addresses listed above. Thereafter, notices, demands, and correspondence shall be addressed and transmitted to the new address. Notice shall be deemed given upon personal delivery or, notices shall be deemed given upon receipt as evidenced by the customary receipt provided by the delivery service.
7.11 Waiver of Right to Protest. Execution of this Agreement is made by Owner without protest. Owner knowingly and willingly waives any rights it may have under Government Code Section 66020 or any other provision of law to protest the imposition of any fees, dedications, reservations, or other exactions imposed on the Project as authorized by this Agreement.
8. DEVELOPMENT OF THE PROPERTY.
8.1 Owner’s Vested Right. Owner shall have the vested right to complete Development of the Property in accordance with the Development Plan as provided in this Agreement (“Owner’s Vested Right”). To enable Owner to complete the Project, Owner’s Vested Right shall include, but not be limited to, the rights to (1) develop 58 for-sale residential Units, including fifty five (55) for-sale market-rate units and three (3) affordable for-sale units, all in accordance with the Development Plan, (2) the timely issuance by the City of all Subsequent Development Approvals, and (3) the timely taking by the City of such other actions that are (i) requested by Owner, and (ii) consistent with the terms of this Agreement, including, but not limited, to the vested rights afforded pursuant to Section 8.9 of this Agreement. 63 60367.00001\45389844.2
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14 Owner’s Vested Right shall be subject to the Reservation of Authority set forth in Section 8.6 and all provisions of this Agreement and may not be modified or terminated except as expressly provided by this Agreement.
8.2 Governing Land Use Regulations. The Land Use Regulations applicable to the Project and the Property shall be those contained in the Development Plan. An amendment or other modification of this Agreement will not change these applicable Land Use Regulations unless the amendment or modification expressly provides otherwise. Subsequent Land Use Regulations shall not apply to the Property except as authorized in Section
8.6 of this Agreement, unless the Owner and the City mutually agree in writing that the Project will be subject to one or more Subsequent Land Use Regulations. To the extent of any inconsistency between this Agreement and any provision of the City’s subdivision ordinance (comprising Title 14 of the Aliso Viejo Municipal Code), this Agreement shall control.
Nothing contained in this Section shall be deemed to authorize City to withhold any building permit, approval, and/or certificate of occupancy based on Owner’s failure to comply with any Land Use Regulation that is not applicable to the Project because of this Agreement.
8.3 Permitted Uses. Except as otherwise provided within this Agreement, the permitted uses on the Property shall be as provided in the Development Plan.
8.4 Density and Intensity; Requirement for Reservation and Dedication of Land.
Except as otherwise provided within this Agreement, the density and intensity of use for all Development on the Property, and the requirements for reservation and dedication of land, shall be as provided in the Development Plan.
8.5 Unit Counts to be Determined with First Tentative Map Approval. The City Council will, concurrently with the approval of the First Tentative Map, determine the specific number of Units which may be built as part of the Project in accordance with Owner’s Vested Right set forth in Section 8.1 of this Agreement. In order for the City to make this determination, Owner shall submit the First Tentative Map Submittal Package, concurrently with its application for the First Tentative Map. Under no circumstances may the City reduce the number of units permitted under the Development Plan in conjunction with the First Tentative Map Approval without consent of Owner.
8.6 Reservation of Authority. The following Land Use Regulations or Subsequent Land Use Regulations shall apply to the Property and the Project:
8.6.1 Processing fees and charges imposed by the City to cover the City’s estimated or actual costs of reviewing and processing 64 60367.00001\45389844.2
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15 applications for the Project, providing inspections, conducting annual reviews, providing environmental analysis, or for monitoring compliance with this Agreement or any Development Approvals granted or issued, provided such fees and charges are in force and effect on a general basis on the date of filing such applications with the City. This Section shall not be construed to limit the authority of City to charge its then-current, normal and customary application, processing, and permit fees for Subsequent Development
Approvals, building permits and other similar permits, which fees are designed to reimburse City’s expenses attributable to such application, processing, and permitting and are in force and effect on a City-wide basis at such time as the Subsequent Development Approvals and permits are granted by City, notwithstanding the fact that such fees may have been increased by City subsequent to the Effective Date;
8.6.2 Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure;
8.6.3 The following, provided that (i) they are uniformly applied to all development projects within the City and (ii) are not applied retroactively to any Development Approval issued before their adoption or amendment:
8.6.3.1 Uniform codes governing engineering and construction standards and specifications adopted by the City
pursuant to state law. Such codes include, without
limitation, the City’s Municipal Code, adopted version
of the California Building Code, California Plumbing
Code, California Mechanical Code, California Electrical Code, California Energy Code, California Green
Building Standards Code, California Residential Code,
and California Fire Code;
8.6.3.2 Local amendments to those uniform codes which are adopted by the City pursuant to state law, provided
they pertain exclusively to the preservation of life and safety; and
8.6.3.3 The City’s standards and procedures regarding the granting of encroachment permits and the conveyance
of rights and interests which provide for the use of or the entry upon public property.
8.6.4 Regulations which may be in conflict with this Agreement, but which are objectively required (and there are no available 65 60367.00001\45389844.2
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16 reasonable alternatives) to protect the public health and safety in the event of a sudden, unexpected occurrence involving a clear and imminent danger, and demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services within the immediate community. Such regulations must be a valid exercise of the City’s police power and must be applied and construed so as to provide Owner, to the maximum extent possible, with the rights and assurances provided in this Agreement. To apply to the Property, such regulations must be adopted after a public hearing and must be based upon findings of necessity established by a preponderance of the evidence. Any regulations, including moratoria, enacted by City and imposed on the Property to protect the public health and safety in the circumstances described above shall toll the Term and any time periods for performance by Owner and City set forth in this Agreement;
8.6.5 Owner shall be issued building permits for the Project after permit applications are reviewed and approved by City in the City’s customary fashion for such review and approval; and
8.6.6 The exercise of the power of eminent domain.
8.7 County-Mandated Impact Fees. Nothing in this Agreement shall relieve Owner of the responsibility to pay any impact fees established by the County of Orange or associated with any County program and for which Owner is legally responsible. Owner shall pay any such fees the City is required to collect or otherwise collects on behalf of the County of Orange.
Owner understands and acknowledges that Exhibit “C” reflects only the City’s estimate of fees paid and fees owed, and may not accurately reflect Owner’s County fee obligations. The omission of any fee from Exhibit “C” which is due to the County or any other public agency shall not invalidate or otherwise affect Owner’s obligation to pay that fee.
8.8 Adequacy of Required Infrastructure. The City acknowledges and agrees that there will be sufficient capacity to accommodate the Project in the infrastructure and services owned, operated, outsourced, controlled, and/or provided by the City, including, without limitation, traffic circulation, storm drainage, trash collection, and flood control. Where City renders or outsources such services or owns such infrastructure, City shall serve the Project and there shall be no restrictions placed upon Owner concerning hookups or service for the Project, except for reasons beyond City’s control.
Notwithstanding the foregoing, City does not warrant the adequacy of, and City shall not be responsible or liable for any infrastructure or services that are not owned, operated, outsourced, controlled, and/or provided by City. 66 60367.00001\45389844.2
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17 8.9 Vested Rights Upon Termination. Termination of the Agreement shall not invalidate any Land Use Regulations or terminate any Subsequent Development Approvals obtained prior to the date of termination. Upon any termination of this Agreement, Owner’s vested rights, if any, shall be determined by this Agreement to the extent development has occurred hereunder, and as to the remainder of the Project, by state and federal statutes and case law and then current factual state of the Development.
Subject to that determination of rights and all other applicable law, Owner’s right to continue development of the Project pursuant to some or all of the Development Plan shall be subject to the ordinary exercise of the City’s police power, including the adoption of a general plan amendment, zoning change, or other Land Use Regulations applicable to the Property. Owner acknowledges that following termination or expiration of this Agreement, except as to any development that has vested, City may amend the general plan designation of the Property and/or the zoning designation applicable to the Property.
8.10 Waiver of Density Bonus. While this Agreement is in effect, Owner waives any right Owner may have to a density bonus under Government Code Sections 65915 through 65917.5 or the Aliso Viejo Municipal Code.
Densities vested hereunder include all densities available as density bonuses under the Aliso Viejo Municipal Code and Government Code Sections 65915 through 65917.5; Owner shall not be entitled to further density bonuses. Nothing in this section limits Owner’s right to seek incentives, concessions, and/or waivers under the state Density Bonus Law, as applicable, all of which are expressly reserved.
8.11 Staffing and Expedited Processing. City shall employ all lawful actions capable of being undertaken by City to (i) promptly receive and, when complete, accept all applications for Subsequent Development Approvals and related environmental analysis, if any (collectively, “Applications”), and (ii) expeditiously process and take action upon the Applications in accordance with applicable law.
8.12 Changes in Federal and State Law. The Property may be subject to subsequently enacted state or federal laws or regulations that preempt local regulations or mandate the adoption of local regulations that conflict with the Development Plan. Upon discovery of such a subsequently enacted federal or state law, City or Owner shall provide the other Party with written notice, a copy of the state or federal law or regulation, and a written explanation of the legal or regulatory conflict created. Within ten (10) days thereafter, City and Owner shall meet and confer in good faith in a reasonable attempt to modify this Agreement, as necessary, to comply with such federal or state law or regulation. In such negotiations, City and Owner agree to preserve the terms of this Agreement and the rights of Owner and City as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Owner in resolving the 67 60367.00001\45389844.2
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18 conflict in a manner which minimizes any financial impact of the conflict upon Owner or City. City also agrees to process, in the same expedited manner as set forth for Applications in Section 8.11, Owner’s proposed changes to the Development Plan as needed to comply with such federal or state law, and to process those changes in accordance with City procedures. Any delays caused by such changes in state or federal law shall toll the term of this Agreement and the time periods for performance by Owner and City set forth in this Agreement.
8.13 Cooperation in Securing Other Governmental Approvals and Permits. City agrees to make its staff available, at Owner’s cost, to assist Owner in securing permits and approvals required by other governmental agencies to assure Owner’s ability to (i) implement the Development Plan and (ii) perform its obligations under this Agreement in a timely manner. City does not warrant or represent that any other governmental permits or approvals will be granted.
8.14 Compliance with CEQA. Where the California Environmental Quality Act requires that an environmental analysis be performed in connection with a future discretionary approval granted by the City for the Project, the City, consistent with Section 8.13, shall provide the cooperation needed to expeditiously complete those actions.
8.15 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the specific intent of the Parties to provide for the timing of the Project in this Agreement. To do so, the Parties acknowledge and provide that Owner shall have the right, but not the obligation, to complete the Project in such order, at such rate, at such times, and in as many development phases and sub-phases as Owner deems appropriate in its sole subjective business judgment but subject to Section
9.4 of this Agreement.
8.16 Conditions, Covenants and Restrictions. Owner shall have the ability to reserve and record such covenants, conditions, and restrictions (“CC&Rs”) against the Property as Owner deems appropriate, in its sole and absolute discretion. Such CC&Rs may not conflict with this Agreement or the General Plan. Before recording any CC&Rs, Owner shall provide a copy of the CC&Rs to the City for review and approval by the City Attorney. The City Attorney’s review shall be limited to determining if the CC&Rs substantially comply with this Agreement. Within forty-five (45) days after receiving a copy of the proposed CC&Rs from Owner, the City Attorney shall provide Owner with either (i) a statement that the CC&Rs comply with this Agreement (“CC&R Approval”) or (ii) written comments identifying each aspect of the CC&Rs which the City Attorney believes not to be in 68 60367.00001\45389844.2
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19 compliance with this Agreement (a “Statement of Non-Compliance”). If the City Attorney fails to provide Owner with either CC&R Approval or a Statement of Non-Compliance within forty-five (45) days following a written request by Owner, City shall be deemed to have approved the CC&Rs and Owner may record the CC&Rs against the Property. If the City Attorney provides a Statement of Non-Compliance, Owner shall have thirty (30) days in which to respond to the Statement of Non-Compliance. Upon submittal of Owner’s response, the procedure described above for the initial submittal and City Attorney review of proposed CC&Rs shall again be followed. This procedure shall be followed until Owner either (1) receives CC&R Approval, (2) submits the compliance issues to binding arbitration pursuant to the rules of the American Arbitration Association, (3) files an action for declaratory relief in Orange County Superior Court seeking a judicial determination of the compliance of the proposed CC&Rs, or (4) agreement is otherwise reached between the Parties allowing for the recording of the CC&Rs. The CC&Rs may run with the land and bind Owner’s successors and assigns. Except as provided above, any dispute between the Parties regarding the City’s approval or rejection of the CC&Rs shall be subject to immediate and binding arbitration pursuant to the rules of the American Arbitration Association.
9. PUBLIC BENEFITS.
9.1 Intent. This Agreement is entered into by the City in consideration of, and in exchange for, Owner’s agreement to contribute to the development and rehabilitation of public recreational facilities, affordable housing, and other services.
9.2 Public Benefits. Owner’s development and financial obligations related to public benefits are set forth in this Section 9 and Exhibit “C”. This Section 9 and Exhibit “C” shall survive the termination, cancellation, or expiration of this Agreement.
9.3 Independent Nature of Obligations. Owner’s Public Benefit obligations are independent of the obligations of any other landowner or any other property which the City intends to participate in providing some or all of the Public Benefits. Provided that Owner satisfies its Public Benefit obligations and is not in Material Default, Owner’s Vested Right to complete the full development of the Project shall not be limited, diminished, or otherwise adversely affected by the failure of any other landowner or property to participate in providing the Public Benefits as anticipated by the City.
Similarly, the City’s obligations to Owner and the Property are independent of the City’s obligations to any other property or landowner. Owner acknowledges that the provisions of this paragraph shall not apply to any fee the amount of which is not controlled by the City, including but not limited to fees paid to the Capistrano Unified School District, the County of Orange, and/or any other government agency.
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20 9.4 Affordable Housing Obligations. Owner recognizes the policy stated in the Housing Element of the Aliso Viejo General Plan to encourage the provision of affordable housing in new development. Owner agrees to satisfy its obligation to provide for affordable housing by constructing three (3) units restricted to Very Low Income Households. All affordable housing Units must be developed on-site at the Property. The affordable Units shall be constructed concurrently with the market rate Units in the Project.
