AGENDA REPORT — Tustin City Council, October 6, 2026 (part 3 of 4)

City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT B

DEFINED TERMS
“Access Easement Agreement” shall mean that certain Access Easement Agreement to be executed and delivered by the City and recorded in the Official Records against the Real Property concurrently with recording of this Declaration. “Accrue”, “Accrued” or “Accruing” shall mean with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. “Action” shall mean any action, suit, proceeding, counterclaim or other proceeding for any relief against another Person, declaratory or otherwise. “Active Adult Project” shall mean the development, construction, maintenance, leasing and use of the by Developer of an age restricted (55 years or older) residential independent living and active adult component of the Project and related Project Improvements on the Active Adult Real Property.
“Active Adult Real Property” shall mean the approximately 2.79 acre portion of the Real Property depicted as such on Exhibit A-2 to this Declaration and if the Final Parcel Map is recorded in the Official Records, shall be comprised of Parcel 1 on the Final Parcel Map. “Active Negligence” shall mean an affirmative act performed negligently and not a failure to act.
“Affordable Housing Declaration” shall mean that certain Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement by and between the Tustin Housing Authority and the City dated as of the Restrictions Date and recorded in the Official Records substantially concurrently with the recording of this Declaration, as the same may be amended or modified from time to time.
“Agreement” shall mean the DDA as defined in this Declaration. “AL/MC Project” shall mean the development, construction, maintenance, leasing and use of the by Developer of the senior congregate care assisted living and memory care components of the Project and related Project Improvements on the AL/MC Real Property. “AL/MC Real Property” shall mean the approximately 3.35 acre portion of the Real Property depicted as such on Exhibit A-2 to this Declaration, and if the Final Parcel Map is recorded in the Official Records, shall be comprised of Parcel 2 of the Final Parcel Map. “Approved Plans” (a) shall, during the term of the DDA, have the meaning set forth in the DDA and (b) upon termination of the DDA, shall mean construction level drawings consistent with the Entitlement Approvals and approved by the City or responsible agency as required to obtain any required Development Permits.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit B

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Portion of Disposition Area 8
“Base Closure Law” shall have the meaning set forth in Recital A. “Basic Concept Plan” shall mean the design, phasing, product mix and other related submittals by Developer to the City on or before the Restrictions Date for purposes of obtaining Entitlements approvals and to satisfy the City’s design approval rights pursuant to the DDA and shall include the phasing and product mix as set forth in the Scope of Development attached to the DDA, as the same may have been revised from time to time in accordance with the terms of the DDA.
“Binding Agreement” shall have the meaning set forth in Section 5.3.1. “Bioswale Easement” shall mean that certain Bioswale Easement to be executed and delivered by the City and recorded in the Official Records against the Real Property concurrently with recording of this Declaration.
“Boundary Landscape Area” shall mean that portion of the Real Property and the City Property (as defined in the Landscape Installation and Maintenance Agreement), in each case generally between the back of curb on each public street adjoining the Real Property and the buildings on the Real Property, as more particularly depicted on Exhibit C to the Landscape Installation and Maintenance Agreement.
“Business Day(s)” shall mean any day other than Saturday, Sunday and each City observed legal holiday.
“CEQA” shall mean the California Environmental Quality Act and implementing regulations and guidelines, contained in California Public Resources Code Section 21000 et seq., and California Code of Regulations, title 14, Section 15000 et seq., respectively. “Certificate of Compliance” means a certificate issued and recorded in the Official Records by the City upon Completion by Developer of the Project Improvements on the Active Adult Real Property and/or the Project Improvements on the AL/MC Real Property, as applicable, and satisfaction of all additional Conditions Precedent thereto as described in the DDA, provided that if the Final Parcel Map is not recorded in the Official Records prior to issuance and recording by the City in the Official Records of the first of these two Certificates of Compliance, then in lieu of separate Certificates of Compliance for each component of the Project, there shall be only one Certificate of Compliance issued and it shall be issued after Completion of the entirety of the Project and satisfaction of all additional Conditions Precedent set forth in the DDA for both the Active Adult Project and AL/MC Project. For avoidance of doubt, the number, timing, issuance and recording of Certificates of Compliance shall be governed by Sections 1.1.13 and 1.1.34 of the Development Agreement, and nothing in this Declaration shall impose any additional condition upon such issuance or recording.
“City” shall mean the City of Tustin and each assignee or successor to the City of Tustin’s rights and powers under this Declaration provided that in this Declaration where the term “City and its Governmental Successors” is used, the term “City” shall be deemed to mean solely the City of Tustin.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit B

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Portion of Disposition Area 8
“City Code” shall mean the Tustin City Code for the City of Tustin, California, as the same may be amended from time to time.
“City Council” shall have the meaning set forth in Recital A. “City Indemnified Parties” shall mean the City the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority, the Tustin Finance Authority, and their respective elected and appointed officials, employees, agents, representatives, attorneys, affiliates, consultants, contractors, successors and assigns. “City Lien” shall have the meaning set forth in Section 8.5. “City Manager” shall mean the City Council appointed City Manager of the City of Tustin, or other designee as identified in writing by the City Manager. “City Property” shall have the meaning set forth in the Landscape Installation and Maintenance Agreement.
“City Released Parties” shall mean the City, the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority, the Tustin Finance Authority, and their respective elected and appointed officials, employees, agents, representatives, attorneys, affiliates, consultants, contractors, successors and assigns. “Claim” or “Claims” shall mean any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys’ fees, fees of expert witnesses, consultants’ fees and court and litigation costs), costs and expenses attributable to compliance with judicial and regulatory orders and requirements, fines, penalties, liens, taxes, monetary payment or reimbursements or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. “Claiming Party” shall have the meaning set forth in Section 11.11. “Close of Escrow” shall mean the conveyance of the Property by the City to Developer upon the Restrictions Date.
“Closing Date” shall mean the Restrictions Date.
“Construction Liens” shall have the meaning set forth in Section 8.11.6 of the DDA (as incorporated in Section 6.3 of this Declaration).
“Control”, “Controlled” or “Controlling”, as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current power to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests. Notwithstanding the foregoing, (i) the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Portion of Disposition Area 8
decisions of another Person, without more, does not constitute “Control” if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person and (ii) the fact that a Person acts as the Manager does not without more constitute “Control”. Without limiting the generality of the foregoing, it shall be a presumption that control with respect to a corporation or limited liability company is the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights granted to all equity holders in the corporation or limited liability company. It shall be a presumption that control with respect to other types of entities such as a partnership, trust, other entity or association, is the possession by a Person, indirectly or directly, of the power to direct or cause (by such Person’s sole action) the direction of the management or policies of the controlled entity. “Controlling Person” shall mean, as to any Person, any other Person who Controls the Person in question. Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person of Developer unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of Developer. “DDA” shall have the meaning set forth in Recital D.
“Declaration” shall have the meaning set forth in the preamble to this Declaration. “Default” shall mean a Potential Default and/or Material Default. “Defended Party” shall have the meaning set forth in Section 10.8 of the DDA (as incorporated in Section 6.15 of this Declaration).
“Defending Party” shall have the meaning set forth in Section 10.8 of the DDA (as incorporated in Section 6.15 of this Declaration).
“Developer” shall mean (i) prior to recording in the Official Records by the City of a Certificate of Compliance, each Person that is the Developer under the DDA and (ii) following recording in the Official Records by the City of a Final Certificate of Compliance, the Owner of the Real Property or any interest therein or component thereof. “Developer Final Parcel Map” shall mean a final map based on the Tentative Parcel Map or other subdivision map approved by the City approved by the City and the Orange County Surveyor’s office to further subdivide the Real Property and recorded in the Official Records. “Developer Releasing Party” shall have the meaning set forth in Section 4.5.3 of the DDA (incorporated as part of Section 6.2 of this Declaration). “Developer Representatives” shall have the meaning set forth in Section 6(i)(d) of this Declaration.

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Portion of Disposition Area 8
“Development Agreement” shall mean that certain Tustin Legacy Development Agreement (undated), by and between the City and Developer, recorded on ___________________ in the Official Records as Instrument No. _____________________ [{if applicable}, as amended by that certain {insert new document name and date and recording information if applicable}], and as the same may hereafter be further amended, modified or supplemented in accordance with its terms.1
“Development Parcel” shall have the meaning set forth in Recital C. “Development Permits” shall mean all ministerial permits, certificates and approvals which may be required by the City or any other Governmental Authority for the development and construction of the Project Improvements, respectively, including any engineering permits, grading permits, parking structure permits, construction permits, encroachment permits, demolition permits, building permits or other permits as may be necessary pursuant to Chapter 4 of the Specific Plan and/or the City Code and which shall be obtained and maintained in each case in accordance with the DDA, the Development Agreement, the Entitlements and any required environmental mitigation.
“Due Diligence Information” shall mean any and all information or documentation relating to the Development Parcel furnished to Developer by the City, or its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, contractors or consultants or obtained by Developer with respect to the Property or the Project prior to the Close of Escrow. “Effective Date” shall mean ______________, 202_, the effective date of the [original] DDA.2
“End User” shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including the City or any lighting or landscaping district and (ii) for the term in which such contract is in effect, any natural person that has a contractual right to inhabit and does inhabit a Residential Unit or Room. “Entitlements” shall mean the Development Agreement and all discretionary land use approvals and entitlements legally required by the City or any other Governmental Authority as a condition of subdivision of the Real Property or any portion thereof, development of the Real Property and/or construction of the Project Improvements and shall include those specific Entitlements described in the Development Agreement, but specifically excluding Development Permits.
“Environmental Agency” shall mean any federal, State, or regional agency with 1 NTD: To be filled in.

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applicable jurisdiction over the environmental conditions of the Real Property. “Environmental Claims” shall have the meaning set forth in Section 10.2 of the DDA (as incorporated in Section 6.9 of this Declaration).
“Environmental Documents” shall mean the documents delivered by the City to Developer as set forth on Attachment 10 to the DDA (the list of such documents is attached to this Declaration for reference as Exhibit C).
“Environmental Laws” shall mean any federal, State, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials.

Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) (“CERCLA”); the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.) (“RCRA”); the federal Water Pollution Control Act, as amended, (33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Part 2 commencing with Section 78000 of Division 45 of the California Health and Safety Code); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq. “Environmental Matters” shall mean (i) the environmental condition of the Development Parcel; (ii) the compliance of the Development Parcel with Environmental Laws; (iii) the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, or from, the Development Parcel or any current or future improvement thereon or any portion thereof, and/or (iv) Claims of or acts or omission to act of any Governmental Authority or any other third party arising or resulting directly or indirectly from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, from, about, or adjacent to the Development Parcel or any current or future improvement thereon, including any Investigation or Remediation at or about the Development Parcel or any current or future improvement thereon; provided that if the property in question is Returned Property, the forgoing shall apply as to the Returned Property only. “Federal Deed” shall mean that certain Quitclaim Deed D and Environmental Restriction Pursuant to Civil Code Section 1471 dated May 13, 2002, that was recorded in the Official Records on May 14, 2002 as Instrument Number 20020404594.
“Federal Government” shall mean the United States of America (including the Navy), by and through the Secretary of the Navy, or designee.

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Portion of Disposition Area 8
“Final Certificate of Compliance” means the Certificate of Compliance issued and recorded by the City in the Official Records for the last of the Active Adult Project or the AL/MC Project upon satisfaction of all Conditions Precedent therefor set forth in the DDA, provided that if the Final Parcel Map is not recorded in the Official Records prior to issuance and recording by the City in the Official Records of the first of those two Certificates of Compliance, then the single Certificate of Compliance recorded by the City in the Official Records after Completion of the entirety of the Project and satisfaction of all additional Conditions Precedent set forth in the DDA or both the Active Adult Project and AL/MC Project shall be the Final Certificate of Compliance. “Final Parcel Map” means final parcel map No. 2025-151 approved by the City and the Orange County Surveyor’s office and recorded in the Official Records, subdivide the Real Property into Parcel 1 (comprised of the Active Adult Real Property) and Parcel 2 (comprised of the AL/MC Real Property).
“Force Majeure Delay” shall mean any cause whatsoever beyond the reasonable control of a party and which directly, materially and adversely affects the ability of such party to meet its non-monetary obligations under this Declaration, and which events (or the effect of which events) could not have been avoided by due diligence and use of reasonable efforts by such party and shall include without limitation, epidemic, pandemic, shut-down, blockade, quarantine, rebellion, war, act of terrorism, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, freight embargoes, lack of transportation, change in governmental restrictions or requirements, administrative appeals, arbitration or litigation (including litigation challenging any Entitlement or permits), unusually severe weather, inability to secure necessary labor, materials or tools, acts or failure to act of any Governmental Authority, the presence of Hazardous Materials on the Development Parcel or substantial interruption of work due to other construction by third parties in the immediate vicinity of the Development Parcel. A cause shall not be deemed beyond the reasonable control of a party when such cause is peculiar to a party (such as a party’s financial condition, illiquidity, or insolvency), when arising out of the inaction or delay of a party, or to the extent caused by the negligent or intentional act or omission of a party or any of its agents, contractors or affiliates or the breach by a party of its obligations under this Declaration.

Notwithstanding the foregoing, prior to recording in the Official Records by the City of a Certificate of Compliance as to a portion of the Real Property, no cause or event shall constitute a “Force Majeure Delay” for purposes of this Declaration as to such portion of the Real Property unless such cause or event comprises a “Force Majeure Delay” pursuant to the DDA entitling a party under the DDA to suspend or otherwise delay performance. From and after recording in the Official Records by the City of a Certificate of Compliance as to a portion of the Real Property, as to such portion of the Real Property the definition of “Force Majeure Delay” for purposes of this Declaration shall be solely as set forth in this Declaration without regard to the definition of “Force Majeure Delay” as set forth in the DDA.
“FOST” shall mean the Department of Navy findings and determinations that the Development Parcel was suitable for transfer to the City, pursuant to Finding of Suitability for Transfer for Southern Parcels 4-8, 10-12, 14, and 42 and Parcels 25, 26, 30-33, 37, and Portions of 40 and 41 dated September 28, 2001 (FOST #2).

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Portion of Disposition Area 8
“General Plan” shall mean the most current General Plan of the City of Tustin. “Governmental Authority” and “Governmental Authorities” shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi-governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over either or any of the Parties, the Project, the Development Parcel or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Project or such portions of the foregoing as the context indicates.
“Governmental Capacity” shall mean the exercise by the City of its governmental authority with respect to any matter related to this Declaration which shall include the regulation and entitlement of the Development Parcel pursuant to the Entitlements, Development Permits and/or Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, State or local law.
“Governmental Requirements” shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting any or all of the Parties, the Project, the Project Improvements, the Development Parcel or any component thereof or over any property owned by the City upon which work is conducted by or on behalf of Developer in connection with construction of the Project, as applicable, and including the California Surplus Land Act and Guidelines as the same may be amended from time to time, Environmental Laws, the City Code, the Specific Plan, the Entitlements, the Development Permits and the Approved Plans.
“Governmental Successors” shall mean each and every Person that is a successor or an assignee of the City of Tustin and that is a governmental entity or agency. “Grading Work” shall mean all of the grading work required to be completed by Developer pursuant to the Approved Plans, which shall include rough and precise grading of the Real Property and the portions of the Boundary Landscape Area owned by the City, including internal drives and access points.
“Hazardous Materials” shall mean and include the following:
(a) “Hazardous Substance”, “Hazardous Material”, “Hazardous Waste”, or “Toxic Substance” under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C.

Section 6901, et seq.;
(b) An “Extremely Hazardous Waste”, a “Hazardous Waste”, or a “Restricted Hazardous Waste”, under Sections 25115, 25117, or 25122.7 of the California Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Health and Safety Code, or is listed or identified pursuant to Section 25140 or 44321 of the California Health and Safety Code;
(c) “Hazardous Material”, “Hazardous Substance”, “Hazardous Waste”, “Toxic Air Contaminant”, or “Medical Waste” under Sections 25281, 25501, 78075(a), 117690 or 39655 of the California Health and Safety Code;
(d) “Oil” or a “Hazardous Substance” listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro carbonic substance or by-product;
(e) Listed or defined as a “Hazardous Waste”, “Extremely Hazardous Waste”, or an “Acutely Hazardous Waste” pursuant to Chapter 11 of Title 22 of the California Code of Regulations;
(f) Listed by California as a chemical known by California to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; (g) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the guidelines set forth in the California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.;
(j) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.;
(k) Any radioactive material including any “source material”, “special nuclear material”, “by-product material”, “low-level wastes”, “high-level radioactive waste”, “spent nuclear fuel” or “transuranic waste”, and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. Section 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. Section 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.; (l) Regulated under the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., or the California Occupational Safety and Health Act, California Labor Code Section 6300 et seq.;
(m) Regulated under the Clean Air Act, 42 U.S.C. Section 7401 et seq. or Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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pursuant to Division 26 of the California Health and Safety Code; and/or (n) Any substance or compound regarding which a federal or State agency has established a health advisory, including but not limited to, Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) or any associated additives or degradation byproducts thereof. “High Quality Project” shall mean an age restricted (55 years or older) and/or senior congregate care development that represents the highest quality in design and construction in the market area and very well maintained and professionally managed to the highest industry standards.
“High Quality Standards” shall mean, in terms of the quality of maintenance, standards consistent with a High Quality Project.
“Horizontal Improvements” shall mean with respect to both the Active Adult Project and the AL/MC Project, the Grading Work and below grade infrastructure improvements and utilities and utility systems required to be constructed or installed on or in connection with the development of the Project on the Real Property as required by the Approved Plans which may include (i) all public and private streets, roadways, drives, bike paths, alleyways, sidewalks, medians, including the Private Drives and Sidewalks, landscaping, including Landscape Improvements, courtyards, hardscaping, fountains and parking structures and parking lots within the Real Property and all traffic and circulation mitigation to support the Project; (ii) all utilities and utility systems required for the Project from the mainline utility systems constructed in adjoining streets to each building, structure and other improvement requiring such utilities, including domestic and reclaimed water; sewer; telemetry; utilities (electricity, gas, telephone, cable, telecommunications, etc.), and other infrastructure normally required to service a new High Quality Project; and (iii) all improvements required as “Public Benefit Improvements” in the Development Agreement and all sidewalks within the Boundary Landscape Area; and shall include all improvements required by the Tentative Parcel Map, the Entitlements, Development Permits conditions and all other Governmental Requirements as a condition to development of the Project. “Investigation(s)” shall mean any observation, inquiry, examination, sampling, monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying of or concerning the Development Parcel, or any other property upon which Developer is required to construct the Project Improvements, including the air, soil, surface water, and groundwater, and the surrounding population or properties, or any of them, to characterize or evaluate the nature, extent or impact of Hazardous Materials.
“Landscape Improvements” shall have the meaning set forth in the Landscape Installation and Maintenance Agreement.
“Landscape Installation and Maintenance Agreement” shall mean the agreement of the same name executed by the City and Developer and recorded in the Official Records against the Real Property substantially concurrently with recording of this Declaration in the Official Records. “Material Default” shall mean any Potential Default that is not timely cured in accordance Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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with Section 8.2, provided that as to any Potential Default under the DDA or this Declaration, the default and notice of default provisions and the remedies of the City and Developer under the DDA shall govern as to each portion of the Real Property until recording by the City in the Official Records of a Certificate of Compliance for that portion of the Real Property and during that period shall supersede the default, notice of default and remedies provisions of this Declaration. “MCAS Tustin” shall have the meaning set forth in Recital A. “Memorandum of Agreement” shall mean that certain Memorandum of Agreement by and between The United States of America (through the Secretary of the Army or designee) and the City dated May 13, 2002.
“Mortgage” shall mean any indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest or any documents constituting or relating to a sale-leaseback transaction, together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts or other assessments created or imposed by any Governmental Authority, and for the avoidance of doubt shall include any Permitted Mortgage.
“Mortgagee” shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage or, with respect to any property that is the subject of a sale-leaseback transaction, the Person acquiring fee title, and for the avoidance of doubt shall include any Permitted Mortgagee. “Navy” shall mean the United States Department of Navy. “Navy Conveyance Agreement” shall have the meaning set forth in Recital B. “Navy Responsibilities” shall have the meaning set forth in Section 4.5.2.3 of the DDA (incorporated as part of Section 6.1 of this Declaration). “Non-Compete Period” shall have the meaning set forth in Section 5.3.1. “Non-Compete Property” shall have the meaning set forth in Section 5.3.1. “Non-Compete Provisions” shall have the meaning set forth in Section 5.3. “Non-Environmental Claims” shall mean all Claims brought by third parties that are not Environmental Claims.
“Official Records” shall the Office of the County Clerk Recorder, Orange County, California.
“Original DDA” shall have the meaning set forth in Recital D.

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“Other Agreements” shall mean the Development Agreement, the Memorandum of DDA, the SLA Covenant, this Declaration, the Affordable Housing Declaration, the Quitclaim Deed, the Landscape Installation and Maintenance Agreement, the Access Easement Agreement and the Bioswale Easement.
“Owner” shall mean Developer and each Successor Owner holding fee title to all or any portion of the Real Property.
“Owner Affiliate” shall mean with respect to any Owner, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Owner. “Owner Representatives” shall mean as to an Owner, such Owner’s officers, directors, employees, agents, representatives, consultants, contractors, and other persons accessing the Boundary Landscape Area by, through or with the permission or under the direction or auspices of such Owner.
“Permitted Mortgage” shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a security interest in any portion of the Real Property for the purpose of development, construction or refinancing of all or any portion of the Project and approved by the City pursuant to the DDA.