Owner shall enter into a Density Bonus Housing Agreement with the City, in the form attached hereto as Exhibit “D”, which shall set forth the terms, conditions, and restrictions governing the development, affordability, and occupancy of the affordable housing Units. Execution of the Density Bonus Housing Agreement shall be completed prior to the issuance of any building permit for the Project. The City shall have no obligation to issue any building permit for the Project until the fully executed Density Bonus Housing Agreement has been submitted to and accepted by the City. Any delay in the issuance of building permits resulting from the Owner’s failure to timely submit the executed agreement shall be solely the responsibility of the Owner.
10. ANNUAL REVIEW.
10.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, at least once during every twelve (12) month period of the Term, City shall review the good faith compliance of Owner with the terms of this Agreement (“Annual Review”).
10.2 Standards for Annual Review. During the Annual Review, Owner shall be required to demonstrate good faith compliance with the terms of this Agreement. “Good faith compliance” shall be established if Owner is in compliance with every term and condition of this Agreement. If the City Council or its designee finds and determines, based on substantial evidence, that Owner is not in good faith compliance, then City may proceed in accordance with Section 12 pertaining to the potential Default of Owner and the opportunities for cure. Owner shall pay a reasonable fee to cover the costs incurred by City (i.e., staff time and necessary consultant costs) in connection with the Annual Review.
10.3 Procedures for Annual Review. The Annual Review shall be conducted by the City Council or its designee. Owner shall be given a minimum of thirty (30) days’ notice of any date scheduled for an Annual Review. Owner shall not be limited in the information it presents to the City Council for the Annual Review and may, if needed, provide information to the City Council in the first instance at the City Council hearing on the Annual Review. Should the City Council designate a party other than itself to conduct the Annual Review, these same notice and procedural requirements shall apply to the conduct by the designee of the Annual Review.
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21 11. THIRD PARTY LITIGATION.
11.1 General Plan Litigation. City has determined that this Agreement is consistent with its General Plan. Owner has reviewed the General Plan and concurs with City’s determination. Neither Owner nor City shall have any liability under this Agreement or otherwise for any failure of City to perform under this Agreement, or for the inability of Owner to develop the Property as contemplated by the Development Plan or this Agreement, if such failure or inability is the result of a judicial determination that part or all of the General Plan is invalid, inadequate, or not in compliance with law.
11.2 Third Party Litigation Concerning Agreement. Owner shall, at Owner’s expense (including attorneys’ fees), defend, indemnify, and hold City, its officials, officers, employees, agents, and independent contractors, harmless from any third-party claim, action or proceeding against City, its officials, officers, employees agents, or contractors to attack, set aside, void, or annul the approval of this Agreement. City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense at Owner’s cost. Owner reserves the right to withdraw its Project application or request that City repeal or rescind Project approvals.
If Owner requests such application withdrawal or Project repeal or rescission, Owner shall also pay all costs related to processing those requests and bringing them to City Council for hearing. Notwithstanding the foregoing, Owner shall continue to pay for any and all litigation costs and fees until such litigation has been resolved by a Court (i.e., obtaining a dismissal of the City from the case). For the avoidance of doubt, any damages or judgment shall also solely be paid for by Owner. To the extent that Owner withdraws its Project application or requests that the City rescind or repeal Project approvals, City reserves the right to reduce or abandon its defense of any litigation.
11.3 Indemnity. In addition to the provisions of Section 11.2, Owner shall indemnify and hold City, its officials, officers, agents, employees and independent contractors free and harmless from liability whatsoever or claims based or alleged upon any act or omission of Owner, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury or death (Owner’s employees included) or any other element of damage of any kind or nature, relating to or arising from development of the Project, except for claims for damages arising through active negligence or willful misconduct of City, its officials, officers, agents, employees and independent contractors. Owner shall defend, at Owner’s expense, including attorneys’ fees, City, its officials, officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions of Owner, its officers, agents, employees, subcontractors, and independent contractors, in connection with the development of the Project, this Agreement, or the Development 71 60367.00001\45389844.2
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22 Approvals. For the avoidance of doubt, any damages or judgments shall also solely be paid for by Owner.
11.4 Environmental Contamination. Owner shall indemnify and hold City, its officers, agents, employees, and contractors free and harmless from any liability, based or alleged, upon any act or omission of Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns, and independent contractors, resulting in any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under, or about the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including attorneys’ fees, City, its officials, officers, agents and employees in any action based or asserted upon any such alleged act or omission. Notwithstanding anything to the contrary set forth in this Section, Owner shall not be responsible for clean-up and removal of groundwater contamination migrating to or from an adjacent property not owned by Owner.
11.5 City to Reasonably Approve Counsel; Conduct of Litigation. With respect to Sections 11.2 through 11.4, City reserves the right to either (a) reasonably approve the attorney(s) that Owner selects, hires, or otherwise engages to defend City, which approval shall not be unreasonably withheld or delayed, or (b) conduct its own defense, provided, however, that if City elects to conduct its own defense, Owner shall reimburse City for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefore. To the extent that Owner does not timely pay its full share of attorneys’ fees and court costs, in addition to any other remedy, the City reserves the right to reduce or abandon its defense of any litigation. To the extent that Owner has failed to timely pay its full share of attorneys’ fees and court costs under this section, Owner shall be deemed to have waived any right to participate in the selection of counsel and/or be involved in establishing and implementing litigation strategy, and Owner’s rights under this Agreement shall be suspended until Owner has fully reimbursed the City to make up a funding shortfall created by Owner’s failure to timely pay. Owner shall have the right to audit all billings for such fees and expenses. City shall not have the right to approve counsel selected by Owner to represent Owner’s interests in any litigation. In any joint defense between the City and Owner of matters arising under this Agreement, City shall cooperate fully with Owner’s counsel.
11.6 Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Owner relating to this Agreement, the General Plan, any Development Approvals, including Subsequent Development Approvals, or other development issues affecting the Property shall not delay or stop the development, processing, or construction of the Project, approval of Subsequent Development Approvals, or issuance of “Ministerial Approvals,” unless the third party obtains a court order preventing the 72 60367.00001\45389844.2
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23 activity or invalidating this Agreement or any provision thereof. City shall not stipulate to the issuance of any such order without Owner’s prior written consent. For purposes of this Section, the term “Ministerial Approvals” shall mean the issuance of approvals or permits requiring the determination of conformance with Land Use Regulations and Development Approvals, including, without limitation, site plans, site development permits, area plans, design review, development plans, land use plans, grading plans, improvement plans, building plans and specifications, ministerial issuance or approval of one or more final maps, zoning clearances, grading permits, improvement permits, stormwater management plans, wall permits, building permits, lot line adjustments, conditional and temporary use permits, certificates of use and occupancy, approvals, entitlements, and related matters as may be necessary for the completion of the Project.
11.7 Survival. The provisions of Sections 11.1 through 11.7 inclusive, shall survive the termination, cancellation, or expiration of this Agreement.
12. DEFAULTS AND REMEDIES.
12.1 Major Default Defined. A Major Default, as defined in Section 5.21 of this Agreement, may establish cause for early termination of this Agreement.
This provision does not limit the right of either Party to pursue other nontermination remedies permitted by this Section 12 for Minor Defaults.
12.2 Notice and Termination. Before either Party may declare a Major Default or termination of this Agreement or bring a legal action to terminate this Agreement, the procedures of this Section must be followed. In the case of a Major Default arising from the conduct of an Annual Review, the procedures of this Section shall be strictly followed and shall constitute a second and independent review of the good faith compliance of Owner.
The Party asserting a Default (the “Non-Defaulting Party”) may elect to do so by providing written notice to the Party alleged to be in Default (the “Defaulting Party”) setting forth the nature of the Default and the actions, if any, required by the Defaulting Party to cure the Default. The Defaulting Party shall be deemed in Default if the Defaulting Party fails to cure the Default within thirty (30) business days after the date of such notice (for monetary defaults) or within sixty business (60) days after the date of such notice (for non-monetary defaults) (“cure periods”). If the nature of the alleged Default is such that it cannot reasonably be cured within the applicable cure period, the Defaulting Party shall not be deemed to be in Default if it has commenced efforts to cure the Default within the applicable cure period and continues to diligently pursue completion of the cure.
12.3 Default Remedies. A Party who complies with the notice of Default and opportunity to cure requirements of Section 12.2 may, at its option, institute legal action to cure, correct, or remedy the alleged Default, enjoin any 73 60367.00001\45389844.2
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24 threatened or attempted violation, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. These remedies shall be cumulative rather than exclusive, except as otherwise provided by law.
Furthermore, the City, after first following the procedures set forth in Section
12.2, may give notice of its intent to terminate or modify this Agreement for an uncured Major Default, in which event the matter shall be scheduled for consideration and review by the City Council, using the notice and procedure provisions set forth in Section 10.3 for an Annual Review. The “preponderance of evidence” standard of review set forth in Section 12.4, however, shall be employed rather than the “substantial evidence” standard set forth in Section 10.2.
12.4 Standard of Review. Any determination by City that Owner is in Default shall be based on the preponderance of evidence before the City. In any legal action by Owner challenging the City’s determination of Default, the court shall conduct a de novo review of Owner’s compliance based on the administrative record and determine if the preponderance of evidence supports the City’s determination.
12.5 Owner’s and City’s Exclusive Remedy. City and Owner acknowledge that neither City nor Owner would have entered into this Agreement if it were to be liable for damages under or with respect to all or any part of the Development Plan. Accordingly, except as stated below, neither Party shall sue the other for damages or monetary relief for any matter related to the Development Plan. City may, however, sue Owner for the payment of sums due from Owner to City under provisions of this Agreement which are expressly stated to survive termination of this Agreement. With these exceptions, Owner’s and City’s litigation remedies shall be limited to declaratory and injunctive relief, mandate, and specific performance.
12.6 Waiver; Remedies Cumulative. All waivers of performance must be in a writing signed by the Party granting the waiver. There are no implied waivers. Failure by City or Owner to insist upon the strict performance of any provision of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future.
A written waiver affects only the specific matter waived and defines the performance waived and the duration of the waiver. Unless expressly stated in a written waiver, future performance of the same or any other condition is not waived.
A Party who complies with the notice of Default and opportunity to cure requirements of Section 12.2, where applicable, and elects to pursue a legal or equitable remedy available under this Agreement does not waive its right 74 60367.00001\45389844.2
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25 to pursue any other remedy available under this Agreement, unless prohibited by statute, court rules, or judicial precedent.
Delays, tolling, and other actions arising under Section 14.10 shall not be considered waivers subject to this Section 12.6.
12.7 Alternative Dispute Resolution. Any dispute between the Parties may, upon the mutual agreement of the Parties, be submitted to mediation, binding arbitration, or any other mutually agreeable form of alternative dispute resolution. While an alternative dispute process is pending, the statute of limitation shall be tolled for any claim or cause of action which either of the Parties may have against the other.
13. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES.
13.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner’s sole discretion, from encumbering some or all of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device to secure financing related to the Property or the Project.
13.2 Mortgagee Protection. City acknowledges that the Lender(s) providing financing secured by the Property and/or its improvements may require certain Agreement interpretations and modifications. City shall, at any time requested by Owner or the lender, meet with Owner and representatives of such lender(s) to negotiate in good faith any such interpretation or modification. City will not unreasonably withhold or delay its consent to any requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement.
Any Mortgagee of the Property shall be entitled to the following rights and privileges:
13.2.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value.
13.2.2 If City timely receives a request from a Mortgagee requesting a copy of any notice of Default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of Default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the Default during the remaining cure period allowed Owner under Section 12.2 of this Agreement.
13.2.3 Except as otherwise provided within this Agreement, any Mortgagee who comes into possession of some or all of the 75 60367.00001\45389844.2
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26 Property pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu of such foreclosure or otherwise, shall:
13.2.3.1 Take that property subject to the terms of this Agreement and as Owner’s successor;
13.2.3.2 Have the rights and obligations of an Assignee as set forth in Sections 13.3 and 13.4;
13.2.3.3 Have the right to rely on the provisions of Section 8 of this Agreement, provided that any development
proposed by the Mortgagee is in substantial
conformance with the terms of this Agreement; and
13.2.3.4 Not be liable for any defaults, whether material or immaterial, or monetary obligations of Owner arising
prior to acquisition of title to the Property by the
Mortgagee, except that the Mortgagee may not pursue
development pursuant to this Agreement until all
delinquent and current fees and other monetary
obligations due under this Agreement for the portions
of the Property acquired by the Mortgagee have been
paid to City.
13.3 Transfer or Assignment. Subject to Section 13.5, Owner shall have the right to sell, transfer, or assign its rights and obligations under this Agreement (collectively, an “Assignment”) in connection with a transfer of Owner’s interest in all, any portion of, or any interest in the Property (the “Transferred Property”). No Assignment shall be made unless made together with the sale, transfer, or assignment of all or any portion of Owner’s interest in the Property.
Concurrent with any Assignment, Owner shall notify City in writing of the Assignment and shall provide City with an executed Assignment and Assumption Agreement, in a form substantially similar to Exhibit “E”, executed by the purchaser, transferee, or assignee (collectively, the “Assignee”) to expressly and unconditionally assume all duties and obligations of Owner under this Agreement remaining to be performed at the time of the Assignment. Any Assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreement. Notwithstanding the failure of any Assignee to execute the agreement required herein this Subsection 13.3, the burdens of this Agreement shall be binding upon such Assignee, but the benefits of this Agreement shall not inure to such Assignee until and unless such agreement is executed.
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27 13.4 Effect of Assignment. Subject to Section 13.5 and unless otherwise stated within the Assignment, upon an Assignment:
13.4.1 The Assignee shall be liable for the performance of all obligations of Owner with respect to Transferred Property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”).
13.4.2 The owner of the Retained Property shall be liable for the performance of all obligations of Owner with respect to the Retained Property, but shall have no further obligations with respect to the Transferred Property.
13.4.3 The Assignee’s exercise, use, and enjoyment of the Transferred Property shall be subject to the terms of this Agreement to the same extent as if the Assignee were the Owner.
13.5 City’s Consent. The City’s consent shall not be required to a transfer between Owner and any other entity controlling, controlled by, or under common control with Owner, except an assignment and assumption agreement must be executed between the two entities in a form substantially conforming to Exhibit “E”. Moreover, the City’s consent shall not be required unless, at the time of the Assignment, Owner has been determined to be in Major Default pursuant to Section 12 and the Major Default has not been cured. If Owner is in Major Default, City shall consent to any Assignment which provides adequate security to City, in the reasonable exercise of City’s discretion, to guarantee the cure of the Major Default upon completion of the Assignment.