There shall not be more than one Permitted Mortgage for the Real Property. “Permitted Mortgagee” shall mean the Mortgagee with respect to any Permitted Mortgage affecting the Real Property or any portion thereof, and any successor or assign of such having all right, title and interest in and to the loan documents, and in each case meeting the criteria set forth in the DDA and accordingly entitled to the Permitted Mortgagee protections provided by the DDA.
“Person” shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign.
“Potential Default” shall mean any default that is by the terms of this Declaration a “Potential Default.
“Private Drives and Sidewalks” shall mean those private streets, roadways, sidewalks, pedestrian pathways, and bike ways to be constructed by Developer on the Real Property. “Project” shall have the meaning set forth in Recital F. “Project Fair Share Contribution” shall mean the fair share of the Tustin Legacy Backbone Infrastructure Program required to be paid by Developer to the City at the Close of Escrow.
“Project Improvements” shall mean and all Buildings, structures, improvements, Private Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Drives and Sidewalks and all other roads, drives, bike paths, alleyways, sidewalks, utilities, courtyards, landscaping, hardscaping and fountains.
“Property” shall have the meaning set forth in Recital E.

Proprietary Capacity” shall mean the exercise by the City of its rights under this Declaration and the Other Agreements in its proprietary capacity of the City as owner, lessor, assembler, redeveloper and/or seller of property as opposed to its Governmental Capacity. “Quitclaim Deed” shall mean that certain Quitclaim Deed for Portion of Disposition Area 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 dated as of the Restrictions Date, from the City to Developer and recorded in the Official Records following recording in the Official Records of this Declaration. “Real Property” shall have the meaning set forth in Recital E. “Release” (with respect to Hazardous Materials) shall mean any releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing, or dumping into the environment. “Remediate” or “Remediation” shall mean any response or remedial action as defined under Section 101(23) through (25) of CERCLA, and similar actions with respect to Hazardous Materials as defined under comparable state and local laws, and any other cleanup, removal, containment, abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other mitigation or remediation of Hazardous Materials or Releases required by any Environmental Agency or within the purview of any Environmental Laws. “Repurchase Property” shall mean the portion of the Property, if any, repurchased by City pursuant to Section 16.3 of the DDA, which right of repurchase expires on the Vertical Improvements Commencement Date.
“Residential Unit” or “Residential Units” shall mean age restricted (55 years or older) active adult and independent living residential units to be developed on the Active Adult Real Property.
“Restricted Uses” shall have the meaning set forth in Section 5.3.1. “Restrictions” shall have the meaning set forth in Section 1. “Restrictions Date” shall have the meaning set forth in the preamble to this Declaration. “Returned Property” shall mean the Repurchase Property or the Reversion Property as the case may be.
“Reuse Plan” shall have the meaning set forth in Recital A.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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“Reversion Event” shall mean the revesting of any Reversion Property by the City pursuant to Section 16.4 of the DDA during the term of the DDA. “Reversion Property” shall mean the portion of the Property, if any, reverted to City pursuant to Section 16.4 of the DDA, which right of reversion expires on the Vertical Improvements Commencement Date.
“Rooms” shall mean the senior congregate care assisted living and memory care rooms within each building to be developed on the AL/MC Real Property. “Second Party” shall have the meaning set forth in Section 11.10. “SLA Covenant” means that certain Surplus Land Act Covenant (per Government Code Section 54233) made by the City and recorded in the Official Records against the Real Property substantially concurrently with the recording of this Declaration. “SLA Regulations” shall mean those statutes and guidelines promulgated from time to time imposing requirements upon the City with respect to disposition of real property owned by it, including the requirements of California Government Code Section 54220-54234 and the Updated Surplus Land Act Guidelines issued by the California Department of Housing and Community Development on August 1, 2024, as each may be amended from time to time. “Specific Plan” shall mean the MCAS Tustin Specific Plan/Reuse Plan originally adopted by the City on February 3, 2003, as the same may have been previously or may be subsequently amended.
“State” shall mean the State of California.
“Successor Owner” shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of such Real Property to Developer by the City, but excluding any End Users; provided that prior to recording by the City in the Official Records of a Certificate of Compliance for a portion of the Real Property, as to such portion of the Real Property any Transfer shall be subject to the applicable limitations set forth in Article 2 of the DDA.
“Tentative Parcel Map” shall mean Tentative Parcel Map No. 2025-151 approved by the City on September 2, 2026.
“Term” shall have the meaning set forth in Section 4.
“Term of this Agreement” shall have the meaning set forth in Section 6(i)(h) of this Declaration.
“Transfer” shall mean (i) the transfer, sale, assignment, lease, sublease, license, gift, hypothecation, mortgage, pledge or encumbrance, or other similar conveyance by any Developer of Developer’s interests in this Declaration, the Project, the Property, the Project Improvements Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit B

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thereon, as applicable, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, or any agreement to do so; (ii) the granting by Developer of any Mortgage, easement, license, lien or other encumbrance and/or the execution of any installment land sale contract or similar instrument affecting all or a portion of the Project, the Property, the Project Improvements thereon, or any portion thereof or interest of Developer therein; (iii) any merger or similar term as such term is defined by the law of the state in which the transferor entity is formed, and that has the same effect as any of the circumstances described in clauses (i) or (ii) of this definition, and (iv) shall also include any conversion of Developer to an entity form other than that of Developer at the time of execution of this Declaration, provided that a lease by Developer of the Property to an operating entity that directly or indirectly Controls, is Controlled by or is under common Control with Developer for the purpose of operating the Project upon occupancy and with an effective or commencement date on or after the date on which a final or temporary certificate of occupancy is obtained for the Property shall not constitute a “Transfer” within the meaning of this definition.
“Transfer of Control” shall mean, with respect to Developer or Developer’s Controlling Person, the occurrence, directly or indirectly, in a single transaction or a series of transactions, of any of the following:
(i) the conveyance, sale, assignment, transfer or disposition of all or substantially all of that Person’s (or its Controlling Person’s) assets, stock, membership or partnership interests or other equity interests;
(i) the dissolution, merger, reorganization, share exchange, recapitalization, restructuring or consolidation of that Person (or its Controlling Person), other than a transaction that would result in all of the voting securities of that Person (or its Controlling Person) outstanding immediately prior thereto to continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50.01% of the combined voting power of all of the voting securities of that Person (or its Controlling Person) or such surviving entity outstanding immediately after such transaction; and (ii) the acquisition by any “Person” or “Group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) of an aggregate of 50.01% or more of the beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of the issued and outstanding voting securities or other equity interests of that Person (or its Controlling Person), where such acquiring “Person” or “Group” did not directly or indirectly (or through an affiliate) already Control or own at least 50.01% of the voting securities or other equity interests of such Person (or its Controlling Person).
“Tustin Legacy” shall have the meaning set forth in Recital B. “Tustin Legacy Backbone Infrastructure Program” shall mean the Tustin Legacy Backbone Infrastructure Program in effect as of the Effective Date. “Vertical Improvements” shall mean all buildings, structures and other improvements, other than the Horizontal Improvements, to be constructed or installed on the Property, consistent Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit B

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with the Specific Plan, the Approved Plans, the Entitlements and the Development Permits. “Vertical Improvements Commencement Date” shall mean the date on which the inspection of the reinforcing steel for the walls and/or columns of the ground-level parking structure for the Active Adult Project or AL/MC Project has been undertaken and passed, and the passing of such inspection shall constitute commencement of vertical construction.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit C

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EXHIBIT C

LIST OF ENVIRONMENTAL REPORTS AND STATEMENTS

1. Department of Navy “Final Environmental Baseline Survey” dated March 2001

2. Finding of Suitability to Transfer for Southern Parcels 4-8, 10-12, 14, and 42 and Parcels 25, 26, 30-33, 37, and Portions of 40 and 41 Marine Corps Air Station Tustin, California” dated September 28, 2001.

3. Finding of Suitability for Transfer for Parcels 23, 29, 34, 35, and 36, and Portions of 1, 16, 17, 24, 27, 28, 40 and 41 dated April 22, 2002

4. Agreement Between The United States of America and The City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13, 2002

5. Quitclaim Deed D and Environmental Restriction Pursuant to California Civil Code Section 1471 dated May 13, 2002

6. Quitclaim Deed G and Environmental Restriction Pursuant to California Civil Code Section 1471 dated May 13, 2002.

7. Geotechnical Report of Observation and Testing during Rough Grading, “Neighborhood D” Phases I and II, Disposition Area 8, 2C and a Portion of 2B, Tustin Legacy, City of Tustin, California dated September 26, 2014.

8. Final Summary Report for Per-and Polyfluoroalkyl Substances Sampling at Operable Unit 3, IRP Site 1, Former Marine Corps Air Station Tustin dated April 2018

9. Final Site Assessment and Soil Removal Action Report Tustin Neighborhood D-South, Areas 1 and 2 Total Petroleum Hydrocarbon Impacts Former Marine Corps Air Station Tustin, Tustin, California dated September 2018.

10. Determination of No Further Action for Petroleum Release at Neighborhood D South at Former Marine Corps Air Station Tustin, Orange County, California dated September 10, 2018.

11. Final Summary Report for PFAS Groundwater Sampling in Carve-Outs 5 and 6 (November 2018)

12. N-D South PFAS Investigation Report (August 2019)

13. N-D South PFAS Investigation Report Appendices

14. Final Summary Report, Additional Assessment of PFAS in Groundwater in Carve-Outs 2, 5, 6 and 9 and near OU-3 (June 2020)
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

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Exhibit C

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15. Final Summary Report, Additional Assessment of PFAS in Groundwater in Carve-Outs 2, 5, 6 and 9 and near OU-3 Phase 2 (October 2020)

16. Final Preliminary Assessment/Site Inspection Report Basewide Investigation of Per- and Polyfluoroalkyl Substances (December 2021)

17. Revised Final Preliminary Assessment/Site Inspection Report Basewide Investigation of Per- and Polyfluoroalkyl Substances (August 2022)

18. Draft Work Plan Remedial Investigation of Per- and Polyfluoroalkyl Substances (June 2023)

19. Final Work Plan Remedial Investigation of Per- and Polyfluoroalkyl Substances (January 2024)

20. Grading Report for ND South Phase 2 Package 1, including without limitation the rough grade certificates by David Hoopfer, civil engineer for Michael Baker International, as to bridge mounds on October 21, 2024 and January 27, 2026 and Jeremy Beck for Landmark Surveying on January 16, 2026.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 20 Special Restrictions

9.26.26 (HM)
Exhibit D City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT D

MAP OF NON-COMPETE PROPERTY
[see attached]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A PROJECT NO. DRAWN BY: DESIGNED BY: DATE: REVIEWED BY: DATE NO. REVISION CK BY FIRST SUBMITTAL DATE: SHEET NO. Plot Date: Save Date: 9/3/2026 5:38 PM 9/3/2026 5:31 PM By: Juta P:\C\CONFCDMS0012\0400CAD\EXHIBITS\2026-09-03 Tustin Development Agreement Exhibit H\Reference\EXHIBIT I-CONFCDMS0012.dwg Justin Tat By: File:

CHECKED BY: ® 17542 E. 17th Street Suite 150 Tustin, CA 92780 714.665.4500
EXHIBIT I - NON-COMPETE MAP CLEARWATER AT TUSTIN LEGACY TENTATIVE PARCEL MAP 2025-151 LOT 14, TRACT NO. 18197, M.M. 990/25-33 TUSTIN, CA 92606 09/03/2026 CONFCDMS-0012 1 OF 1

NON-COMPETE PROPERTY SPECIAL RESTRICTIONS EXHIBIT D HARVARD AVENUE LEGEND

NON COMPETE PROPERTY
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A ATTACHMENT 21

FORM OF LANDSCAPE INSTALLATION

AND MAINTENANCE AGREEMENT
Tustin Confluent DDA Att 21 Landscape Agt

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Attachment 21
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CITY OF TUSTIN OFFICIAL

BUSINESS REQUEST DOCUMENT

TO BE RECORDED AND TO BE

EXEMPT FROM RECORDING FEES
PER GOVERNMENT CODE 6103
AND 27383.