14. MISCELLANEOUS PROVISIONS.
14.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; “shall” is mandatory; “may” is permissive.
14.2 Entire Agreement. This Agreement constitutes the entire understanding and agreement of City and Owner with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiations or previous agreements between City and Owner respecting the subject matter of this Agreement including, without limitation, the Original City Agreement.
14.3 Recorded Statement Upon Termination. Upon the completion of performance of this Agreement or its cancellation or termination, a statement evidencing completion, cancellation, or termination signed by the appropriate agents of City, shall be recorded in the Official Records of Orange County, California.
14.4 Project as a Private Undertaking. It is specifically understood by City and Owner that (i) the Project is a private development; (ii) City has no interest 77 60367.00001\45389844.2
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28 in or responsibilities for or duty to third parties concerning any improvements to the Property unless City accepts the improvements pursuant to the provisions of this Agreement or in connection with subdivision map approvals; and (iii) Owner shall have the full power and exclusive control of the Property, subject to the obligations of Owner set forth in this Agreement.
14.5 Incorporation of Recitals. Each of the Recitals set forth at the beginning of this Agreement are part of this Agreement.
14.6 Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement.
14.7 Consent. Where the consent or approval of City or Owner is needed to implement Development under this Agreement, the consent or approval shall not be unreasonably withheld, delayed, or conditioned.
14.8 Covenant of Cooperation. City and Owner shall cooperate and deal with each other in good faith and assist each other in the performance of the provisions of this Agreement.
14.9 Execution and Recording. The City Clerk shall cause a copy of this Agreement to be signed by the appropriate representatives of the City and recorded with the Office of the County Recorder of Orange County, California, within six months following the effective date of Ordinance No. _____, the ordinance adopting this Agreement, or prior to building permit issuance, whichever comes first. The failure of the City to sign and/or record this Agreement shall not affect the validity of and binding obligations set forth within this Agreement.
14.10 Delay for Events Beyond the Parties’ Control. Performance by either Party of its obligations under this Agreement shall be excused, and the Term shall be extended, for periods equal to the time during which (1) litigation is pending which challenges any matter, including compliance with CEQA or any other local, state, or federal law, related in any way to the approval or implementation of all or any part of the Development Plan. Any such extension shall be equal to the time between the filing of litigation, on the one hand, and the entry of final judgment or dismissal, on the other. All such extensions shall be cumulative; (2) any application by Owner for state or federal regulatory permits and/or approvals required for the Project has been pending more than one year after its submittal; or (3) a delay is caused by reason of any event beyond the control of City or Owner which prevents or delays performance by City or Owner of obligations under this Agreement. Such events shall include, by way of example and not limitation, acts of nature, enactment of new conflicting federal or state laws or 78 60367.00001\45389844.2
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29 regulations (example: listing of a species as threatened or endangered), judicial actions such as the issuance of restraining orders and injunctions, delay in the issuance of bonds or formation of any Financing Districts, and riots, strikes, or damage to work in process by reason of fire, mud, rain, floods, earthquake, or other such casualties.
If City or Owner seeks excuse from performance, it shall provide written notice of such delay to the other within thirty (30) days of the commencement of such delay. If the delay or default, whether material or immaterial, is beyond the control of City or Owner it shall be excused, and an extension of time for such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. Any disagreement between the Parties with respect to whether this Section
14.10 applies to a particular delay or default is subject to the filing by either Party of an action for judicial review of the matter, including requests for declaratory and/or injunctive relief.
14.11 Interpretation and Governing Law. In any dispute regarding this Agreement, the Agreement shall be governed and interpreted in accordance with the laws of the State of California. Venue for any litigation concerning this Agreement shall be in Orange County, California.
14.12 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
14.13 Estoppel Certificate. Within ten (10) business days following a written request by either of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured Major Defaults under this Agreement or that the responding Party alleges that specified (date and nature) Major Defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification, except as may be represented by the requesting Party and that there are no uncured Major Defaults in the performance of the requesting Party, except as may be represented by the requesting Party. Owner shall pay to City all reasonable administrative costs incurred by City in connection with the issuance of estoppel certificates under this Section 14.13 prior to City’s issuance of such certificates.
14.14 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
14.15 Future Litigation Expenses.
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30 14.15.1 Payment to Prevailing Party. If either Party brings a legal or equitable proceeding against the other Party which arises in any way out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and all other reasonable costs and expenses incurred in that proceeding.
14.15.2 Scope of Fees. Attorneys’ fees under this Section shall include attorneys’ fees on any appeal and in any post-judgment
proceedings to collect or enforce the judgment. The provisions in
14.15.1 through 14.15.3 are separate and several and shall survive the termination of this Agreement.
14.15.3 Limitation of Liability. Owner’s obligations under this Agreement are solely those of Owner. In no event shall any present, past or future officer, director, shareholder, member, employee, partner, affiliate, manager, representative or agent of Owner (a “Related Party”) have any personal liability, directly or indirectly, under this Agreement. Recourse in any way connected with or arising from this Agreement shall not be available against any Related Party. 80 60367.00001\45389844.2
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31 Owner and City have executed this Agreement on the dates set forth below.
CITY
City of Aliso Viejo
By:___________________________
Max Duncan
Mayor
Date:
OWNER
Brandywine Acquisition Group, a
limited-liability company
By:
Its:
Date:
ATTEST:
By: _________________________
City Clerk
OWNER:
By: ___________________________
APPROVED AS TO FORM:
By:___________________________
Scott C. Smith
City Attorney
Date:
By: ___________________________
Name:
Title:
81 32
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of______________________________)
On before me,
(insert name and title of the officer)
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 ________________________________(Seal)
82 A-33
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of______________________________)
On before me,
(insert name and title of the officer)
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 ________________________________(Seal)
83 A-1
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EXHIBIT “A”
LEGAL DESCRIPTION
84 B-1
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EXHIBIT “B”
GENERAL PLAN AMENDMENT
GPA-2026-01002
Property Location – 15 Argonaut, Aliso Viejo, CA
Existing Land Use Designation – Business Park (“BP”)
Proposed Land Use Designation – Medium Density Residential (RM) 85 C-1
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EXHIBIT "C"
PUBLIC BENEFITS
In addition to complying with the Project conditions of approval, Owner has committed by this Agreement to contribute to the City for, among other things, certain "Public Benefits." Owner shall make contributions to the City, as follows:
1. City Public Benefit Fee. Owner shall pay a one-time City Public Benefit Fee in the amount of Two Million Fifty-Seven Thousand, Six Hundred Fifty-One Dollars and No Cents ($2,057,651.00). This fee is inclusive of any and all park in-lieu fee required under the Quimby Act and/or Aliso Viejo Municipal Code Chapter 14.16. Because this fee is an obligation arising from a Development Agreement, it is not subject to the Mitigation Fee Act. This Agreement does not limit the purposes for which the City may use City Public Benefit Fees, and the use and timing of such use of City Public Benefit Fees shall be entirely within the City’s sole and absolute discretion.
2. Payment of the full City Public Benefit Fee shall be made to the City prior to the issuance of any permit for the Project. No permit shall be issued until the City has received the full payment and has confirmed compliance with all applicable fee requirements. The City shall have no obligation to issue any permit until and unless such payment is received in full, and any delay resulting from non-payment shall be solely the responsibility of the Owner.
3. To the extent that Owner not has paid to City the entirety of the Public Benefit Fee within the first three years of this Agreement, for any reason, any and all remaining portion of the City Public Benefit Fee shall be increased, annually, on the anniversary date of the Agreement starting in the fourth year of the Agreement and continuing every subsequent year of the Agreement’s term. The City Public Benefit Fee shall be increased by a percentage set by the Consumer Price Index, which is defined at the Consumer Price Index for all Urban Consumers (CPI-U), published by the Bureau of Labor Statistics of the United States Department of Labor for Los-Angeles-RiversideOrange County, All Items (1982-84=100) and utilizing the prior calendar year’s average as the annual average. If this Index is discontinued, the Parties shall use any other renamed national index covering the Aliso Viejo metropolitan areas or any other successor or substitute index appropriately adjusted. In no event shall the City Public Benefit Fee be reduced.
86 C-2
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EXHIBIT “D”
DENSITY BONUS HOUSING AGREEMENT
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RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: City Manager
Free Recording pursuant to
Government Code 6103 & 27383
DENSITY BONUS HOUSING AGREEMENT
BRANDYWINE ACQUISITION GROUP, LLC
15 Argonaut, Aliso Viejo, CA
This DENSITY BONUS HOUSING AGREEMENT (“Agreement”) is made and entered into this [date], by and between the City of Aliso Viejo (“City”), a California municipal corporation, and BRANDYWINE ACQUISITION GROUP, LLC, a California limited liability company (“Developer”). City and Developer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
RECITALS
A. Developer owns that certain real property located within the City of Aliso Viejo, County of Orange, State of California, commonly known as 15 Argonaut, Aliso Viejo, CA (APNs 623-093-10 and 623-093-11) more particularly described in the legal description attached as Exhibit A and more particularly depicted in Exhibit B (“Property”).
B. Developer is proposing the construction of 58 units on the Property, with related amenities and improvements, as further set forth in Resolution Nos. 2026-27, 28 and 29 and Ordinance Nos. 2025-256 approving the project (“Project”).
C. The Project qualifies for a density bonus under California Government Code section 65915 et seq. (“State Density Bonus Law”). Under the State Density Bonus Law, the Project will provide 3 residential units for sale to Very Low Income Households (“Affordable Units”), as set forth in this Agreement.
D. In accordance with State Density Bonus Law, Developer has requested, and City has granted, certain concessions, incentives, and waivers more particularly set forth herein.
E. This Agreement, including the attached exhibits, sets forth the terms and conditions for implementing the Project’s requirement to provide the Affordable Units in exchange for receiving the concessions, incentives and waivers, as set forth herein. 88 60367.00001\45453422.1
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NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. In addition to the terms that may be defined elsewhere in this Agreement, the following terms when used in this Agreement shall be defined as follows:
1.1.1 “Adjusted for family size appropriate to the unit” has the meaning provided in California Health and Safety Code section 50052.5(h).
1.1.2 “Affordable Housing Cost” means the maximum purchase price that results in an affordable housing cost, adjusted for family size appropriate to the unit, for a Very Low Income Household, as determined pursuant to Health and Safety Code section 50052.5(b) and applicable HCD regulations.
1.1.3 “Affordable Units” means the 3 Units within the Project to be sold by Developer to Qualified Purchasers in accordance with this Agreement. An “Affordable Unit” means one of the Affordable Units.
1.1.4 “AMI” means the Orange County, California, area median income, as periodically published by HCD.
1.1.5 “City” means the City of Aliso Viejo, California.
1.1.6 “City Attorney” means the City Attorney for the City.
1.1.7 “City Council” means the City Council of the City.
1.1.8 “City Deed of Trust” means a Deed of Trust and Security Agreement executed by a Qualified Purchaser and recorded as a lien against the Affordable Unit acquired by that Qualified Purchaser as required by the terms of the Equity Sharing Agreement, the form of which is attached to the Equity Sharing Agreement.
1.1.9 “City Manager” means the City Manager for the City.
1.1.10 “City Note” means the promissory note executed by a Qualified Purchaser in favor of City pursuant to the Equity Sharing Agreement, the form of which is attached to the Equity Sharing Agreement.
1.1.11 “Developer” means BRANDYWINE ACQUISITION GROUP, LLC, a California limited liability company, and its successors and assigns to all or any part of the Property, the Project, or this Agreement. “Developer” does not include an ultimate purchaser of an individual Unit in a retail sale.
1.1.12 “Effective Date” means the date that City executes this Agreement. 89 60367.00001\45453422.1
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1.1.13 “Equity Sharing Agreement” means that certain Owner Occupancy and Equity Sharing Agreement to be entered into by and between City and each Qualified Purchaser that purchases an Affordable Unit, which shall be recorded against each Affordable Unit in the form attached hereto as Exhibit C.
1.1.14 “HCD” means the California Department of Housing and Community Development.
1.1.15 “Household” means all persons residing in a Unit.
1.1.16 “Income Verification Materials” means those materials specified in Section 4.5 to verify the income of a proposed purchaser of an Affordable Unit.
1.1.17 “Market Rate Units” means the Units within the Project to be sold by Developer to a household without restriction.
1.1.18 “Project” means that certain residential development as more particularly described in the Recitals above and Section 2 below.
1.1.19 “Project Approvals” means the Project’s approved entitlements pursuant to Resolution Nos. 2026-27, 28 and 29 and Ordinance Nos. 2025-256 and all terms and conditions stated therein. The Project Approvals include, but are not limited to, that certain Development Agreement dated [insert], between Developer and City governing the development of the Project on the Property.
1.1.20 “Property” means that certain real property more particularly described in the legal description in Exhibit A.
1.1.21 “Qualified Purchaser” means a person or family who complies with the requirements of Sections 4.5 and 4.6 and qualifies as a Very Low Income Household.
1.1.22 “State Density Bonus Law” means Government Code section 65915 et seq., as of the Effective Date.
1.1.23 “Unit” means a residential dwelling unit within the Project to be constructed by Developer pursuant to the Project Approvals. The Project contains a total of 58 Units, with 3 Affordable Units and 55 Market Rate Units.
1.1.24 “Very Low Income Household” means persons and families whose income does not exceed 50 percent of the AMI, adjusted for household size, as determined for the County of Orange in accordance with California Health and Safety Code section 50105, and implementing regulations published by HCD.
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1.2 Exhibits. The following documents are attached hereto and incorporated herein by this reference:
Exhibit “A” – Legal Description of Property
Exhibit “B” – Map Showing Property and its Location
Exhibit “C” – Equity Sharing Agreement (and attachments)
2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Developer shall develop the Project on the Property in accordance with this Agreement and the Project Approvals.
2.2 No Increase in Density. Developer acknowledges and agrees that Developer has not requested, and the Project is not receiving, an increase in density under State Density Bonus Law.
2.3 Market Rate Units. The Project shall have no more than 55 Market Rate Units with unit sizes as may be determined by Developer in accordance with the Project Approvals. Developer may alter the unit distribution of the Market Rate Units in Developer’s discretion, provided that the Project has the minimum number of Affordable Units and the minimum distribution thereof as specified in this Agreement.
2.4 Affordable Units. The Project shall have no less than 3 Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent in terms of type, design, and number of bedrooms with the Market Rate Unit types as depicted in the Project Approvals. The Affordable Units shall be located throughout the Project and not clustered in one area or building.
2.5 Minimum Development Standards for Affordable Units; Access and Restrictions.
The Affordable Units shall be constructed with the same exterior appearance and standard interior features, fixtures, and amenities, and shall use the same type and quality of materials as provided for the Market Rate Units of the same model and size. City acknowledges that purchasers of Market Rate Units may elect to purchase optional upgrades and such optional upgrades may not be available for the Affordable Units. Except as otherwise authorized by City in writing, the Affordable Units shall be constructed concurrently with the Market Rate Units. The Affordable Units, and their occupants, shall have access to all common areas of the Project to the same extent as occupants of the Market Rate Units.
2.6 Development Concessions, Incentives, and Waivers. In accordance with State Density Bonus Law, the Project is hereby granted the following: one concession from otherwise applicable minimum boundary landscaping requirement, one waiver from otherwise applicable setback requirements, and one waiver from otherwise applicable height requirements.
2.7 Parking Requirements. The Project’s onsite parking shall be provided in compliance with Government Code sections 65915(p)(1)(A)-(B). The Project will provide 140 total onsite parking spaces.
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2.8 No Increase in Density or Further Concessions, Incentives, or Waivers.
Developer acknowledges and agrees that the concessions, incentives, and waivers set forth in Section 2.6 and 2.7 fully satisfy City’s duty to grant a density bonus and any other incentive, concession, or waiver of any building, zoning, or other requirement in connection with the Project, State Density Bonus Law, and the City’s Density Bonus Ordinance. Additionally, Developer acknowledges and agrees that Developer has not requested, and the Project is not receiving, an increase in density under State Density Bonus Law or City’s Density Bonus Ordinance. By way of this Agreement, Developer releases any and all claims Developer may have against City in any way relating to or arising from City’s satisfaction of its obligations under Government Code section 65915 with respect to the Project.
2.9 Permits and Processing; Compliance with Laws. Developer, at its sole cost and expense, or as otherwise set forth in a separate written agreement, shall secure or cause to be secured any and all permits that may be required for development of the Project by City or any other federal, state, or local governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any and all permits, Developer shall carry out and perform the development of the Project, or cause the performance of the development of the Project, in conformity with all applicable federal, state, and local laws and regulations, and all conditions of approval issued by City, including the Project Approvals. If any changes to the Project materially alter Developer’s ability to comply with any terms of this Agreement, in City’s reasonable determination, then City and Developer shall meet and confer to address amendments and revisions to this Agreement as necessary.
2.10 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party for relocation assistance, benefits and costs prior to the completion of the development of the Project.
2.11 Mechanic's Liens; Indemnification. Prior to the closing of the sale of an Affordable Unit, Developer shall take all actions necessary to remove any then-existing mechanic's liens or other similar liens (including design professional liens) against the Property, the Project, or any part thereof, by reason of work, labor, services, or materials supplied or claimed to have been supplied to Developer or caused by, at the direction of, or on behalf of Developer. Prior to the recording of this Agreement pursuant to Section 3.1 below, Developer shall provide evidence from a reputable title company of any new recordings against the Property or Project. City hereby reserves all rights to post notices of non-responsibility and any other notices as may be appropriate upon a filing of a mechanic's lien. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of Developer’s choosing and reasonably approved by City), and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, 92 60367.00001\45453422.1
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or materials supplied or claimed to have been supplied to Developer or caused by, at the direction of, or on behalf of Developer. The provisions of this Section 2.11 survive termination of this Agreement.
3. RECORDING OF AGREEMENT
3.1 Recording. Prior to the issuance of any building permit for the Project, Developer shall record or shall cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing this Agreement in recordable form.
4. SALE OF UNITS
4.1 Conveyance of Units. Developer may construct and convey title to the Units at any time after the Effective Date, in accordance with this Agreement, the Project Approvals, and any and all federal, state, and local laws and regulations. Developer may offer to sell some or all Units in phases or all at once in Developer’s discretion, provided Developer’s sale complies with applicable federal, state, and local laws and regulations. Developer shall convey title to each Affordable Unit through a purchase and sale agreement to be processed through an escrow. Upon City’s request, Developer shall deliver to City a copy of the purchase and sale agreement and preliminary title report for the conveyance of an Affordable Unit.
4.2 Notice to City. Developer shall provide City with no less than 60 days written notice prior to the date that Developer intends to commence activities to market, offer, or sell the Affordable Units.
4.3 Designation of Affordable Units. Prior to commencement of any activities to market, offer, or sell the Units, Developer shall designate the 3 Units as Affordable Units.
Developer’s notice to City under Section 4.2 above shall disclose to City which Units Developer has designated as the Affordable Units. [NOTE: AS AN ALTERNATIVE, WE CAN PREDESIGNATE NOW AND CHANGE THIS SECITON TO READ AS FOLLOWS:
“Developer has designated Units 53, 54, and 55 as Affordable Units.”]
4.4 Sale of Affordable Units. Developer shall sell each Affordable Unit at no more than the Affordable Housing Cost and only to a buyer that qualifies as a Qualified Purchaser. So that City may verify the amount is not more than the Affordable Housing Cost, Developer shall provide written notice to City of the sale price of each Affordable Unit prior to offering for sale the Affordable Unit. City verification shall be provided within 30 days of City’s receipt of Developer’s written notice of the proposed sale price. Developer shall sell each Affordable Unit only to those who qualify as a Qualified Purchaser, as determined pursuant to Sections 4.5 and 4.6.
Developer shall not knowingly convey title to any Affordable Unit to a Household that does not qualify as a Very Low Income Household, and Developer shall not convey fee title to any Affordable Unit to a Very Low Income Household at a price that exceeds the Affordable Housing Cost for that Affordable Unit.
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by the proposed purchaser for the prior two calendar years; preceding six months of bank statements of the proposed purchaser; background documentation of any income (e.g., Social Security award letter, stock interest forms, court statement regarding support payments, retirement or pension benefit statement, etc.); copies of the two most current wage earning statements of the proposed purchaser; the purchase price that the proposed purchaser intends to pay for the Affordable Unit; and any other information that City may reasonably require to verify the income of the proposed purchaser. The proposed purchaser of an Affordable Unit shall also provide, for the purpose of City approval, a written statement signed by the proposed purchaser (in a form acceptable to City) that authorizes City to inspect, use, and rely on the information provided by the proposed purchaser, and waives and releases any right or claim that said proposed purchaser might otherwise have in the absence of such written authorization to maintain the privacy or confidentiality of such information. The information, statements, agreements, and other documents that a proposed purchaser is required to provide pursuant to this section 4.5 are collectively the “Income Verification Materials.” Developer shall have the obligation to collect and compile all Income Verification Materials from a proposed purchaser of an Affordable Unit. Developer shall be responsible for working with the proposed purchaser to compile all required Income Verification Materials to be submitted to the City for approval, which may be accomplished by Developer contracting with a third-party consultant to provide such services.
4.6 City Verification. Developer shall not convey fee title to any Affordable Units to a proposed purchaser until such time as City has determined (i) the proposed purchaser intends to occupy the Affordable Unit as a principal residence; (ii) the proposed purchaser is a Very Low Income Household; (iii) the purchase price for the Affordable Unit does not exceed the Affordable Housing Cost; (iv) the proposed purchaser and City have executed the Equity Sharing Agreement, the proposed purchaser has executed the City Note and the City Deed of Trust, and the Equity Sharing Agreement and City Deed of Trust are both in a recordable form; and (v) the proposed conveyance will not otherwise violate the terms and conditions of this Agreement. Developer shall reasonably cooperate with City in its determination of the matters set forth in clauses (i)-(v) herein and Developer shall be entitled to conclusively rely on any City determination regarding Developer’s compliance with this Section 4.6. City shall respond to a request from Developer for verification of the matters in clauses (i)-(v) herein by written notice, which shall be delivered to Developer within 30 days of City’s receipt of all Income Verification Materials and all other information and documents reasonably required by City to make the determinations described in clauses (i) through (v). If City is unable to verify the proposed purchaser’s income as provided herein, then the prospective purchaser’s income shall be deemed to exceed the maximum allowable limit for a Very Low Income Household. If City determines a proposed conveyance would violate this Agreement, City shall specify the reasons for the violation. If the proposed violation is not corrected to the satisfaction of City within 30 days after the date of the notice specifying the violation, or within such further time as City determines in its sole and absolute discretion is necessary to correct said violation, Developer shall not convey title to the proposed purchaser. City may apply to a court of competent jurisdiction for specific performance of this Agreement, for a declaration that the proposed conveyance is void, or for any such relief as may be appropriate under law or equity.
4.7 Quality Standards for Affordable Units. At the time of conveyance of an Affordable Unit from Developer to a Qualified Purchaser, the physical condition and quality of the Affordable Unit shall be in the same physical condition and of the same quality (as to standard features, but 94 60367.00001\45453422.1
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not upgrades) as the other Market Rate Units of the same model and size that Developer has offered for sale.
4.8 Execution of Equity Sharing Agreement and City Note; Recording the Equity Sharing Agreement and City Deed of Trust. Developer shall cause the Equity Sharing Agreement, the City Note, and the City Deed of Trust, together with all attachments thereto, to be duly executed with the Equity Sharing Agreement and City Deed of Trust executed in recordable form. At the close of escrow, the escrow agent handling the conveyance shall record, or cause to be recorded, the instruments effectuating the conveyance of the Affordable Unit in the Official Records of Orange County, California, including the grant deed conveying title to the Qualified Purchaser, the Equity Sharing Agreement, the City Deed of Trust, and any other instruments necessary to consummate the conveyance and establish the intended priority of liens and encumbrances under this Agreement, the Equity Sharing Agreement, and the City Deed of Trust. Upon recordation, the Equity Sharing Agreement shall run with the Affordable Unit and the City Deed of Trust shall constitute a lien against the Affordable Unit. City shall cooperate with Developer and each Qualified Purchaser in executing the Equity Sharing Agreement and any other documents requiring City’s execution so that such documents may be delivered into escrow for recording at the close of escrow.
4.9 Sale of Units; Indemnification. In addition to any other indemnification provided in this Agreement, Developer shall indemnify, defend (with counsel of Developer’s choosing and reasonably approved by City), and hold harmless City and its officials, officers, employees, representatives, agents, and volunteers (collectively, “Indemnitees”) from and against any claims, liabilities, damages, or losses alleged or made against Indemnitees by any person or entity for any alleged or actual violation by Developer of any federal, state, or local law or regulation in connection with the sale by Developer of the Units or otherwise arising from any act or omission of Developer in violation of this Section 4, except in each instance to the extent caused by the gross negligence or willful misconduct of any of the Indemnitees. The provisions of this Section
4.9 survive termination of this Agreement.
4.10 Qualified Purchaser Marketing and Orientation. Developer shall be responsible for marketing the Affordable Units to potential Qualified Purchasers. Developer shall coordinate with designated City staff for the marketing plan of any Affordable Units. As part of the marketing plan, before the Qualified Purchaser executes the Equity Sharing Agreement and in all events before the close of escrow for the applicable Affordable Unit, City shall provide to the Qualified Purchaser of the Affordable Unit an in-person, informational session that will explain, in plain and simple language, the resale restrictions and other provisions of the Equity Sharing Agreement. Upon completion of the informational session, City shall cause the Qualified Purchaser to execute an agreement, in a form approved by City, acknowledging the Qualified Purchaser’s attendance at the informational session and providing for the Qualified Purchaser’s waiver and release of Developer and City from any claims or causes of action related to the restrictions on the marketability of the Affordable Unit, provided that the Qualified Purchaser represents that they understand the restrictions on marketability.
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occupancy for such Affordable Unit, Developer may sell or otherwise transfer such Affordable Unit to a qualified nonprofit housing corporation that meets all of the requirements set forth in Government Code section 65915(c)(2)(A)(ii) and any other applicable provisions of state law, which sale or transfer shall satisfy the requirements of this Agreement applicable to Developer. If Developer sells or otherwise transfers an Affordable Unit pursuant to this Section 4.11, City and Developer shall reasonably cooperate in executing such amendments to this Agreement, and any other documents executed in connection herewith, as may be reasonably necessary to reflect such sale or transfer and to implement the requirements of Government Code section 65915 applicable thereto.
5. TERM
5.1 Term. The term of this Agreement commences on the Effective Date and will continue until all of the Affordable Units have been conveyed to Qualified Purchasers and (i) each Qualified Purchaser has entered into a fully executed Equity Sharing Agreement with City in recordable form; (ii) each Qualified Purchaser has executed a City Note and City Deed of Trust in favor of City; and (iii) all of the Equity Sharing Agreements and City Deeds of Trust for all Affordable Units have been recorded. Developer shall provide, upon City’s request, evidence that Equity Sharing Agreements and the City Deeds of Trust have been recorded for all of the Affordable Units. Termination of this Agreement shall not affect the continued validity or enforceability of any Equity Sharing Agreement, City Note, or City Deed of Trust executed in connection with an Affordable Unit. Nor shall termination of this Agreement affect any rights or remedies arising from a breach occurring before termination.
6. DEFAULT AND TERMINATION; INDEMNIFICATION
6.1 Default. Failure or delay by any Party to perform any term or provision of this Agreement that is not cured within 30 days after receipt of notice from the other Party specifying the default (or such other period specifically provided herein) constitutes a default under this Agreement; provided, however, if such default is of the nature requiring more than 30 days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within such 30 day period, and thereafter diligently pursuing such cure to completion within an additional 60 days following the conclusion of such 30 day period (for a total of 90 days). Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until the time for cure has expired. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default.
6.2 Rights and Remedies Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
6.3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Developer agrees to defend (with counsel of Developer’s choosing and reasonably approved by City), indemnify and hold harmless the Indemnitees from and against any loss, liability, claim, or judgment arising from or related to any act or omission of Developer in connection with its obligations under this Agreement, except to the extent caused by the gross 96 60367.00001\45453422.1
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negligence or willful misconduct of any of the Indemnitees. The provisions of this Section 6.3 survive the termination of this Agreement.