Recording requested by and
When recorded mail to:

The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE

LANDSCAPE INSTALLATION

AND MAINTENANCE AGREEMENT
This LANDSCAPE INSTALLATION AND MAINTENANCE AGREEMENT
(“Agreement”) is entered into this ___ day of ____________, 202_ (“Effective Date”) by and between the CITY OF TUSTIN, a municipal corporation of the State of California (as further defined below, “City”) and _____________________, a ___________ limited liability company (“Developer”).

RECITALS
A. The City and Developer, as successor in interest to CD-CW (Tustin) LLC, a Colorado limited liability company, have entered into the Tustin Legacy Disposition and Development Agreement for Portion of Disposition Area 8, dated as of _______, 2026 [{if amended, insert amendment information:} as amended by __________, collectively,] (“DDA”) and a memorandum of the DDA has been recorded in the office of the Orange County Clerk Recorder (“Official Records”) immediately prior to recording in the Official Records of the Quitclaim Deed (defined below).

B. The City and Developer, as successor in interest to CD-CW (Tustin) LLC, a Colorado limited liability company, have also entered into certain Tustin Legacy Development Agreement (undated) recorded in the Official Records on _______________, 2026 as Instrument No. ___________[{if amended, insert amendment information:} as amended by __________, collectively,] (“Development Agreement”). The Development Agreement imposes certain obligations upon Developer, including, without limitation, the obligation to construct certain public benefit improvements including entry into this Agreement and installation, maintenance, repair and replacement of the Landscape Improvements.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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C. As of the Effective Date, Developer is the Owner of that certain land legally described on Exhibit A to this Agreement (“Real Property”) upon which shall be developed an age restricted (55 years or older) active adult and independent living facility and senior congregate care comprised of assisted living and memory care facilities and related improvements and amenities to be constructed in accordance with the Approved Plans, the Entitlements and the Development Permits (collectively, “Project”).

D. The City is the owner of certain land located adjacent to and surrounding the Real Property comprising a portion of the Boundary Landscape Area (defined below) as depicted on Exhibit B (“City Property”).

E. The City has approved certain Entitlements (defined below) with respect to the Real Property, including, without limitation, (i) Design Review approval (Design Review application 2025-0008) adopted by the City of Tustin City Council pursuant to Resolution No.__________, on ___________, 2026; and (ii) Conditional Use Permit approval (CUP 2025-0012); adopted by the City of Tustin City Council pursuant to Resolution No.__________, on ___________, 2026.

The conditions of approval with respect to the Entitlements (collectively, “Conditions”) and the terms of the DDA and the Development Agreement require that Developer install the Landscape Improvements (defined below) within the Boundary Landscape Area and maintain the Landscape Improvements as described in this Agreement.

F. Developer has agreed to execute this Agreement to provide for installation of the Landscape Improvements and the maintenance by Developer and its Successor Owners of the Boundary Landscape Area and the Landscape Improvements. This Agreement shall be a covenant running with the land and burdening the Real Property for the benefit of the portions of the City Property and the City and its successors and assigns.

NOW, THEREFORE, in consideration of the benefits conferred, the mutual covenants and conditions contained herein, and the duties and obligations incurred, the parties hereto agree as follows:

AGREEMENT

1. Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meanings:
“Accrue”, “Accrued” or “Accruing” shall mean with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. “Affiliate” shall mean with respect to any Owner, any entity that directly or indirectly Controls, is Controlled by or is under common Control with that Owner. “Affordable Housing Declaration” shall mean the Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement by and between the Tustin Housing Authority and the City recorded in the Official Records immediately prior to recording of the Quitclaim Deed.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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“Agreement” shall have the meaning set forth in the preamble to this Agreement. “Approved Plans” shall, during the term of the DDA, have the meaning set forth in the DDA and, upon termination of the DDA, shall mean construction level drawings consistent with the Entitlements and approved by the City or responsible agency as required to obtain any required Development Permits.
“Boundary Landscape Area” shall mean that portion of the City Property and that portion of the Real Property, in each case generally between the back of curb on each public street adjoining the Real Property and the buildings on the Real Property, as more particularly depicted on Exhibit C.
“Business Day(s)” shall mean any day other than Saturday, Sunday and each City observed legal holiday.
“Certificate of Compliance” shall mean a certificate of compliance issued by the City and recorded in the Official Records pursuant to the terms of the DDA to document the completion of the improvements comprising the Project, including without limitation the Landscape Improvements and, except as otherwise set forth therein, the termination of the DDA as to all or a portion of the Real Property and the Project.
“City” shall have the meaning set forth in the preamble to this Agreement and where used in this Agreement shall include the successors and assigns of the City. “City Code” shall mean the Tustin City Code for the City of Tustin, California, as the same may be amended from time to time.
“City Improvement Areas” shall have the meaning set forth in Section 7.2. “City Improvements” shall mean the standard and/or meandering perimeter public street sidewalks on the Boundary Landscape Area and the existing bioswale and rock wall located on the Real Property, but shall exclude public sidewalks in the Enhancement Areas, if any. “City Indemnified Parties” shall mean the City, the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority, the Tustin Finance Authority, and their respective elected and appointed officials, employees, agents, representatives, attorneys, affiliates, consultants, contractors, successors and assigns. “City Indemnified Party” shall mean any one or more of the City Indemnified Parties, individually.
“City Lien” shall have the meaning set forth in Section 12.2. “City Property” shall have the meaning set forth in Recital D. “Claims” shall have the meaning set forth in Section 9.1.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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“Conditions” shall have the meaning set forth in Recital E. “Control” “Controlled” or “Controlling”, as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests. Notwithstanding the foregoing, (i) the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute “Control” if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person and (ii) the fact that a Person acts as the Manager does not without more constitute “Control”. Without limiting the generality of the foregoing, it shall be a presumption that control with respect to a corporation or limited liability company is the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights granted to all equity holders in the corporation or limited liability company. It shall be a presumption that control with respect to other types of entities such as a partnership, trust, other entity or association, is the possession by a Person, indirectly or directly, of the power to direct or cause (by such Person’s sole action) the direction of the management or policies of the controlled entity.. “Controlling Person” shall mean (i) any Person who Controls Developer (or either of them) during the term of this Agreement and (ii) any Person who Controls a Controlling Person.

Notwithstanding the foregoing, if a Person has the right to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of Developer, such Person shall not be deemed to be a Controlling Person unless such Person also possesses, directly or indirectly (including through one or more intermediaries), the power to direct or cause the direction of the management and policies of such Developer. “DDA” shall have the meaning set forth in Recital A.
“Default Interest Rate” shall mean an interest rate of ten percent (10%) per annum, compounded annually, but in no event in excess of the maximum legal rate. “Default Notice” shall have the meaning set forth in Section 12.1. “Developer” shall mean (i) as to the Real Property or any subdivided portion thereof for which a Certificate of Compliance has not been recorded by the City in the Official Records, the Developer under the DDA with respect thereto, and (ii) following recording in the Official Records by the City of a Certificate of Compliance for the Real Property or any subdivided portion thereof, the Owner of such portion of the Real Property.
“Development Agreement” shall have the meaning set forth in Recital B. “Development Permits” shall mean all ministerial permits, certificates and approvals which may be required by the City or any other governmental entity for the development and construction of the Landscape Improvements.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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“Effective Date” shall have the meaning set forth in the preamble to this Agreement. “End User” shall mean any (i) utility or Governmental Authority with respect to any transfer of portions of the Real Property or grants of easements affecting the Real Property desirable for the development of the Real Property, including, without limitation, the City or any lighting or landscaping district and (ii) for the term in which such contract is in effect, any natural person that has a contractual right to inhabit and does inhabit a residential unit or room upon the Real Property.
“Enhancement Areas” shall have the meaning set forth in Section 3. “Entitlements” shall mean all discretionary land use approvals and entitlements legally required by the City or any other governmental entity as a condition of subdivision of the Real Property, development of the Project and construction of the Landscape Improvements and all conditions thereto, including, without limitation, the Conditions, but excluding Development Permits.
“Environmental Agency” shall mean any federal, State, or regional agency with applicable jurisdiction over the environmental conditions of the Real Property. “Environmental Laws” shall mean any federal, State, regional or local laws, ordinances, rules, regulations, requirements, orders, directives, guidelines, or permit conditions, in existence as of the Effective Date or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Materials, and all applicable judicial, administrative and regulatory decrees, judgments and orders and common law, including, without limitation, those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, Release, disposal, transportation, Investigation or Remediation of Hazardous Materials.

Environmental Laws shall include, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) (“CERCLA”); the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.) (“RCRA”); the federal Water Pollution Control Act, as amended, (33 U.S.C. Section 1251 et seq.); the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et seq.); the Hazardous Substances Account Act (Part 2 commencing with Section 78000 of Division 45 of the California Health and Safety Code); Chapter 6.5 commencing with Section 25100 (Hazardous Waste Control) and Chapter 6.7 commencing with Section 25280 (Underground Storage of Hazardous Substances) of the California Health and Safety Code; and the California Water Code, Sections 13000 et seq.
“Governmental Authority” shall mean each and all federal, State, county, municipal and local governmental and quasi-governmental bodies and authorities (including, without limitation, the United States of America, the State and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over either or any of City, any Developer or Owner, the Project, the Real Property or over any property, including, without limitation, the City Property, owned by the City upon which work is conducted by or on behalf of Developer in connection with installation, construction or maintenance of the Landscape Improvements on the Boundary Landscape Area.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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“Hazardous Materials” shall mean and include the following:
(a) “Hazardous Substance”, “Hazardous Material”, “Hazardous Waste”, or “Toxic Substance” under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C.