7. ASSIGNMENT; COVENANTS RUN WITH THE LAND
7.1 Assignment by Developer. Developer will comply with the Project Approvals in connection with any sale, transfer, or assignment of the Property or Project in whole or part, or any transfer or assignment of Developer’s rights and obligations under this Agreement.
7.2 Covenants Run with the Land. The Property shall be used, occupied, and improved subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall run with the Property and shall be binding upon Developer and all persons having any right, title or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, and shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City. City is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that Developer's interest in the Property may be rendered less valuable thereby. Developer hereby further declares its understanding and intent that this Agreement provides a public benefit and that the covenants set forth herein touch and concern the Property by furthering the health, safety, and welfare of the residents of the City. Notwithstanding anything in this Agreement to the contrary: (a) in the event that Developer transfers its interest in the Property to a successor, Developer shall have no further obligation or liability under this Agreement except to the extent arising out of a default by Developer under this Agreement that existed at the time of such transfer; and (b) this Agreement shall automatically terminate and be of no further force or effect, without any additional instrument or other action required, as to each of the Market Rate Units upon the closing of the sale of each such Market Rate Unit to the initial purchaser thereof.
8. MISCELLANEOUS
8.1 Entire Agreement. This Agreement, including all of its exhibits and attachments, contains the Parties’ entire understanding and agreement with respect to the matters set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine this Agreement’s terms or conditions.
8.2 Notices.
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8.2.1 Delivery. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown on the delivery receipt, after deposit with a known and reliable next-day document delivery service (such as FedEx), charges prepaid and addressed to the recipient named below. All notices shall be addressed as follows:
If to City: City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: City Manager
With a copy to: Best Best & Krieger LLP
18101 Von Karman Ave.
Unit 1000
Irvine, CA 92612
Attn: Scott Smith
If to Developer: Brandywine Acquisition Group, LLC
2355 Main Street, Suite 220
Irvine, CA 92614
With a copy to: Cox, Castle & Nicholson LLP
2029 Century Park East, Suite 2100
Los Angeles, CA 90067
Attn: Andrew K. Fogg, Esq.
8.2.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 98 60367.00001\45453422.1
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8.4 Interpretation and Governing Law. This Agreement and any dispute hereunder shall be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof.
8.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
8.6 Singular and Plural. As used herein, the singular of any word includes the plural, and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include the other as context so dictates.
8.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property or Project is owned, in whole or in part, by more than one party developing or selling the Units to the initial purchasers thereof, then all obligations of the Developer under this Agreement shall be joint and several as to such parties, and the default of any one of such Developers shall be the default of all such Developers.
8.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
8.9 Computation of Days. Unless otherwise specified in this Agreement or any exhibit attached hereto, use of the term “days” shall mean calendar days. For purposes of this Agreement and all exhibits attached hereto, “business days” means every day of the week except Saturdays, Sundays, official State holidays as recognized in Government Code section 19853(a) or successor statute, and any days in which City is closed for business.
8.10 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter.
8.11 Non-Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, veteran or military status, source of income, or genetic information, as defined and prohibited by applicable law. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
8.12 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument.
8.13 Jurisdiction and Venue. Any action at law or in equity under this Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of 99 60367.00001\45453422.1
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any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
8.14 Attorneys' Fees and Costs. If any party to this Agreement institutes any action, suit, counterclaim, appeal or arbitration for any relief against another party, declaratory or otherwise (collectively an “Action”), to enforce the terms hereof or to declare rights hereunder or with respect to any inaccuracies or material omissions in connection with any of the terms, conditions, representations or warranties on the part of the other party to this Agreement, then the prevailing party in such Action, whether by arbitration or final judgment, shall be entitled to have and recover from the other party all costs and expenses of the Action, including reasonable attorneys’ fees and costs incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award granted therein, all of which shall be deemed to have accrued on the commencement of such Action. For purposes of this section, costs shall include, without limitation, in addition to costs incurred in prosecution or defense of the underlying action, reasonable attorneys’ fees, costs, expenses and expert fees and costs incurred in the following: (a) post judgment motions and collection actions; (b) discovery; and (c) appeals of any order or judgment.
For the purposes of this Agreement the term “prevailing party” shall have the meaning set forth in California Code of Civil Procedure section 1032(a)(4).
8.15 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the development of such property.
8.16 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and in the satisfaction of the Project and conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or the Project or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additional agreements as may be reasonably necessary or proper to fulfill City's obligations under this Agreement. The City Manager may delegate their powers and duties under this Agreement to an authorized management level employee of City.
8.17 Amendment. Any alteration, change, or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance approved by the City Council and signed on behalf of each Party. Any requested alteration, change, or modification of this Agreement by Developer shall require the payment of fees or deposit by Developer to City, as applicable, for City’s review of the request. Each alteration, change, or modification to this 100
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Agreement shall be recorded against the Property in the Official Records of Orange County, California.
{Signatures on following page}
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IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing Agreement to be executed on the date set forth at the beginning of this Agreement.
DEVELOPER:
BRANDYWINE ACQUISITION GROUP,
LLC, a California limited liability company
By: ___________________________
Name: _________________________
Title: __________________________
CITY:
City of Aliso Viejo,
a California municipal corporation
By: _____________________
Brett Chaning
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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 (Seal)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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 (Seal)
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A-1 Exhibit A
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT B
MAP SHOWING PROPERTY AND ITS LOCATION
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EXHIBIT C
EQUITY SHARING AGREEMENT (AND ATTACHMENTS)
(Attached behind this cover page)
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RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: City Manager
Free Recording pursuant to
Government Code 6103 & 27383
OWNER OCCUPANCY AND EQUITY SHARING AGREEMENT
(DENSITY BONUS UNIT)
Owner:
Property:
Purchase Price: $
Original Fair Market Value: $
City Subsidy Amount: $
This Owner Occupancy and Equity Sharing Agreement (“Equity Sharing Agreement”) is entered into as of this [date], by and between the City of Aliso Viejo, California, (“City”) and [name(s)] (referred to herein as “Buyer” and sometimes as “Owner”).
RECITALS
A. BRANDYWINE ACQUISITION GROUP, LLC, a California limited liability company, (“Developer”), applied for and received development entitlements from City for the development of a 58 unit residential project (“Project”). 3 units within the Project will be designated affordable units for Very Low Income Households (“Affordable Units”).
B. Pursuant to Government Code section 65915 et seq. (“State Density Bonus Law”), projects that include specified levels of affordable housing are entitled to receive certain density bonuses and other incentives to facilitate the economic feasibility of those projects.
C. In accordance with State Density Bonus Law, Developer has proposed to sell 3 dwelling units in the Project to Very Low Income Households and requested 2 concessions and 1 waiver in order to accommodate the Project.
D. On [date], City and Developer entered into that certain “Density Bonus Housing Agreement” pursuant to which Developer agreed to provide the Affordable Units. 108
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E. Buyer intends to purchase the property located at 25 Argonaut in the City of Aliso Viejo, California, County of Orange (“Property”). The Property, which is one of the Affordable Units, is more particularly described in Exhibit A-1.
F. To comply with the requirements of the Density Bonus Housing Agreement, Developer agrees to sell the Property to Buyer for a purchase price of $[insert] (“Original Purchase Price”). Buyer and City agree that the fair market value of the Property at time of purchase is $[insert] (“Original Fair Market Value”), which price is based on an appraisal conducted at the time of the purchase of the Property by Buyer, or such other method as agreed to by City and Buyer. The Original Purchase Price has been reduced from fair market value as a direct result of the requirements imposed by City on the Project pursuant to the Density Bonus Housing Agreement. City and Buyer acknowledge that the difference between the Original Fair Market Value and the Original Purchase Price, which is equal to $[insert], is a subsidy from City that has enabled Buyer to acquire the Property at an affordable price (“City Subsidy”).
G. State Density Bonus Law requires City to enter into an agreement with the purchaser of any affordable dwelling unit constructed and sold in exchange for such density bonus that allows City to recapture any initial subsidy and its proportionate share of appreciation. Buyer has agreed to execute and comply with this Equity Sharing Agreement in compliance with such requirements in consideration of the opportunity to purchase the Property at an affordable price, which is below the fair market value of the Property.
H. The purpose of this Equity Sharing Agreement is to: (i) place controls on ownership and occupancy of the Property; (ii) provide City with a First Option when Owner intends to Transfer the Property and preserve City’s rights in the event of foreclosure; and (iii) require payment of the City Subsidy and a share of the Property’s appreciation to City in accordance with the State Density Bonus Law. In accordance with the foregoing, Owner shall execute a promissory note in favor of City (“City Note”) to ensure the repayment of the City Subsidy and the City Shared Appreciation, as defined in Section 8(a). The form of the City Note is attached hereto as Exhibit B-1.
I. Buyer is receiving a first mortgage loan (“First Mortgage Loan”) from [lender name] (“First Lender”). The First Mortgage Loan is secured by a deed of trust dated [insert], executed by Buyer in favor of First Lender and recorded in the County of Orange concurrently herewith (“First Mortgage Deed of Trust”).
J. This Equity Sharing Agreement and the City Note shall be secured by a deed of trust on the Property (“City Deed of Trust”). The form of the City Deed of Trust is attached hereto as Exhibit C-1. This Equity Sharing Agreement and the City Deed of Trust shall be subordinate to the lien of the First Mortgage Deed of Trust.
NOW, THEREFORE, in consideration of the benefits received by Buyer and City hereunder, Buyer and City agree as follows:
AGREEMENT
1. DEFINITIONS
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The following terms are specially defined for this Equity Sharing Agreement and their definitions can be found in the sections indicated below:
a. “Affordable Housing Cost” — Same meaning as provided in the Density Bonus Housing Agreement.
b. “Buyer” or “Owner” — First sentence on page 1 of this Equity Sharing Agreement c. “City” — First sentence on page 1 of this Equity Sharing Agreement d. “City Deed of Trust” — Recital J
e. “City Note” — Recital H
f. “City Shared Appreciation” — Section 8.a
g. “City Subsidy” —Recital F
h. “Default” — Section 9
i. “Density Bonus Housing Agreement” – Recital D
j. “Eligible Capital Improvements” — Section 8.b
k. “Fair Market Value” — Section 6
l. “First Lender” — Recital I
m. “First Mortgage Deed of Trust” — Recital I
n. “First Mortgage Loan” — Recital I
o. “Original Fair Market Value” — Recital F
p. “Original Purchase Price” — Recital F
q. “Owner’s Notice of Intent to Transfer” — Section 6
r. “Property” — Recital E and Section 2
s. “Transfer” — Section 5
t. “Very Low Income Household” – same meaning as provided in the Density Bonus Housing Agreement.
2. DESCRIPTION OF PROPERTY
This Agreement concerns the real property commonly known as 25 Argonaut, which is more fully described in Exhibit A-1 (“Property”).
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3. BUYER CERTIFICATIONS; OWNER OCCUPANCY REQUIREMENT
a. Owner Occupancy Requirement. The purpose of the City assistance provided pursuant to this Equity Sharing Agreement is to provide Buyer with the opportunity to become a homeowner. Investment in real estate is not the primary purpose of this Equity Sharing Agreement.
Therefore, Buyer shall occupy the Property as Buyer’s principal place of residence for at least 10 months during each 12-month period. City may grant a temporary waiver of this occupancy requirement for good cause in its sole discretion.
b. Buyer Certifications. Buyer certifies that the financial and other information previously provided in order to qualify to purchase the Property is true and correct as of the date first written above.
4. INSURANCE REQUIREMENTS
Buyer shall maintain insurance on the Property in accordance with Section 5 of the City Deed of Trust.
5. RESTRICTIONS ON RESALE OF THE PROPERTY
Any Transfer of the Property will be subject to the provisions of this Agreement. “Transfer” means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Property, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains title, or a deed of trust. Any Transfer without satisfaction of the provisions of this Agreement is prohibited and shall constitute a default by Owner for which City may exercise any and all remedies under this Agreement, the City Note and the City Deed of Trust.
A Transfer shall not include a conveyance: (i) to an existing spouse or domestic partner; (ii) by an Owner to a spouse or domestic partner where the spouse or domestic partner becomes the coowner of the Property; (iii) between spouses as part of a marriage dissolution proceeding; (iv) by Owner into an inter vivos trust in which Owner is the beneficiary; or (v) refinance of the First Mortgage Loan meeting the requirements of Section 17; provided, however, that Owner shall provide written notice to City of all such conveyances within 30 days of the conveyance and Owner shall continue to occupy the Property as Owner’s principal place of residence (except where the conveyance occurs pursuant to subsection (iii) above, in which event the new owner shall occupy the Property and affirmatively assume Owner’s obligations under this Agreement, the City Note, and the City Deed of Trust).
6. NOTICE OF INTENDED TRANSFER; CITY’S FIRST OPTION;
PREPARATION OF PROPERTY FOR SALE
a. Notice of Intent to Transfer. If Owner intends to Transfer the Property, Owner shall promptly give City written notice of such intent (“Owner’s Notice of Intent to Transfer”). Owner shall give City the Owner’s Notice of Intent to Transfer prior to notifying real estate brokers or lenders of Owner’s intent to Transfer the Property and prior to listing of the Property on the Multiple Listing Service. The Owner’s Notice of Intent to Transfer shall be sent to City by certified 111
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mail, return receipt requested at the address provided in Section 22 below. The Owner’s Notice of Intent to Transfer shall include the information necessary for City to determine the City Shared Appreciation of the Property, including the following information:
(1) The address of the Property;
(2) The date of purchase of the Property by Owner;
(3) The Original Fair Market Value of the Property at the time of Owner’s purchase as determined by City and Owner and set forth on the first page of this Equity Sharing Agreement;
(4) A copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on Owner’s purchase of the Property; (5) If Owner has made capital improvements to the Property that Owner wishes to have recognized as Eligible Capital Improvements for purposes of determining the amount payable to City under Section 8, Owner shall provide a description of the improvements, the date the improvements were made, a copy of City’s prior written approval of the improvements (if obtained), evidence of the cost of the improvements, and an appraisal documenting the value added to the Property by the Eligible Capital Improvements. If Owner did not obtain City's prior written approval before making the Capital Improvements, Owner may nevertheless identify such capital improvements in the Notice of Intent to Transfer and request that City recognize them as Eligible Capital Improvements. City shall recognize the improvements as Eligible Capital Improvements if City reasonably determines, based upon documentation provided by Owner, that the improvements satisfy the requirements of Section 8.b. The value of any improvements recognized by City as Eligible Capital Improvements shall be determined pursuant to Section 8.b;
(6) The date the Property will be placed on the market; (7) The name and phone number of the person to contact to schedule inspection of the Property by City; and
(8) The proposed sale price and other material terms upon which Owner proposes to sell the Property.
b. Fair Market Value Appraisal. Prior to the Transfer of the Property, the Fair Market Value of the Property at the time of Transfer shall be determined by a certified MAI or other qualified real estate appraiser approved in advance by City. If possible, the appraisal shall be based upon the sales prices of comparable properties sold in the market area during the preceding three month period. The cost of the appraisal shall be paid by Owner, unless the appraisal is obtained from a new purchaser. Further, in the event that Owner has made Eligible Capital Improvements, the value of which Owner wishes to retain, the appraisal shall determine the value of such Eligible Capital Improvements in accordance with Section 8.b below. Nothing in this section precludes 112
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Owner and City from establishing the Fair Market Value of the Property at the time of Transfer by mutual agreement in lieu of an appraisal pursuant to this section. c. City’s First Option. Upon receipt of a complete Owner’s Notice of Intent to Transfer, City shall have the first right to purchase the Property. The purchase price payable by City shall equal the Fair Market Value of the Property determined pursuant to subsection (b), less the City Subsidy and City Shared Appreciation that would be payable to City under Section 8 if the Property were Transferred to a person other than City (the “Option Purchase Price”). Except for the determination and payment of the Option Purchase Price as provided herein, City shall purchase the Property on the material terms specified in the Owner’s Notice of Intent to Transfer, to the extent those terms are applicable to City’s purchase and are not inconsistent with this Equity Sharing Agreement. City shall have such right and option (“First Option”) for 45 days after City receives a complete Owner’s Notice of Intent to Transfer. If not timely exercised, the First Option shall terminate. If City exercises the First Option, the purchase shall close through escrow within 60 days after City’s exercise, or on such other date as City and Owner may agree in writing. Upon the closing of City’s purchase pursuant to the First Option, the City Subsidy and City Shared Appreciation shall be credited against the Fair Market Value of the Property in determining the Option Purchase Price and shall be deemed paid and satisfied through the credit. The parties intend that the Option Purchase Price permit Owner to retain the value of any Eligible Capital Improvements, Owner’s downpayment, and Owner’s proportionate share of appreciation, while permitting City to recapture its initial subsidy and proportionate share of appreciation, in accordance with Government Code section 65915(c)(2)(C).
7. SALE OF PROPERTY BY OWNER
a. Subject to Section 6.c above, Owner may Transfer the Property to a person of Owner’s choosing at an unrestricted price (supported by an MAI or other qualified appraisal), and City shall release the Equity Sharing Agreement and cause the City Deed of Trust to be reconveyed from the Property, provided that Owner pays the full amount owed under the City Note to the City pursuant to Section 8 below. Owner shall provide City with the following documentation associated with such a Transfer:
(1) The name and address of the purchaser;
(2) The final sales contract and all other related documents which shall set forth all the terms of the sale of the Property, including a HUD-1 Settlement Statement or equivalent document. Said documents shall include at least the following terms: (a) the sales price; and (b) the price to be paid by the purchaser for Owner’s personal property, if any, for the services of Owner, if any, and any credits, allowances or other consideration, if any. (3) A written certification, from Owner and the purchaser in a form acceptable to City that the sale shall be closed in accordance with the terms of the sales contract and other documents submitted to and approved by City. The certification shall also provide that the purchaser or any other party has not paid and will not pay to Owner, and Owner has not received and will not 113
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receive from the purchaser or any other party, money or other consideration, including personal property, in addition to what is set forth in the sales contract and documents submitted to City. The written certification shall also include a provision that in the event a Transfer is made in violation of the terms of this Equity Sharing Agreement or false or misleading statements are made in any documents or certification submitted to City, City shall have the right to foreclose on the Property or file an action at law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred by Owner and the purchaser for the return of any moneys paid or received in violation of this Equity Sharing Agreement or for any costs and legal expenses, shall be borne by Owner and/or the purchaser and they shall hold City and its designee harmless and reimburse their expenses, legal fees and costs for any action they reasonably take in good faith in enforcing the terms of this Equity Sharing Agreement. (4) A copy of the MAI or other qualified appraisal prepared for the Property in accordance with Section 6.b.
(5) Upon the close of the proposed sale, a copy of the final sales contract, HUD1 Settlement Statement or equivalent document, escrow instructions, and any other documents which City may reasonably request.
8. PAYMENT TO CITY OF CITY SUBSIDY AND SHARED APPRECIATION a. Upon a Transfer of the Property to a person other than City pursuant to Section 7, Owner shall pay to City the City Subsidy plus the City Shared Appreciation. The “City Subsidy,” as defined in Recital F, is equal to the amount by which the Original Fair Market Value of the Property exceeds the Original Purchase Price of the Property. For purposes of this Section 8, “Adjusted Fair Market Value” means the Fair Market Value of the Property at the time of Transfer, less the value of any Eligible Capital Improvements determined pursuant to Section 8.b. “City Shared Appreciation” shall be calculated pursuant to the City Note but by way of information the following sets forth the method for determining the City Shared Appreciation. If there is any inconsistency between the City Note and this Equity Sharing Agreement with respect to the determination of City Shared Appreciation, the City Note shall control. City Shared Appreciation shall be calculated by dividing the City Subsidy by the Original Fair Market Value of the Property. The resulting percentage, rounded to the closest one-tenth of a percentage point, shall be multiplied by the amount, if any, by which the Adjusted Fair Market Value exceeds the Original Fair Market Value, and the resulting product shall equal the City Shared Appreciation.
Notwithstanding the foregoing, if the Adjusted Fair Market Value is lower than the Original Fair Market Value, the amount payable to City shall instead be determined in accordance with subsection (d).
b. The value of any Eligible Capital Improvements shall be the value of any substantial structural or permanent fixed improvements that Owner has made to the Property after acquiring the Property, provided that such improvements are: (i) made or installed by Owner in conformity with applicable building codes at the time of installation; and (ii) approved or recognized by City in writing, either before construction or pursuant to Section 6.a.5. The value of 114
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Eligible Capital Improvements shall be limited to the appraised increase in the value of the Property attributable to the improvements, as determined by the appraisal performed pursuant to
6.b, taking into account any depreciation in value since the installation, and shall not be based on the actual cost of constructing the improvements.
c. The City Subsidy and the City Shared Appreciation shall be a debt of Owner to City, evidenced by this Equity Sharing Agreement and the City Note, and secured by the City Deed of Trust. Owner acknowledges that City shall have no obligation to release this Equity Sharing Agreement or reconvey the City Deed of Trust until the City Subsidy and the City Shared Appreciation are paid to City. City shall utilize the repayment of the City Subsidy and the City Shared Appreciation within five years of receipt of such funds for any of the purposes described in subdivision (e) of section 33334.2 of the Health and Safety Code that promote homeownership. d. Notwithstanding anything to the contrary in this Section 8, if the Adjusted Fair Market Value is lower than the Original Fair Market Value, the Adjusted Fair Market Value shall be used as the initial market value for purposes of determining the City Subsidy, and the amounts payable to City shall otherwise be calculated in accordance with Government Code section 65915(c)(2)(C), as amended from time to time. In no event shall the amount payable to City under this subsection be less than zero.
9. DEFAULTS
a. The following events shall constitute a “Default” by Owner under this Equity Sharing Agreement:
(1) City determines that Owner has made a misrepresentation to obtain the benefits of purchase of the Property or in connection with its obligations under this Equity Sharing Agreement;
(2) Owner fails to occupy the Property as required pursuant to Section 3 above; (3) Owner makes a Transfer in violation of this Equity Sharing Agreement; (4) Owner otherwise fails to comply with the requirements of this Equity Sharing Agreement, the City Note, or the City Deed of Trust and such violation is not corrected to the satisfaction of City within 10 days after the date of written notice by City to Owner of such violation; (5) A lien is recorded against the Property other than the First Mortgage Deed of Trust, the City Deed of Trust, a lien in favor of City, a lien for nondelinquent taxes or assessments, or any other lien approved by City in writing;
(6) Owner places a mortgage on the Property in violation of Section 17 below; (7) Owner declares a bankruptcy or makes an assignment of assets for the benefit of creditors.
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b. Upon a declaration of Default by City under this Equity Sharing Agreement, City may pursue any or all of the following remedies:
(1) Subject to all applicable notice and cure requirements under the City Note and the City Deed of Trust, declare the City Subsidy and City Shared Appreciation immediately due and payable without further demand, declare a default under the City Note, and invoke the power of sale under the City Deed of Trust;
(2) Apply to a court of competent jurisdiction for any such relief at law or in equity as may be appropriate including, but not limited to, the collection of damages from Owner, which damages shall include City’s costs associated with administering City’s affordable housing program and the cost to City of providing sufficient assistance to a Very Low Income Household to acquire a market rate home at an affordable housing cost as that term is defined in Health and Safety Code section 50052.5; and
(3) Declare a Default under the City Note and City Deed of Trust and pursue all City remedies thereunder.
10. NOTICE OF DEFAULT AND FORECLOSURE
a. City may record a request for copies of any notice of default and notice of sale under any mortgage encumbering the Property. City may declare a Default under this Equity Sharing Agreement upon receipt of any notice given to City pursuant to Civil Code section 2924b, and may exercise its rights as provided in Section 9.
b. In the event of default and foreclosure, City shall have the same right as Owner to cure defaults and redeem the Property prior to the foreclosure sale. Nothing herein shall be construed as creating any obligation of City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage.
c. Whether or not City has recorded a request pursuant to subsection (a), City may exercise its rights under this Section upon City’s actual receipt of written notice of the foreclosure proceedings from Owner, the First Lender, or any other source. Nothing in this Section shall limit City's right to bid at, acquire, or otherwise protect its interest in the Property through any foreclosure sale or any other remedy available under applicable law.
11. NON-LIABILITY OF CITY
a. Non-liability for Negligence, Loss, or Damage. Owner acknowledges, understands and agrees that the relationship between Owner and City is solely that of an owner and an administrator of a City affordable housing program, and that City does not undertake or assume any responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or inform Owner of the quality, adequacy or suitability of the Property or any other matter. City owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building or 116
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construction or any condition of the Property and Owner agrees that neither Owner, or Owner’s heirs, successors or assigns shall ever claim, have or assert any right or action against City for any loss, damage or other matter arising out of or resulting from any condition of the Property and will hold City harmless from any liability, loss or damage for these things. b. Indemnity. Owner agrees to defend, indemnify, and hold City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorney’s fees that City may incur as a direct or indirect consequence of: (1) Owner’s default, performance, or failure to perform any obligations as and when required by this Equity Sharing Agreement or the City Deed of Trust; or (2) the failure at any time of any of Owner’s representations to City to be true and correct.
12. RESTRICTIONS ON FORECLOSURE PROCEEDS
Subject to the rights of senior lienholders, any proceeds arising from a foreclosure, deed in lieu of foreclosure, or other involuntary Transfer that would otherwise be payable to Owner shall first be applied to the amounts owed to City under the City Note, and only the remaining balance, if any, shall be payable to Owner.
13. RESTRICTION ON INSURANCE PROCEEDS
If the Property is damaged or destroyed and Owner elects not to rebuild or repair the Property, Owner shall pay City the portion of any insurance proceeds received by Owner for such destruction or damage which is equal to the City Subsidy plus the City Shared Appreciation calculated pursuant to Section 8 above, with the total amount of insurance proceeds serving as the Fair Market Value upon Transfer of the Property, provided that in no event shall City receive insurance proceeds in an amount that results in the amount of insurance proceeds available to Owner being less than the Original Purchase Price for the Property as set forth above.
14. TERM OF AGREEMENT
All the provisions of this Equity Sharing Agreement, including the benefits and burdens, run with the Property and this Equity Sharing Agreement shall bind, and the benefit hereof shall inure to, Owner, Owner’s heirs, legal representatives, executors, successors in interest and assigns, and to City and its successors, until the earliest to occur of: (i) the Transfer of the Property and payment to City of the City Subsidy and the City Shared Appreciation in accordance with this Agreement and the City Note, (ii) the closing of City’s purchase of the Property pursuant to City’s exercise of the First Option under Section 6.c, or (iii) termination under Section 16 following foreclosure or deed in lieu.
15. SUPERIORITY OF AGREEMENT
Owner covenants that Owner has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereof, and that, in any event, except as otherwise provided herein, this Equity Sharing Agreement is controlling as to the rights and obligations between and among Owner and City and their respective successors. 117
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16. SUBORDINATION
a. Notwithstanding any provision herein, this Equity Sharing Agreement shall not diminish or affect the rights of the First Lender under the First Mortgage Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the Property in compliance with Section 17 below.
b. Notwithstanding any other provision hereof, the provisions of this Equity Sharing Agreement and the City Deed of Trust shall be subordinate to the lien of the First Mortgage Deed of Trust and shall not impair the rights of the First Lender, or such First Lender’s assignees or successors in interest to exercise their remedies under the First Mortgage Deed of Trust in the event of default under the First Mortgage Deed of Trust by Owner. Such remedies under the First Mortgage Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, this Equity Sharing Agreement and the City Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Mortgage Deed of Trust acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, this Equity Sharing Agreement and the City Deed of Trust shall automatically terminate upon such acquisition of title only if: (i) City has been given written notice of the default under the First Mortgage Deed of Trust and a 60-day opportunity to cure such default; and (ii) City has not cured the default within such 60-day period or commenced to cure the default and provided a firm commitment, in form and substance reasonably acceptable to the First Lender, to complete such cure.
17. REFINANCE OF MORTGAGE LOAN
The outstanding principal on the City Note shall not be due upon prepayment and refinancing of the First Mortgage Loan, and this Agreement and the City Deed of Trust shall be subordinated to the refinanced First Mortgage Loan, provided that following such refinance, the principal amount of the refinanced First Mortgage Loan will not exceed the original principal amount of the First Mortgage Loan unless some other amount is approved by City in writing, in City’s sole and absolute discretion. Mortgage loans or equity lines of credit junior in lien priority to the City Deed of Trust are not permitted. City and Owner agree that the requirements of this Section 17 are necessary to ensure the continued affordability of the Property to Owner and to minimize the risk of loss of the Property by Owner through default and foreclosure of mortgage loans. Owner further acknowledges that violation of the provisions of this Section 17 shall constitute a Default under this Equity Sharing Agreement.