Section 6901, et seq.;
(b) An “Extremely Hazardous Waste”, a “Hazardous Waste”, or a “Restricted Hazardous Waste”, under Sections 25115, 25117, or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to Section 25140 or 44321 of the California Health and Safety Code;
(c) “Hazardous Material”,
“Hazardous Substance”, “Hazardous Waste”, “Toxic Air Contaminant”, or “Medical Waste” under Sections 25281, 25501, 78075(a), 117690 or 39655 of the California Health and Safety Code;
(d) “Oil” or a “Hazardous Substance” listed or identified pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any other hydro carbonic substance or by-product;
(e) Listed or defined as a “Hazardous Waste”, “Extremely Hazardous Waste”, or an “Acutely Hazardous Waste” pursuant to Chapter 11 of Title 22 of the California Code of Regulations;
(f) Listed by California as a chemical known by California to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; (g) A material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the guidelines set forth in the California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; (i) Pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.;
(j) Asbestos, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.;
(k) Any radioactive material including without limitation any “source material”, “special nuclear material”, “by-product material”, “low-level wastes”, “high-level Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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radioactive waste”, “spent nuclear fuel” or “transuranic waste”, and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C.

Section 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. Section 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code Section 114960 et seq.;
(l) Regulated under the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., or the California Occupational Safety and Health Act, California Labor Code Section 6300 et seq.;
(m) Regulated under the Clean Air Act, 42 U.S.C. Section 7401 et seq. or pursuant to Division 26 of the California Health and Safety Code; and/o (n) Any substance or compound regarding which a federal or State agency has established a health advisory, including, but not limited to, Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) or any associated additives or degradation byproducts thereof. “High Quality Project” shall mean an age restricted (55 years or older) and/or senior congregate care development that represents the highest quality in design and construction in the market area and very well maintained and professionally managed to the highest industry standards.
“High Quality Standards” shall mean, in terms of the quality of maintenance, standards consistent with a High Quality Project.
“Investigation(s)” shall mean any observation, inquiry, examination, sampling, monitoring, analysis, exploration, research, inspection, canvassing, questioning, and/or surveying of or concerning the Real Property, or any other property upon which Owner is required to construct or maintain improvements pursuant to the DDA, the DA or this Agreement, including the air, soil, surface water, and groundwater, and the surrounding population or properties, or any of them, to characterize or evaluate the nature, extent or impact of Hazardous Materials. “Landscape Improvements” shall mean any and all landscaping, irrigation, lighting (other than City street lighting) and related utilities, street furniture, structures, and/or hardscape improvements required by the Approved Plans, the Entitlements, the Development Permits, the Development Agreement and/or the DDA to be constructed in connection with the Project upon the Boundary Landscape Area and shall include any and all such improvements within the Boundary Landscape Area installed by Developer and/or its Successor Owner(s). For avoidance of doubt, the Landscape Improvements to be installed by Developer include the City Improvements per the Approved Plans, including without limitation, public sidewalks, other than those already installed.
“Laws” shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions and other requirements issued by any all federal, State, county, municipal and local governmental and quasi-governmental bodies and authorities and including, without limitation, the City Code, the Specific Plan, the Entitlements, the Development Permits and Environmental Laws.

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“Mortgage” shall mean any indenture of mortgage or deed of trust, hypothecation, pledge, assignment for security purposes, bond, grant of taxable or tax-exempt funds from a governmental agency or other security interest affecting the Real Property or any portion thereof, in each case together with all loan documents related thereto, but excluding any community facilities districts, service districts, assessment districts, landscape and lighting districts or other assessments created or imposed by any Governmental Authority.
“Mortgagee” shall mean any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage. “Official Records” shall have the meaning set forth in Recital A. “Owner” shall mean Developer and each Successor Owner holding fee title to all or any portion of the Real Property.
“Owner Representatives” shall mean as to an Owner, such Owner’s officers, directors, employees, agents, representatives, consultants, contractors, and other persons accessing the Boundary Landscape Area by, through or with the permission or under the direction or auspices of such Owner.
“Permitted Mortgage” shall mean any indenture of mortgage or deed of trust, bonds, grant of taxable or tax-exempt funds from a governmental agency or other conveyance of a security interest in any portion of the Real Property for the purpose of development, construction or refinancing of all or any portion of the Project and approved by the City pursuant to the DDA.

There shall not be more than one Permitted Mortgage for the Real Property. “Permitted Mortgagee” shall mean the Mortgagee with respect to any Permitted Mortgage affecting the Real Property or any portion thereof, and any successor or assign of such having all right, title and interest in and to the loan documents, and in each case meeting the criteria set forth in the DDA and accordingly entitled to the Permitted Mortgagee protections provided by the DDA.
“Person” shall mean an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, governmental agency or other entity, domestic or foreign.
“Project” shall have the meaning set forth in Recital C. “Quitclaim Deed” shall mean the Quitclaim Deed for Portion of Disposition Area 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 of even date herewith made by the City in favor of and conveying the Real Property to Developer, which has been recorded in the Official Records immediately prior to the recording of this Agreement.
“Real Property” shall have the meaning set forth in Recital C.

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“Release” (with respect to Hazardous Materials) shall mean any releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing, or dumping into the environment. “Remediate” or “Remediation” shall mean any response or remedial action as defined under Section 101(23) through (25) of CERCLA, and similar actions with respect to Hazardous Materials as defined under comparable state and local laws, and any other cleanup, removal, containment, abatement, recycling, transfer, monitoring, storage, treatment, disposal, closure, restoration or other mitigation or remediation of Hazardous Materials or Releases required by any Environmental Agency or within the purview of any Environmental Laws. “State” shall mean the State of California.
“Special Restrictions” shall mean the Declaration of Special Restrictions for Portion of Disposition Area 8 affecting the Real Property, which has been executed by the City and recorded in the Official Records immediately prior to recording of the Quitclaim Deed. “Specific Plan” shall mean the Tustin Legacy Specific Plan as the same has been or shall be amended from time to time.
“Subordination Agreement” shall mean an executed subordination agreement between the City and a Permitted Mortgagee.
“Successor Owner” shall mean each and every Person owning or acquiring fee title to all or any portion of the Real Property from and after the conveyance of the Real Property by the City pursuant to the Quitclaim Deed, but excluding each and every End User, provided that each Transfer of the Real Property or any interest therein or portion thereof shall be subject to the applicable limitations set forth in Article 2 of the DDA until recording by the City in the Official Records of a Certificate of Compliance applicable to the Real Property or subdivided portion thereof or interests related thereto so Transferred.

2. Installation Obligations. Within the time periods established in the DDA, and in accordance with the Approved Plans and all Laws, Developer shall design and install the initial Landscape Improvements within the Boundary Landscape Area and shall install public sidewalks in the locations shown on the Approved Plans within the public right of way adjacent to all public streets abutting the Real Property, all as shown on the Approved Plans applicable to the Real Property.

3. Landscape Improvements Maintenance and Replacement Obligations. Each Owner shall maintain, repair, replace and restore, at its sole cost and expense, the Landscape Improvements and the Boundary Landscape Area, including, without limitation, all street furniture, structures, and hardscape in accordance with the requirements of this Agreement, excepting only reasonable wear and tear and any necessary replacement of Landscape Improvements pursuant to this Agreement. Where enhancements to public sidewalks are installed that are inconsistent with the City’s standard specifications for public sidewalks (e.g., pavers), the Landscaping Improvements shall include all public sidewalks within the area in which such enhancements are made (“Enhancement Areas”) and the same shall be the responsibility of Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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Owner under this Agreement to maintain, repair, replace and restore. Public sidewalks located outside of the Enhancement Areas (i.e., public sidewalks installed consistent with City standard specifications) shall be City Improvements and the responsibility of the City to maintain, repair, replace and restore. Any necessary replacements of Landscape Improvements shall be consistent with the Approved Plans and all Laws and shall in addition be subject to any applicable City review and approvals to the extent the City Code requires a Development Permit in connection with such replacements. The Boundary Landscape Area and Landscape Improvements installed from time to time shall be installed, maintained repaired, replaced and restored in accordance with High Quality Standards and the requirements of this Agreement. All utilities required to maintain, repair, replace and/or restore the Landscape Improvements including, without limitation, water and electrical, shall be paid for by the Owner of the Real Property.

4. Standard of Maintenance. The standard for the quality of maintenance of the Boundary Landscape Area and Landscape Improvements shall be met whether or not a specific item of maintenance is listed below. However, representative items of maintenance shall include, without limitation:
(i) proper maintenance such that such areas and improvements are reasonably free of bare and brown spots, debris, trash, litter, droppings and weeds; (ii) maintenance, repair and replacement on a regular schedule, of landscaping, hardscaping, fencing, irrigation systems and utilities pertaining to the Landscape Improvements;
(iii) regular inspection for graffiti or damage or deterioration or failure, and reasonably prompt repair or replacement of all surfaces, fencing, walls, lighted bollards, decorative pavement, equipment, etc., as necessary;
(iv) fertilizing, irrigating and replacing vegetation, as necessary; (v) use and replacement of vegetation of a type and amount as may reasonably be required to maintain the Boundary Landscape Area in accordance with the Conditions and the Specific Plan and consistent with High Quality Standards; (vi) adequate maintenance of all Boundary Landscape Area and Landscape Improvements such as not to be detrimental to public health, safety, or general welfare; and
(vii) regular trimming and pruning of all trees and shrubs so they do not impede vehicular or pedestrian traffic and do not intrude into neighboring properties including, without limitation, root pruning to eliminate exposed surface roots and damage to curbs and gutters, sidewalks, driveways, utilities and other structures or improvements.

5. Allocation of Maintenance Responsibilities. Maintenance responsibilities shall be vested in the Owner of the Real Property provided that if the Real Property is later subdivided, such Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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responsibilities shall be vested in the Owner of the parcel or lot that contains the applicable portion of the Boundary Landscape Area as depicted on Exhibit C.

6. Term. The term of this Agreement with respect to the Real Property shall expire on the fifty-fifth (55th) anniversary of the Recording in the Official Records of the Final Certificate of Compliance, unless termination at an earlier date is consented to by the City in writing and in its sole discretion. The easements set forth in Section 7.2 remain in effect in perpetuity.

7. Easements and Licenses.

7.1. License in Favor of Owner. The City hereby grants (a) to Developer a license authorizing access by Developer and its Owner Representatives to the City Property for purposes of installation (subject to the requirements of the encroachment permit issued by the City for installation work) of the Landscape Improvements and the public sidewalks on the City Property in accordance with Section 2 and to the public right of way as reasonably required to construct public sidewalks as described in this Agreement, until completion of such installations and (b) to Owner, a license authorizing access by Owner and its Owner Representatives to the City Property, provided that in the event the Real Property is subdivided and owned by different Owners, such license shall extend as to each Owner only to portions of the City Property adjacent to the portion of the Real Property owned by such Owner, for maintenance, repair and replacement of landscape and hardscape, including, without limitation, the Landscape Improvements, in accordance with Section 3 of this Agreement, including, without limitation, for installation of replacement landscaping (subject to the requirements of the encroachment permit issued by the City for installation work). The licenses granted in this Section are in public right of way and may be suspended or revoked by the City in their entirety or in part at any time, at the will of the City, upon provision of thirty (30) calendar days written notice by the City to the Owner, provided that if the City suspends or revokes the license for maintenance, repair and replacement of Landscape Improvements, the Owner shall be relieved, for the period of suspension or permanently in the event of revocation, of the obligation to maintain, repair and replace Landscape Improvements within the portion of the City Property for which the license is suspended or revoked. At the termination date of any license granted in this Section, the Owner shall unless otherwise requested by the City: (i) surrender the portion of the Boundary Landscape Area for which the license(s) is terminated to the City in good order and repair except for ordinary wear and tear or damage by casualty, and (ii) vacate and surrender the Boundary Landscape Area or portion thereof for which the license(s) is terminated to the City in lien free condition as further described in Section 10.