18. NONDISCRIMINATION
Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Owner or any person claiming under or through Owner establish or permit any such practice or practices of 118
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discrimination or segregation with reference to the use, occupancy, or transfer of the Property. The foregoing covenant shall run with the land.
19. INVALID PROVISIONS
If any one or more of the provisions contained in this Equity Sharing Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Equity Sharing Agreement, and this Equity Sharing Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
20. CONTROLLING LAW
The terms of this Equity Sharing Agreement shall be interpreted under the laws of the State of California. The venue for any legal action pertaining to this Agreement shall be Orange County, California.
21. NO WAIVER
No delay or omission in the exercise of any right or remedy of City upon any default by Owner shall impair such right or remedy or be construed as a waiver. City’s failure to insist in any one or more instance upon the strict observance of the terms of this Equity Sharing Agreement shall not be considered a waiver of City’s right thereafter to enforce the provisions of the Equity Sharing Agreement. City shall not waive its rights to enforce any provision of this Equity Sharing Agreement unless it does so in writing, signed by an authorized agent of City.
22. NOTICES
a. All notices required herein shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt and shall be deemed to be effective as of the date received or the date delivery was refused as indicated on the return receipt as follows:
To Owner:
_____________________
_____________________
_____________________
At the address of the Property:
_________________________
_________________________
Aliso Viejo, CA 9____
To City:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: [insert]
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With Copy to:
_____________________
_____________________
_____________________
b. The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section.
23. INTERPRETATION OF AGREEMENT
The terms of this Equity Sharing Agreement shall be interpreted so as to avoid speculation on the Property and to ensure to the extent possible that its sales price and mortgage payment remain affordable to Very Low Income Households.
24. EXHIBITS
Any exhibits referred to in this Equity Sharing Agreement are hereby incorporated herein by this reference.
25. ATTORNEYS FEES
If any action is filed in a court of competent jurisdiction related to this Equity Sharing Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party.
26. TAX RETURNS
Owner shall execute such documents as are necessary to provide City with access to Owner’s filed federal income tax returns.
27. ACKNOWLEDGEMENT OF TERMS
Owner hereby acknowledges that, prior to Owner’s execution of this Equity Sharing Agreement, City provided Owner with an in-person, informational session during which City explained, in plain and simple language, the resale restrictions and other material provisions of this Equity Sharing Agreement.
28. ENTIRE AGREEMENT
This Equity Sharing Agreement (along with the City Note and City Deed of Trust) sets forth the entire understanding and agreement of City and Owner and any amendment, alteration or interpretation of this Equity Sharing Agreement must be in writing signed by both City and Owner.
IN WITNESS WHEREOF, the parties have executed this Equity Sharing Agreement on or as of the date first written above.
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CITY: BUYER
[insert], City Manager
City of Aliso Viejo
_________________
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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 (Seal)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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 (Seal)
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EXHIBIT A-1
Legal Description of Property
[insert]
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EXHIBIT B-1
City Note
[Attached behind this cover page]
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CITY OF ALISO VIEJO PROMISSORY NOTE
Secured by Deed of Trust
$________________________ , 202_
And City Shared Appreciation
FOR VALUE RECEIVED, the undersigned [name(s)] (“Borrower”) promises to pay to the City of Aliso Viejo, a California municipal corporation (“City”), at 12 Journey, Suite 100, Aliso Viejo, CA 92656-5335, or such other place as City may designate in writing: (i) a principal amount of $[amount] (“City Subsidy”), which amount constitutes a subsidy provided by City to Borrower pursuant to that certain Owner Occupancy and Equity Sharing Agreement entered into by and between Borrower and City dated [date] (“Equity Sharing Agreement”) for purchase of the Property located at [address] in the City of Aliso Viejo, California (“Property”); and (ii) the City Shared Appreciation, as defined herein.
1. Purpose of Loan. Borrower is purchasing the Property, which is being sold by BRANDYWINE ACQUISITION GROUP, LLC, a California limited liability company (“Developer”), pursuant to that certain Density Bonus Housing Agreement entered into by and between City and Developer to ensure that a certain number of the housing units being constructed by Developer are sold at an affordable housing cost to Very Low Income Households. The purchase price of the Property has been set substantially below the market value so that the Property will be affordable for purchase by Very Low Income Households. Because the purchase price has been set below the market value, Borrower is required and has agreed to enter into the Equity Sharing Agreement with City, which requires Borrower to pay the City Subsidy and the City Shared Appreciation to City. This Note evidences the obligation of Borrower to pay the City Subsidy and the City Shared Appreciation to City pursuant to the Equity Sharing Agreement.
2. Definitions. The terms set forth in this section shall have the following meanings in this Note.
a. “Borrower” has the meaning set forth in the introductory paragraph on page 1 of this Note.
b. “City” means the City of Aliso Viejo, California.
c. “City Deed of Trust” means the deed of trust and security agreement that secures the Equity Sharing Agreement and this Note on the Property. d. “City Subsidy” has the meaning provided in the introductory paragraph on page 1 of this Note.
e. “City Shared Appreciation” means and shall be calculated by dividing the City Subsidy by the Original Fair Market Value of the Property. The resulting percentage, rounded to the closest one-tenth of a percentage point, shall be multiplied by the 126
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amount, if any, by which the Adjusted Fair Market Value exceeds the Original Fair Market Value, and the resulting product shall equal the City Shared Appreciation. “Adjusted Fair Market Value” has the meaning provided in Section 8.a of the Equity Sharing Agreement. City Shared Appreciation shall not be less than zero.
f. “Developer” has the meaning provided in Section 1 of this Note. g. “Eligible Capital Improvements” has the meaning provided in Section 8.b of the Equity Sharing Agreement.
h. “Equity Sharing Agreement” has the meaning provided in the introductory paragraph on page 1 of this Note.
i. “Fair Market Value at the time of Transfer” has the meaning provided in Section 6.b of the Equity Sharing Agreement. j. “First Mortgage Loan” has the meaning provided in Recital I of the Equity Sharing Agreement.
k. “First Option” has the meaning provided in Section 6.c of the Equity Sharing Agreement.
l. “Original Fair Market Value” has the meaning set forth in Recital F of the Equity Sharing Agreement.
m. “Original Purchase Price” has the meaning set forth in Recital F of the Equity Sharing Agreement.
n. “Note” means this promissory note.
o. “Property” means the dwelling, and the real property on which the dwelling is located, which secure the City Deed of Trust executed in connection with this Note.
The Property’s location is provided in the introductory paragraph on page 1 of this Note. p. “Transfer” has the meaning provided in Section 5 of the Equity Sharing Agreement.
3. Term. The term of this Note commences on the date of this Note and expires upon the earliest to occur of: (i) the date of Transfer of the Property and the payment to City of the City Subsidy and the City Shared Appreciation; (ii) the closing of City's purchase of the Property pursuant to City's exercise of the First Option in accordance with Section 6.c of the Equity Sharing Agreement; or (iii) termination of the Equity Sharing Agreement and City Deed of Trust pursuant to Section 16 of the Equity Sharing Agreement following foreclosure or acceptance of a deed or assignment in lieu of foreclosure by the First Lender. Notwithstanding the foregoing, termination of this Note following foreclosure or a deed or assignment in lieu of foreclosure shall not affect City’s rights to receive any surplus or other proceeds otherwise payable to Borrower, subject to 127
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the rights of senior lienholders, as provided in Section 12 of the Equity Sharing Agreement.
Nothing herein shall release Borrower from liability arising from fraud, intentional misrepresentation, waste, or a Transfer made in violation of the Equity Sharing Agreement, except to the extent prohibited by applicable law.
4. Payment.
a. Subject to Subsections 4.b and 4.c below, the total amount of the City Subsidy and the City Shared Appreciation shall immediately become due and payable upon the occurrence of any of the following: (i) an uncured Borrower default (after the applicable notice and cure periods) under this Note, the Equity Sharing Agreement, the City Deed of Trust, or the First Mortgage Loan; (ii) upon a Transfer of the Property as set forth in Section 8 of the Equity Sharing Agreement; or (iii) Borrower ceases to occupy the Property in violation of Section 3 of the Equity Sharing Agreement. For purposes of clauses (i) and (iii), if no Transfer has occurred, the Adjusted Fair Market Value used to calculate City Shared Appreciation shall be determined in accordance with Section 8(a) of the Equity Sharing Agreement, using the Fair Market Value of the Property as of the date of acceleration, as determined by an appraiser selected or approved by City in accordance with Section 6(b) of the Equity Sharing Agreement, less the value of any Eligible Capital Improvements determined pursuant to Section 8(b) of the Equity Sharing Agreement. b. Upon a Transfer of the Property, if the Adjusted Fair Market Value is lower than the Original Fair Market Value, the amounts payable under this Note shall be determined in accordance with Section 8(d) of the Equity Sharing Agreement. c. If City’s purchase of the Property pursuant to the First Option closes, this Note shall immediately terminate and Borrower shall not be liable for payment of the City Subsidy or the City Shared Appreciation.
5. Security. This Note is secured by the City Deed of Trust, which also secures the Equity Sharing Agreement.
6. No Assumption of Note by Subsequent Buyers; Acceleration. Borrower acknowledges that this Note is given in connection with the purchase of the Property as part of a City program to assist in the purchase of homes by Very Low Income Households. Consequently, this Note is not automatically assumable, but is subject to section 711.5 of the California Civil Code, which allows City to accelerate all amounts due under this Note if any subsequent sale or transfer of the Property of any kind does not comply with the provisions of the Equity Sharing Agreement.
7. Refinance of First Mortgage Loan. The outstanding principal on this Note shall not be due upon prepayment and refinance of the First Mortgage Loan, and the City Deed of Trust and Equity Sharing Agreement shall be subordinated, provided that such refinancing meets the requirements of Section 17 of the Equity Sharing Agreement.
8. Default. Borrower shall be in default under this Note if Borrower is in default under any mortgage loan on the Property (including the First Mortgage Loan) following the expiration 128
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of applicable cure periods, or if, after the notice and cure period provided by City to Borrower pursuant to the notice and cure provisions of the City Deed of Trust, Borrower (i) fails to pay any money when due under this Note; (ii) breaches any representation or covenant made in this Note or the Equity Sharing Agreement in any material respect; or (iii) breaches any provision of the City Deed of Trust or the Equity Sharing Agreement.
9. Acceleration. Subject to Section 4 and following the expiration of all applicable notice and cure periods, upon the occurrence of a default under this Note, the Equity Sharing Agreement, the City Deed of Trust, or the First Mortgage Loan, City shall have the right to declare the City Subsidy and the City Shared Appreciation immediately due and payable.
10. Non-liability for Negligence, Loss, or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and City is solely that of borrower and lender, and that City neither undertakes nor assumes any responsibility for or duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the Property or any other matter. City owes no duty of care to protect Borrower against negligent, faulty, inadequate or defective building or construction or any condition of the Property and Borrower agrees that neither Borrower, or Borrower’s heirs, successors or assigns shall ever claim, have or assert any right or action against City for any loss, damage or other matter arising out of or resulting from any condition of the Property and will hold City harmless from any liability, loss or damage for these things.
11. Indemnity. Borrower agrees to defend, indemnify, and hold City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorney’s fees that City may incur as a direct or indirect consequence of:
a. Borrower’s default or failure to perform any obligations as and when required by this Note, the City Deed of Trust, and the Equity Sharing Agreement; or b. The failure at any time of any of Borrower’s representations or warranties to be true and correct.
12. No Waiver by City. Failure by City to pursue its legal and equitable remedies upon Borrower’s default shall not constitute a waiver of City’s right to declare a default and exercise all of its rights under this Note, the City Deed of Trust and the Equity Sharing Agreement. Failure to declare amounts due shall not constitute a waiver on the part of City of the right to declare them due in the event of any subsequent Transfer. Nor shall acceptance by City of any payment provided for herein constitute a waiver of City’s right to require prompt payment of any remaining principal owed. A waiver of any term of the Note must be made in writing, signed by an authorized agent of City, and shall be limited to the express written terms of such waiver.
13. Interest. Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest which would exceed the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate shall automatically 129
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be deducted from the principal balance owing on this Note, so that in no event shall Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate.
14. Attorney’s Fees and Costs. Borrower agrees that if any amounts due under this Note are not paid when due, to pay in addition to the City Subsidy and City Shared Appreciation, all costs and expenses of collection and reasonable attorneys’ fees paid or incurred by City in connection with the collection or enforcement of this Note, whether or not suit is filed.
15. Joint and Several Obligations. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns.
16. No Offset. Borrower hereby waives any rights of offset it now has or may hereafter have against City, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Note.
17. Borrower’s Waiver. Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, notice of dishonor and notice of nonpayment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorneys’ fees.
18. Notices. All notices required in this Note shall be sent by certified mail, return receipt requested, or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows:
To Borrower:
___________________
___________________
___________________
At the address of the Property:
__________________
__________________
Aliso Viejo, CA ________
To City:
City of Aliso Viejo
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12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: City Manager
The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section.
19. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California.
20. Assignment by City. City may assign its right to receive the proceeds under this Note to any person and upon notice to Borrower by City all payments shall be made to the assignee.
21. Severability. If any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
22. Entire Agreement. This Note (along with the Equity Sharing Agreement and the City Deed of Trust) sets forth the entire understanding and agreement of City and Borrower and any amendment, alteration or interpretation of this Note must be in writing signed by both City and Borrower.
BORROWER:
______________
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EXHIBIT C-1
City Deed of Trust
[Attached behind this cover page]
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RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656-5335
Attn: [ ]
Free Recording pursuant to
Government Code 6103 & 27383
DEED OF TRUST
AND SECURITY AGREEMENT
(DENSITY BONUS UNIT)
Note to Borrower:
This Deed of Trust Contains
Provisions Restricting Assumptions
THIS DEED OF TRUST AND SECURITY AGREEMENT (“Deed of Trust”) is made this [date], among the trustor, [name(s)] (“Borrower”), whose address is [address], Aliso Viejo, California, [name] Title Company (“Trustee”) and the City of Aliso Viejo, California (“City”) as Beneficiary.
Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Aliso Viejo, County of Orange, State of California, described in the attached Exhibit “1” and more commonly known as: [address], Aliso Viejo, California [zip code] (“Property”).
TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust; and TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same as, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the “Security;” 133
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To have and to hold the Security together with appurtenances to Trustee, its successors and assigns forever;
TO SECURE to City the performance of the covenants and agreements of Borrower contained in the Owner Occupancy and Equity Sharing Agreement executed by and between Borrower and City (“Equity Sharing Agreement”);
TO SECURE to City the repayment of the sums evidenced by a promissory note executed by Borrower in favor of City dated [insert] (“Note”), which note provides for repayment of a City Subsidy in the amount of $[insert], and City’s share of appreciation in the value of the Property, based on City’s proportionate assistance to Borrower, as more particularly described in the Note and the Equity Sharing Agreement; and
TO SECURE the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Borrower herein contained.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Borrower’s Estate. Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by: (1) a deed of trust executed by Borrower in connection with a loan made to Borrower by [lender name] (“First Lender”), dated [date], executed by Borrower in favor of First Lender, securing a first mortgage loan (“First Mortgage Loan”) to assist in the purchase of the Property (“First Mortgage Deed of Trust”); (2) the Equity Sharing Agreement; and (3) any other deeds of trust or encumbrances approved by City. Borrower agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring City’s interest in the Security. As used in this Deed of Trust, the term “First Lender” shall include all successors and assigns of First Lender.
2. Repayment. Borrower will promptly repay, when due, all amounts due under the Note. The Note contains the following provisions concerning repayment under certain conditions:
Borrower acknowledges that this Note is given in connection with the purchase of the Property as part of a City program to assist in the purchase of homes by Very Low Income Households. Consequently, this Note is not automatically assumable, but is subject to section 711.5 of the California Civil Code, which allows the City to accelerate all amounts due under this Note if any subsequent sale or transfer of the Property of any kind does not comply with the provisions of the Equity Sharing Agreement.
3. Equity Sharing Agreement. Borrower will observe and perform all of the covenants and agreements of the Equity Sharing Agreement.
4. Charges; Liens. Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by 134
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making any payment, when due, directly to the payee thereof. Borrower will promptly furnish to City all notices of amounts due under this paragraph, and in the event Borrower makes payment directly, Borrower will promptly discharge any lien which has priority over this Deed of Trust; provided, that Borrower will not be required to discharge the lien of the First Mortgage Deed of Trust (securing the First Mortgage Loan) or any other lien described in this paragraph so long as Borrower will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to City, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof.
5. Hazard Insurance.
NOTICE REQUIRED BY CALIFORNIA CIVIL CODE SECTION 2955.5:
NO LENDER SHALL REQUIRE A BORROWER, AS A CONDITION OF
RECEIVING OR MAINTAINING A LOAN SECURED BY REAL
PROPERTY, TO PROVIDE HAZARD INSURANCE COVERAGE
AGAINST RISKS TO THE IMPROVEMENTS ON THAT REAL
PROPERTY IN AN AMOUNT EXCEEDING THE REPLACEMENT
VALUE OF THE IMPROVEMENTS ON THE PROPERTY.
BORROWER ACKNOWLEDGES THAT THE FOREGOING
DISCLOSURE WAS PROVIDED IN WRITING BEFORE BORROWER
EXECUTED THE NOTE, THIS DEED OF TRUST, OR ANY OTHER
SECURITY DOCUMENT RELATING TO THE CITY LOAN.
Borrower will keep the improvements on the Security insured under a standard fire and extended coverage insurance policy in at least such amounts and for such periods as City may reasonably require; provided, however, that City shall not require hazard insurance coverage in an amount exceeding the replacement value of the improvements on the Security. Subject to that limitation, the required coverage shall not be less than the amount necessary to prevent Borrower from becoming a co-insurer under the terms of the policy.
The insurance carrier providing this insurance shall be licensed to do business in the State of California and be chosen by Borrower subject to approval by City; provided, that such approval will not be withheld if the insurer is also approved by the First Lender.
All insurance policies and renewals thereof will be in a form acceptable to City and will include a standard mortgagee clause with standard lender’s endorsement in favor of the holder of the First Mortgage Loan and City as their interests may appear and in a form acceptable to City.
City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Borrower shall promptly furnish to City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Borrower will give prompt notice to the insurance carrier and City or its designated agent. City, or its designated agent, may make proof of loss if not made promptly by Borrower. 135
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City shall receive 30 days advance notice of cancellation of any insurance policies required under this section.
Unless City and Borrower otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the Security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the Security of this Deed of Trust would be impaired, the insurance proceeds will be used to repay the loan under this Deed of Trust, with the excess, if any, paid to Borrower. If the Security is abandoned by Borrower, or if Borrower fails to respond to City, or its designated agent, within 30 days from the date notice is mailed by either of them to Borrower that the insurance carrier offers to settle a claim for insurance benefits, City, or its designated agent, is authorized to collect and apply the insurance proceeds at City’s option either to restoration or repair of the Security or to repay the amounts due under the Note.
If the Security is acquired by City, all right, title and interest of Borrower in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of First Lender.
6. Preservation and Maintenance of Security. Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security.
7. Protection of City’s Security. If Borrower fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects City’s interest in the Security, including, but not limited to, default under the First Mortgage Deed of Trust securing the First Mortgage Loan, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then City, at City’s option, upon notice to Borrower, may make such appearances, disburse such sums and take such action as it determines necessary to protect City’s interest, including but not limited to, disbursement of reasonable attorneys’ fees and entry upon the Security to make repairs.
Any amounts disbursed by City pursuant to this paragraph shall become indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and City agree to other terms of payment, such amount shall be payable upon notice from City to Borrower requesting payment thereof and shall bear interest from the date of disbursement at the maximum rate permitted by applicable law. Nothing contained in this paragraph will require City to incur any expense or take any action hereunder.
8. Inspection. City may make or cause to be made reasonable entries upon and inspections of the Security; provided that City will give Borrower reasonable notice of inspection.
9. Forbearance by City Not a Waiver. Any forbearance by City in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by City will not be a waiver of City’s right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 136
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10. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively.
11. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of City and Borrower subject to the provisions of this Deed of Trust.
12. Joint and Several Liability. All covenants and agreements of Borrower shall be joint and several.
13. Notice. Except for any notice required under applicable law to be given in another manner: (a) any notice to Borrower provided for in this Deed of Trust will be given by certified mail, addressed to Borrower at the address shown in the first paragraph of this Deed of Trust or such other address as Borrower may designate by notice to City as provided herein; and (b) any notice to City will be given by express delivery, return receipt requested, to City at 12 Journey, Suite 100, Aliso Viejo, CA, 92656-5335, Attn: City Manager, or to such other address as City may designate by notice to Borrower as provided above. Notice shall be effective as of the date received by the recipient as shown on the return receipt.
14. Governing Law. This Deed of Trust shall be governed by the laws of the State of California.
15. Severability. If any provision or clause of this Deed of Trust, the Note, or the Equity Sharing Agreement conflict with applicable law, such conflicts will not affect other provisions of this Deed of Trust, the Note, or the Equity Sharing Agreement which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust, the Note, and the Equity Sharing Agreement are declared to be severable.
16. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof.
17. Acceleration; Remedies. Upon Borrower’s breach of any covenant or agreement of Borrower in this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, City, prior to acceleration, will mail by express delivery, return receipt requested notice to Borrower specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date the notice is received by Borrower as shown on the return receipt, by which such breach is to be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Borrower of Borrower’s right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of Borrower to acceleration and sale. If the breach is not cured on or before the date specified in the notice, City, at City’s option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person 137
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or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Security, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, City shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Borrower acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law.
City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney’s fees and costs.
18. Borrower’s Right to Reinstate. Notwithstanding City’s acceleration of the sums secured by this Deed of Trust, Borrower will have the right to have any proceedings begun by City to enforce this Deed of Trust discontinued at any time prior to five business days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays City all sums that would then be due under the Note and this Deed of Trust had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower pays all reasonable expenses incurred by City and Trustee in enforcing the covenants and agreements of Borrower contained in this Deed of Trust, and in enforcing City’s and Trustee’s remedies, including, but not limited to, reasonable attorney’s fees; and (d) Borrower takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City’s interest in the Security and Borrower’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
19. Reconveyance. Upon payment or forgiveness of all sums secured by this Deed of Trust, City will request Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to Trustee. Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any.
20. Substitute Trustee. City, at City’s option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 138
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21. Superiority of First Lender Documents. Notwithstanding any provision herein, this Deed of Trust shall not diminish or affect the rights of First Lender under the First Mortgage Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the Security in compliance with the requirements of Section 17 of the Equity Sharing Agreement.
Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Mortgage Deed of Trust and shall not impair the rights of the First Lender, or such lender’s assignee or successor in interest, to exercise its remedies under its First Mortgage Deed of Trust in the event of default under its First Mortgage Deed of Trust by Borrower. Such remedies under the First Mortgage Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Mortgage Deed of Trust acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, this Deed of Trust shall automatically terminate upon such acquisition of title, only if: (i) City has been given written notice of the default under the First Mortgage Deed of Trust and a 60-day opportunity to cure such default; and (ii) City has not cured the default within such 60-day period or commenced to cure the default and provided a firm commitment, in a form and substance reasonably acceptable to First Lender, to complete such cure.
22. Request for Notice. Pursuant to Civil Code section 2924b, City requests that a copy of any notice of default and notice of sale under any deed of trust or mortgage senior to this Deed of Trust be mailed to City at the address set forth in Section 13 of this Deed of Trust.
IN WITNESS WHEREOF, Borrower has executed this Deed of Trust as of the date first written above.
BORROWER:
_________________
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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 (Seal)
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EXHIBIT 1
Legal Description of Property
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EXHIBIT “E”
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION OF
DEVELOPMENT AGREEMENT BETWEEN CITY OF ALISO VIEJO AND ________, WHICH WILL DO BUSINESS IN CALIFORNIA AS _________________.,
THIS ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT BETWEEN CITY OF ALISO VIEJO AND ___________ WHICH WILL DO BUSINESS IN CALIFORNIA AS ________.(“Assignment”) is made as of the ___ day of __________, 20___ (“Effective Date”), by and among [ENTITY] (“[ENTITY]”) a [LEGAL DESIGNATION] and _________________________________________________ (“Assignee”) with reference to the following facts:
RECITALS
A. [ENTITY] has entered into that certain Development Agreement, dated ______, 2026, by and between the City of Aliso Viejo (“City”), on the one hand, and [ENTITY], on the other hand (“Agreement”) for certain real property consisting of approximately 4.4 acres of land located in the City, more particularly described in Exhibit “A” (“Property”).
B. [ENTITY] desires to assign and delegate, and Assignee desires to accept and assume, all of [ENTITY’S] rights and obligations under the Agreement in accordance with the terms and conditions set forth herein.
C. City has approved the Assignment in accordance with the terms and conditions set forth herein and in the Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [ENTITY] and Assignee do hereby agree as follows:
1. Assignment and Assumption. Effective as of the Effective Date, [ENTITY] hereby assigns, transfers, and conveys to Assignee all of [ENTITY’S] rights, interest, duties, liabilities, and obligations in, to, and under the Agreement, and Assignee hereby accepts and assumes all such rights, interests, duties, liabilities, and obligations under the Agreement from [ENTITY] for [the Property or a portion of the Property] (“Assigned Property”) [, except to the extent [ENTITY] has retained a portion of the Property (the “Retained Property”)].
2. City Consent to Assignment. Effective as of the Effective Date, City hereby consents to the Assignment and hereby fully releases and forever discharges [ENTITY] from any and all obligations to City under the Agreement for the Assigned Property, [except [ENTITY’S] obligations with respect to the Retained Property]. 142
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3. Entire Agreement. This Agreement represents the final and entire agreement between the parties in connection with the subject matter hereof, and may not be modified except by a written agreement signed by both [ENTITY] and Assignee.
4. Governing Law. This Agreement has been prepared, negotiated, and executed in, and shall be construed in accordance with, the laws of the State of California, without regard to conflict of law rules.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
[ENTITY]:
[ENTITY]
a [LEGAL DESIGNATION]
By: ___________________________
Name:
Its:
Assignee:
________________________________
________________________________
By: ___________________________
Name:
Its:
City:
City of Aliso Viejo,
a California Municipal Corporation
By: ___________________________
Name:
Its: City Manager
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City of Aliso Viejo
AGENDA ITEM
DATE: October 21, 2026
TO: Mayor and City Council
FROM: Shaun Pelletier, City Engineer
SUBJECT: APPROVAL OF COOPERATIVE AGREEMENT WITH THE CITIES OF
ALISO VIEJO, LAGUNA NIGUEL, LAGUNA HILLS, AND MISSION VIEJO
FOR THE LA PAZ ROAD REGIONAL TRAFFIC SIGNAL
SYNCHRONIZATION PROGRAM PROJECT
______________________________________________________________________ Recommended Actions:
1. Approve the Cooperative Agreement by and between the City of Laguna Niguel and the cities of Aliso Viejo, Laguna Hills, and Mission Viejo for the La Paz Road Regional Traffic Signal Synchronization Program Project;
2. Appropriate an additional $86,133.76 in Measure M2 funds to the fiscal year 2026- 27 Capital Improvement Plan budget;
3. Authorize the Mayor and the City Clerk to execute the agreement; and
4. Authorize the City Manager to execute future amendments to the agreement.
Fiscal Impact:
Aliso Viejo’s match will be $86,133.76. An additional $86,133.76 in Measure M2 funds will be appropriated to the fiscal year 2026-27 Capital Improvement Plan budget.
Background:
As part of Renewed Measure M (M2), the Orange County Transportation Authority (OCTA) is responsible for implementing traffic signal coordination projects under the Regional Traffic Signal Synchronization Program (RTSSP), also known as Project "P".
These projects will improve traffic flow by providing traffic signal infrastructure improvements and synchronization on major corridors that cross several jurisdictions totaling over 2,000 signalized intersections across Orange County. The project corridor is La Paz Road between Olympiad Road/Felipe Road to Crown Valley Parkway and is approximately 8 miles long and spans four agencies, crossing both the 1-5 freeway and 144