Notwithstanding the termination of any license granted in this Section, the Owner shall remain responsible to fulfill all outstanding obligations of such Owner under the Agreement with respect to the Landscape Improvements and Boundary Landscape Area Accruing during the term of the license granted hereby.

7.2. Easement in Favor of City for Access to and Maintenance of City Improvements. Developer hereby grants to the City and its successors and assigns a perpetual and non-exclusive easement for access to and maintenance, repair and replacement of the City Improvements in, upon, over, across, under and through the portions of the Boundary Landscape Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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Area comprising a portion of the Real Property as reasonably necessary to access the City Improvements (the “City Improvement Areas”).

8. Insurance.

8.1. Each Owner of the Real Property or any portion thereof, at its cost, shall maintain commercial general liability insurance with not less than Five Million Dollars ($5,000,000) per occurrence; and automobile liability limits of not less than Five Million Dollars ($5,000,000) insuring against all liability of such Owner and its Owner Representatives arising out of or in connection with: (a) the license granted to such Owner in Section 7.1; (b) such Owner’s installation, maintenance, repair or replacement of, or such Owner’s failure to maintain, repair or replace, the Landscape Improvements in accordance with the requirements of Sections 3 through 6; and (c) such Owner’s installation of the public sidewalks, as the same may be enhanced pursuant to the Approved Plans, in the Boundary Landscape Area in accordance with the requirements of Section 3 through 6. The required Commercial General Liability and Automobile Liability limits may be satisfied through any combination of primary and umbrella or excess liability insurance, provided the combined limits equal or exceed $5,000,000 per occurrence or accident, as applicable.

The umbrella or excess policy shall follow form over the applicable primary coverage and shall provide coverage at least as broad as the underlying policies. All required endorsements, including additional insured, primary and noncontributory coverage, and waiver of subrogation, shall apply to both the primary and umbrella or excess policies, as applicable. In addition, each Owner shall cause the applicable Owner’s Representatives to provide workers’ compensation insurance meeting statutory limits for all persons employed by such Owner’s Representative in connection with performing any of the work on the City Property in connection with the license granted to Owner in Section 7.1. The foregoing may be satisfied during the term of the DDA by insurance required thereby but shall not subtract from any insurance obligations of such Owner to the City under the DDA. Each Owner shall furnish to the City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance as may be reasonably required by City from time to time.

8.2. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of “A-/VII” (if an admitted carrier) or “A-/X” (if offered by a surplus line broker). If not previously delivered, an ACORD certificate evidencing the foregoing and providing the following endorsements signed by the authorized representative of the underwriter (or copies of the applicable pages from the policy if the applicable endorsement coverage is part of the policy rather than provided by separate endorsement) and reasonably approved by City shall be delivered within ten (10) calendar days following the Effective Date and annually evidencing renewals of each policy and endorsement. The endorsements shall provide as follows: (i) designate “the City of Tustin and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees” as additional insureds on the commercial general liability policies; (ii) the commercial general liability insurance coverage shall be primary, and not contribute with any insurance or self-insurance maintained by City; and (iii) for each policy, a waiver of subrogation for the benefit of the City and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees. “Blanket” endorsements (or coverage within the policy itself) providing the same protection as required by written contract shall be acceptable to the City. Each Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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Owner shall also cause evidence of workers’ compensation insurance meeting statutory limits to be provided to City covering all persons employed by such Owner (if Owner’s employees are performing any work on City Property in connection with the license granted to Owner in Section

7.1) and its Owner Representatives that are performing any of the work on City Property in connection with the license granted to Owner in Section 7.1, and for each such policy, a waiver of subrogation for the benefit of the City and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective elected and appointed officials, agents, representatives and employees. All such insurance will be on an “occurrence,” not a “claims made” and will be prepaid on an annual basis. The procuring of such insurance and the delivery of policies, certificates or endorsements evidencing the same shall not be construed as a limitation on the obligation of each Owner to indemnify City as set forth herein. Notwithstanding the foregoing, while these insurance requirements are able to be satisfied as of the Effective Date, if any of the foregoing requirements are not commercially available at the time required to be obtained or maintained during the term of this Agreement, the applicable Owner and the City shall promptly meet and confer in good faith to seek to resolve such issue and to facilitate the securing such Owner mutually acceptable insurance meeting, as closely as commercially available, the foregoing requirements.

8.3. If, after meeting and conferring in good faith, Owner and City are unable to resolve the issue and Owner fails to procure or to cause timely procurement and maintenance of insurance as required by this Agreement, the City shall have the right, at the City’s election, and upon ten (10) calendar days’ prior written notice to the applicable Owner(s), to procure and maintain such insurance. The premiums paid by the City shall be treated as a loan by the City, due from the applicable Owner(s), to be paid on the first calendar day of the month following the date on which the premiums were paid and such cost, until paid, shall constitute a City Lien on the Real Property of the applicable Owner(s) and with the rights of the City with respect to such City Lien as described in Section 12. The City shall give prompt notice of the payment of such premiums, stating the amounts paid and the name of the insured(s).

9. Indemnity.

9.1. Owner Indemnity on City Property. Each Owner hereby agrees to protect, indemnify, defend and hold harmless the City Indemnified Parties from and against any and all loss, cost, expense, injury, claim, action, cause of action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys’ fees and court costs), and liability (collectively, “Claims”) arising out of or in connection with (i) such Owner’s activities within or work on the Boundary Landscape Area in connection with this Agreement; (ii) any willful misconduct or negligence of such Owner and/or its Owner Representatives with respect to the Boundary Landscape Area; and/or (iii) bodily injury to or death of any person (including, without limitation, any employee or contractor of the City Indemnified Parties) or damage to or loss of use of property resulting from acts or omissions of Owner or any Owner Representative with respect to or within the Boundary Landscape Area; provided that the foregoing indemnity shall not apply to the extent of the active negligence or willful misconduct of any City Indemnified Party. The provisions of this Section shall survive the termination of the licenses granted herein and this Agreement.

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9.2. City Indemnity on City Improvement Areas. City hereby agrees to protect, indemnify, defend and hold harmless the applicable Owner and Owner Representatives from and against any and all Claims arising out of or in connection with (i) City’s work on the City Improvements in the City Improvement Areas in connection with the easements granted pursuant to Section 7.2 above; (ii) any willful misconduct or negligence of any City Indemnified Party with respect to the City’s work on the City Improvements in the City Improvement Areas; and/or (iii) bodily injury to or death of any person (including, without limitation, any employee or contractor of such Owner or any Owner Representatives) or damage to or loss of use of property resulting from acts or omissions of any City Indemnified Party with respect to the City’s work on the City Improvements in the City Improvement Areas; provided that the foregoing indemnity shall not apply to the extent of the active negligence or willful misconduct of any Owner or Owner Representative. The provisions of this Section shall survive the termination of this Agreement.

10. Liens. As between Owner and City, each Owner shall bear all costs related to the installation, maintenance, repair and replacement of the Landscape Improvements on the Boundary Landscape Area. Each Owner shall keep the Boundary Landscape Area and other real property owned by the City free and clear of any mechanics’ liens or materialmen’s liens in connection with such work, and no Owner nor any Owner Representatives shall place, allow to be placed on, or incur any such liens against such property or any portion thereof in connection with the Landscape Improvements or in any way attributable to the acts of such Owner and/or its Owner Representatives thereon. Each Owner agrees to indemnify, defend, and hold the City Indemnified Parties free and harmless from and against any and all Claims arising with respect to payment of liens assessed or levied against the Boundary Landscape Area in connection with work performed, improvements constructed, materials furnished, or any other activities of such Owner or its Owner Representatives in connection with this Agreement which, pursuant to the laws of California, may become a lien upon or be the subject of a stop notice with respect to the Boundary Landscape Area.

Should any lien be filed against the foregoing property in connection with the work of such Owner as described by this Agreement, such Owner shall promptly bond around the lien as part of disputing the lien with the Person asserting the lien. The City may post notices of nonresponsibility on the City Property prior to Owner’s commencement of any work under this Agreement.

11. Compliance with Laws.

11.1. By Owner. Each Owner shall comply with all Laws in connection with its activities under this Agreement including, without limitation, those issued by the Santa Ana Regional Water Quality Control Board, Environmental Protection Agency, or any federal, State, interstate, or local governmental agency having jurisdiction to abate or prevent pollution. Each Owner covenants that it will not generate, use, or store Hazardous Materials on the City Property in violation of Environmental Laws. The disposal of any Hazardous Materials within the City Property is specifically prohibited. No Owner shall discharge waste or effluent from the Boundary Landscape Area in such a manner that the discharge will contaminate streams or other bodies of water or otherwise become a public nuisance. The foregoing shall not subtract from any environmental responsibilities of Developer to the City under the DDA or any other agreement.

Each Owner shall investigate the applicability of and, if and to the extent required by applicable Laws, pay prevailing wages meeting the requirements of such laws and regulations for all of its or its Owner Representatives’ work within the Boundary Landscape Area. Each Owner shall defend, Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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indemnify and hold harmless the City Indemnified Parties from and against all Claims which the City of Tustin may incur by reason of such Owner's action or non-action in violation of its obligations under this Section; provided however, that the foregoing indemnity shall not apply to the extent a Claim relates to or arises from the active negligence or willful misconduct of a City Indemnified Party. The provisions of this Section shall survive the expiration or termination of the licenses granted herein and this Agreement.

11.2. By City. City shall comply with all Laws in connection with its activities related to the City Improvements under this Agreement including, without limitation, those issued by the Santa Ana Regional Water Quality Control Board, Environmental Protection Agency, or any federal, State, interstate, or local governmental agency having jurisdiction to abate or prevent pollution. City covenants that it will not generate, use, or store Hazardous Materials on the City Improvement Areas in violation of Environmental Laws. The disposal of any Hazardous Materials within the City Improvement Areas is specifically prohibited. City shall defend, indemnify and hold harmless each Owner and its Owner Representatives from and against all Claims which such Owner or its Owner Representative may incur by reason of City's action or non-action in violation of its obligations under this Section; provided however, that the foregoing indemnity shall not apply to the extent a Claim relates to or arises from the active negligence or willful misconduct of an Owner or its Owner Representative. The provisions of this Section shall survive the expiration or termination of this Agreement.

12. City Remedies.

12.1. In the event of a breach of any provision of this Agreement by any Owner, including, without limitation, failure of any Owner to pay to the City all costs or expenses incurred by the City pursuant to this Agreement and charged by the City to such Owner, the City may demand by written notice (“Default Notice”) that the violation be cured. With respect to emergencies, including, without limitation, utility service interruptions or similar emergencies, which shall not require advance notice or cure periods hereunder, or with respect to any other breach of this Agreement if the same is not cured by the applicable Owner within (a) thirty (30) calendar days after receipt of the Default Notice, or (b) if such cure cannot be reasonably accomplished within such thirty (30) calendar day period, within one hundred twenty (120) calendar days after receiving the Default Notice from the City, but only if such Owner has commenced such cure within such thirty (30) calendar day period and diligently pursues such cure to completion, or (c) within such longer period as may be approved by the City in advance in its sole discretion, then in each case the City shall have the right, but not the obligation, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such default including, without limitation, (i) to institute legal action against such Owner for specific performance, injunction, declaratory relief, damages, or any other remedy provided by law, (ii) to enter, or permit its designees to enter upon the Real Property and the Boundary Landscape Area, after two (2) Business Days’ prior written notice (or lesser time in the event of an emergency), and to summarily remove any structure or object or to abate any condition that may exist in violation of this Agreement, (iii) to procure and maintain insurance and hold Owner responsible for the costs thereof as described in Section 8.3, and/or (iv) to prosecute any remedy allowed by law or equity for the foregoing against any person or entity acting or failing to act in violation of this Agreement, all at the sole cost of the applicable Owner in an amount equal to all out-of-pocket costs and expenses incurred by City in undertaking any of Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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the actions described in this Section 12, together with interest thereon as described in Section 12.2, and the foregoing shall constitute a City Lien on the Real Property with the rights of the City with respect to such City Lien to be as described in Sections 12.2 and 12.3.

12.2. Any amounts due to City under this Agreement shall bear interest at the Default Interest Rate from the date the City provides the applicable Owner with an invoice detailing such costs until the date paid. Charges and fees collectible by the City and included in said invoice may include, without limitation, the delinquent amount of any payments due under this Agreement, together with any late charges or interest due on any such delinquent payment, reasonable attorneys’ fees, experts’ fees and consultants’ fees and collection costs and collection costs related to such or previous delinquent payment(s) and all fines and/or penalties incurred by or charged by the City, and the foregoing shall, to the greatest extent permitted by applicable law, be a continuing lien and charge upon the Real Property in favor of the City (“City Lien”); and such City Lien shall apply to all portions of the Real Property for which no Certificate of Compliance has been recorded in the Official Records by the City, provided that following recording in the Official Records by the City of a Certificate of Compliance for any subdivided portion of the Real Property, the City Lien shall apply to such portion of the Real Property for which a Certificate of Compliance has been recorded only if the default arises from or is related to such subdivided portion of the Real Property or if the City Lien is as a result of a default by the Owner thereof.

12.3. All City Liens levied in accordance with this Agreement shall be paramount to the lien and charge of any Mortgage upon fee title to such portion of the Real Property and all other liens, except all taxes, bonds, assessments and other levies which, by law, would be superior thereto. The City Lien on the Real Property (or following subdivision, on any subdivided portion thereof) may be enforced by foreclosure and sale of the Real Property (or such subdivided portion thereof, if any), after failure by the Owner thereof to timely pay any special assessment as provided in this Agreement. The sale shall be conducted in accordance with the provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any manner permitted by law.

12.4. Nothing in this Agreement shall restrict the City’s rights to enter and utilize its reserved rights pursuant to the DDA, the Affordable Housing Declaration or the Special Restrictions.

12.5. The rights and remedies given to the City by this Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any other right or remedy at law or in equity which City might otherwise have by virtue of a default under this Agreement, and the exercise of one such right or remedy by any City shall not impair the City’s standing to exercise any other right or remedy.

12.6. Any claim for damages under this Agreement shall be limited to direct (actual) damages, and City and each Owner on behalf of itself and its successors and assigns hereby expressly waives, releases and relinquishes any and all right to any lost profits, incidental, special, collateral, expectation, anticipation, indirect, consequential, exemplary or punitive damages or losses.

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13. Rights of Mortgagees and Mortgagee Protection. No breach or violation of this Agreement, nor any City Lien, shall defeat or render invalid the lien of, prior to recording in the Official Records by the City of a Certificate of Compliance for a portion of the Real Property, any Permitted Mortgage for such portion of the Real Property, and thereafter as to such portion of the Real Property, any Mortgage securing a loan made in good faith and for value, provided, however, that this Agreement and all provisions hereof shall be binding upon and effective against each Successor Owner and each other occupant of the Real Property or portion thereof whose title is acquired by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise, but (a) such Successor Owner shall have a reasonable time, after acquiring title, to cure any violations or correct and change any facts giving rise to the City’s rights under this Agreement occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed (i.e., within the time periods set forth in Section 12.1 commencing as of the date of such acquisition of title thereto), provided that such Successor Owner diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such Successor Owner shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed), and (b) City’s right to damages or abatement shall not be applicable as to such Successor Owner with regard to any noncurable default occurring prior to the time such Successor Owner acquired title. Notwithstanding the foregoing, each Successor Owner shall be required to use the Real Property accordance with the requirements of this Agreement and, the provisions of this Section shall be subject to the rights and protections afforded to any Permitted Mortgagee pursuant to any Subordination Agreement between the City and such Permitted Mortgagee, and the right and protections of the Permitted Mortgagee under any such Subordination Agreement shall not be abridged, limited or otherwise affected by the provisions of this Section or any other provisions of this Agreement.

14. Estoppel Certificate. Each party hereby covenants that within thirty (30) calendar days of the written request of any other party, but not more than annually, it will issue to such other party an estoppel certificate stating: (i) whether the party to whom the request has been directed knows of any default under this Agreement and if there are known defaults specifying the nature thereof; (ii) whether to its knowledge this Agreement has been assigned, modified, or amended in any way (and if it has, then stating the nature thereof); and whether to the party’s knowledge this Agreement is as of that date is in full force and effect, provided that in no event shall an estoppel be requested more often than annually.

15. Runs With the Land; Release and Termination.

15.1. This Agreement and the terms, provisions, promises, covenants and conditions hereof constitute and shall be enforceable as equitable servitudes and covenants running with the land comprising the Real Property and burdening the Real Property in accordance with the provisions of this Agreement, including without limitation the provisions in this Section 15, binding upon Developer and each Successor Owner having any right, title or interest in such Real Property and each and every Person claiming by, through or under Developer or any Successor Owner but excluding any End Users, for the benefit of the City Property and City. In the event of a future subdivision of the Real Property, each Owner shall only be liable for the obligations and liabilities under this Agreement related to the subdivided parcels or lots owned by such Owner and which Accrue during the period that such Owner owns its interest in such parcels or lots and such Owner shall not be liable for those obligations or liabilities that first Accrue after such period of Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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18 City of Tustin/Confluent Development
Portion of Disposition Area 8
ownership and no such Owner shall be liable for those obligations or liabilities of another Owner except that:
(a) the foregoing shall not be deemed to modify or negate any longer or shorter periods of liability, or scope of responsibility for Developer or any Owner set forth in the DDA, during its term, or in the Special Restrictions (as to provisions of the DDA incorporated therein);
(b) prior to recording in the Official Records by the City of a Certificate of Compliance for the Real Property or any subdivided portion thereof, any Transfer (as defined in the DDA) shall be permitted (i.e., authorized) only in accordance with the requirements of the DDA and Developer shall remain liable under this Agreement for matters Accruing prior to recording in the Official Records by the City of the Certificate of Compliance for such portion of the Real Property, notwithstanding the Transfer, until released from its obligations pursuant to the DDA or in the conditions to Transfer (as defined in the DDA) imposed by the City, if any;
(c) following recording in the Official Records by the City of a Certificate of Compliance for the Real Property or any subdivided portion thereof, if a transferee is an Affiliate of the transferor Owner, the transferee Owner shall be deemed to have assumed and be liable for the obligations and liabilities of the transferor Owner and each consecutive prior transferor Affiliate as though such transferee Owner had held joint ownership with the transferor Owner and each consecutive prior transferor Affiliate of it during their respective prior consecutive periods of ownership of the Real Property or subdivided portion thereof; and

15.2. Each Owner shall be responsible to perform all obligations and assume all liabilities of Owner under this Agreement with respect to the portions of the Real Property owned by such Owner and the Landscape Improvements thereon and the adjoining Boundary Landscape Area.

16. Miscellaneous.

16.1. Excuse for Non-Performance. Each party shall be excused from performing any obligation or undertaking provided in this Agreement except any obligation to pay any sum of money under the applicable provisions hereof, in the event and so long as the performance of any such obligation is prevented or delayed, retarded, or hindered by act of God, fire, earthquake, floods, explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials, or supplies in the ordinary course on the open market; failure of normal transportation strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of governmental or civil or military authorities, provided that delays resulting from a lack of funding or financing or from pandemic, epidemic or quarantine or similar matters shall not be an excuse for nonperformance.

16.2. Effect on Third Parties. Except as herein specifically provided, no person shall be deemed to be a third-party beneficiary of any of the provisions contained herein.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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19 City of Tustin/Confluent Development
Portion of Disposition Area 8

16.3. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. Prior agreements, representations, negotiations, and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein, provided that nothing in this Agreement shall limit or restrict the applicability of the DDA, the Quitclaim Deed, the Affordable Housing Declaration, the SLA Covenant and the Special Restrictions for the respective terms thereof.

16.4. Modification. Except as set forth in Section 7 with respect to termination of licenses and access rights, this Agreement may not be modified in any respect or rescinded, in whole or in part, except by an instrument in writing, duly executed and acknowledged by the City or its successors and assigns and the Owner(s) that are the record owners of the portion of the Boundary Landscape Area that is the subject of such change, modification, amendment or rescission. Any change, modification, amendment or rescission which is made without the written consent of such owners shall be null and void and of no effect. No consent or approval of any lessee, easement holder or of any owner other than those owners described in the first sentence of this Section shall be required to modify or amend any provisions of this Agreement.

16.5. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

16.6. Governing Law. This Agreement and the obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of California.

16.7. Waiver and Default. The waiver by one party of the performance of any provision of this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other provision under this Agreement or of any subsequent breach by the other party of the same provision.

16.8. References to Sections, Clauses and Exhibits. Unless otherwise indicated, references in this Agreement to sections, clauses and exhibits are to the same contained in or attached to this Agreement and all exhibits referenced in this Agreement are incorporated in this Agreement by this reference as though fully set forth in this Section.

16.9. Counterparts. This Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all parties, even though all parties are not signatory to the same counterpart.

16.10. Construction. The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm’s length and careful negotiation over a Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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20 City of Tustin/Confluent Development
Portion of Disposition Area 8
considerable period of time, that each party has been given the opportunity to independently review this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it. The provisions of California Civil Code Section 1654 are specifically waived by each party hereto.

16.11. Additional Definitions. When stated in connection with performance by a party, the word “shall” imposes a mandatory requirement on that party to perform the stated act or requirement (and shall be synonymous with “must”) and the term “shall not” imposes a mandatory requirement on that party not to perform the stated act or requirement (and shall be synonymous with “must not”). The word “may” is permissive and does not impose any mandatory requirement on a party to perform the stated act.
{signature pages follow}
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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S-1 City of Tustin/Confluent Development
Portion of Disposition Area 8
IN WITNESS WHEREOF, City and Developer have signed this Agreement as of the date first set forth above.

Dated:

CITY OF TUSTIN:

By: ,
Aldo E. Schindler
City Manager
ATTEST:

By:

Erica N. Yasuda
City Clerk

APPROVED AS TO FORM
By:

David Kendig
City Attorney
Hepner & Myers LLP
Special Real Estate Counsel to the City
By:

Amy E. Freilich
{signatures continue on following page}
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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S-2 City of Tustin/Confluent Development
Portion of Disposition Area 8
DEVELOPER:
{insert signature block}
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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S-3 City of Tustin/Confluent Development
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CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of _________________________________
On _________________ before me, ________________________________________________, Date (Insert Name and Title of the Officer)
personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Seal and/or Stamp above Signature: ______________________________________ Signature of Notary Public
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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S-3 City of Tustin/Confluent Development
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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.

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S-3 City of Tustin/Confluent Development
Portion of Disposition Area 8

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.

9.25.26 (HM)(2).docx
Exhibit A City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT A

LEGAL DESCRIPTION OF REAL PROPERTY

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

LOT 14, INCLUSIVE OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.

EXCEPTING THEREFORE THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTION OF DISPOSITION AREA 8 AND COVENANTS,

CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND

RECORDED PRIO TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FROR ORANGE COUNTY, CALIFORNIA.

FOR CONVEYANCING PURPOSES ONLY: APN 430-481-12
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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Exhibit B City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT B

DEPICTION OF CITY PROPERTY
[see attached]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A

SS SS SS

SS SS SS
DW DW
SS SS

DW DW DW DW
SS

DW SS SS DW DW RW
DW
RW
RW
DW
DW
DW

DW DW DW DW
SS
SS
SS
SS

SS SS SS SS
DW
8"W
12"W
12"W
SS
SS
SS
SS
SS
SS
SS SS
SS DW
DW
DW
DW
DW
DW
DW
DW
E
E
E
E
E
E
E
EX
EX
EX
E
SL
JT
JT
E
E
E
EX
EX
EX
EX
E
JT
JT
E
E
JT
JT
TEL

TEL TEL
TEL
ST
C C

E E E E
E E
ST ST

IRR IRR
IRR
IRR

IRR IRR IRR
J

PROPERTY LINE
& RIGHT OF WAY

JOHN JOHNSON WAY

WARNER AVENUE VETERANS WAYASSISTED LIVING /

MEMORY CARE

BUILDING

ARMSTRONG AVENUE

ACTIVE ADULT BUILDING
PROJECT NO. DRAWN BY: DESIGNED BY: DATE: REVIEWED BY: DATE NO. REVISION CK BY FIRST SUBMITTAL DATE: SHEET NO. Plot Date: Save Date: 9/3/2026 5:17 PM 9/3/2026 5:16 PM By: Juta P:\C\CONFCDMS0012\0400CAD\EXHIBITS\2026-09-03 Tustin Development Agreement Exhibit H\Reference\EXHIBIT D-CONFCDMS0012 - Copy.dwg Justin Tat By: File:

CHECKED BY:
® 17542 E. 17th Street Suite 150 Tustin, CA 92780
714.665.4500
( FEET )
SCALE
1 INCH = 80 FT.
80 0 40 80 160
EXHIBIT H - CITY PROPERTY AREA CLEARWATER AT TUSTIN LEGACY TENTATIVE PARCEL MAP 2025-151 LOT 14, TRACT NO. 18197, M.M. 990/25-33 TUSTIN, CA 92606 09/03/2026 CONFCDMS-0012
1 OF 1
LEGEND

CITY PROPERTY

EXHIBIT B

DEPICTION OF CITY PROPERTY
SS

SS SS SS DW SS SS DW DW
DW SS
DW
RW
RW
RW
DW
DW

DW DW DW
SS
SS

SS SS SS
DW
12"W
12"W
S
SS
SS
SS
SS SS
SS
DW
DW
DW
E
EX
E
E
E
EX
EX
E
JT
T
EL ST
C
E
E

EST E ST
IRR

IRR IRR IR PROPERTY LINE & RIGHT OF WAY PROPERTY LINE & RIGHT OF WAY PROPERTY LINE & RIGHT OF WAY PROPERTY LINE & RIGHT OF WAY

JOHN JOHNSON WAY

WARNER AVENUE

VETERANS WAYASSISTED LIVING / MEMORY CARE BUILDING

ARMSTRONG AVENUE ACTIVE ADULT BUILDING
LEGEND

CITY PROPERTY
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 21 Landscape Agt

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Exhibit C City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT C

DEPICTION OF BOUNDARY LANDSCAPE AREA
[see attached]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A

DW RW RW DW DW DW DW DW DW DW
SS SS SS SS SS SS SS SS DW 8"W 12"W 12"W SS SS SS SS SS SS SS SS SS DW DW DW DW DW DW DW DW E E E E E E E EX EX EX E SL JT

JT E E E EX EX EX EX EJT JT E E JT JT TEL TEL TEL TEL

ST C C E E E E E E

ST ST IRR IRR IRR IRR

IRR IRR IRR J PROPERTY LINE
& RIGHT OF WAY

PROPERTY LINE
& RIGHT OF WAY

PROPERTY LINE
& RIGHT OF WAY JOHN JOHNSON WAY WARNER AVENUE VETERANS WAYASSISTED LIVING /

MEMORY CARE

BUILDING ARMSTRONG AVENUE

ACTIVE ADULT BUILDING
PROJECT NO. DRAWN BY: DESIGNED BY: DATE: REVIEWED BY: DATE NO. REVISION CK BY FIRST SUBMITTAL DATE: SHEET NO. Plot Date: Save Date: 7/31/2026 12:57 PM 7/31/2026 12:52 PM By: Juta P:\C\CONFCDMS0012\0400CAD\EXHIBITS\2026-07-07 Tustin Development Agreement Exhibits For Confluent\Reference\EXHIBIT D-CONFCDMS0012 - Copy.dwg Justin Tat By: File:

CHECKED BY: ® 17542 E. 17th Street Suite 150 Tustin, CA 92780 714.665.4500
( FEET )
SCALE
1 INCH = 80 FT.
80 0 40 80 160
EXHIBIT D - LANDSCAPE AREA CLEARWATER AT TUSTIN LEGACY TENTATIVE PARCEL MAP 2025-151 LOT 14, TRACT NO. 18197, M.M. 990/25-33 TUSTIN, CA 92606 07/08/2026 CONFCDMS-0012 1 OF 1
LEGEND

LANDSCAPE AREA EXHIBIT D

TO DEVELOPMENT AGREEMENT

LANDSCAPE AREA

EXHIBIT C

DEPICTION OF BOUNDARY LANDSCAPE AREA SS SS SS

SS SS SS
DW DW
SS SS

DW DW DW DW
SS

DW SS SS DW DW RW DW RW RW DW DW DW DW DW DW DW
SS SS SS SS SS SS SS SS DW 8"W 12"W 12"W SS SS SS SS SS SS SS SS SS DW DW DW DW DW DW DW DW E E E E E E E EX EX EX E SL JT

JT E E E EX EX EX EX EJT JT E E JT JT TEL TEL TEL TEL

ST C C E E E E E E

ST ST IRR IRR IRR IRR

IRR IRR IRR J PROPERTY LINE
& RIGHT OF WAY

PROPERTY LINE
& RIGHT OF WAY

JOHN JOHNSON WAY

WARNER AVENUE VETERANS WAYASSISTED LIVING /

MEMORY CARE

BUILDING ARMSTRONG AVENUE

ACTIVE ADULT BUILDING

FUTURE PARCEL LINE
( FEET )
SCALE
1 INCH = 80 FT.
80 0 40 80 160
LEGEND

LANDSCAPE AREA
LEGEND

LANDSCAPE AREA
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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Attachment 22
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Portion of Disposition Area 8
ATTACHMENT 22

FORM OF BILL OF SALE

FOR FORMER MILITARY PERSONAL PROPERTY AND OTHER PERSONAL

PROPERTY LOCATED AT THE FORMER MARINE CORPS AIR STATION, TUSTIN This Bill of Sale (“Bill of Sale”) dated as of ___________, 20__ is made by and between the CITY OF TUSTIN, a municipal corporation organized under the laws of the State of California (“City”), acting in its capacity as the Local Redevelopment Authority for the disposition and conveyance of portions of the former Marine Corps Air Station Tustin, and ______________, a _____________ (“Developer”).

RECITALS
A. Pursuant to the Agreement Between the United States of America and the City of Tustin, California For the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13, 2002 (“Conveyance Agreement”), the Federal Government through the Secretary of the Navy (“Navy”) conveyed or leased to the City portions of the former Marine Corps Air Station Tustin (“MCAS Tustin”). The Transferred Utility Systems (as defined below) conveyed under this Bill of Sale were acquired by the City from the Navy by reason of the closure of the MCAS Tustin.

B. The City and Developer entered into that certain Tustin Disposition and Development Agreement for Portion of Disposition Area 8, dated as of ___________, 20__ [{if not amended insert:} (the “DDA”) / {if amended insert:} (“Original DDA”) {and insert any amendments to the DDA:} (the “DDA”)] pursuant to which, among other things, the City agreed to sell, and Developer agreed to purchase the Property, including certain Intangible Property, as those terms are defined in the DDA. The property conveyed to Developer by the City in fee pursuant to that certain Quitclaim Deed For Portion of Disposition Area 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471 of even date herewith (“Quitclaim Deed”) is referred to herein as the “Real Property”.

Initially capitalized terms used and not otherwise defined in this Bill of Sale shall have the meanings set forth in the DDA.

C. Pursuant to this Bill of Sale, the City intends to transfer to Developer (1) all Intangible Property, (2) the Transferred Utility Systems owned by the City, and (3) all Horizontal Improvements constructed on the Real Property (whether complete or under construction), in each case subject to the limitations set forth below.

Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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Attachment 22
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other consideration set forth herein, it is mutually agreed as follows:

1. Transfer. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby quitclaims and transfers to Developer all of the City’s right, title and interest in the following with respect to the Real Property, comprising the “Personal Property”: (a) the Intangible Property and (b) the Transferred Utility Systems (whether complete or under construction), but in each case, specifically excluding the City’s interest in any franchise or similar agreements with third parties and the right of the City to negotiate and enter into franchise agreements or grant franchise rights to third parties under applicable law.

2. Definition of Transferred Utility Systems. For purposes of this Bill of Sale the following terms shall have the meanings set forth below:
a. “Transferred Utility Systems” shall mean those Utility Systems in the Real Property which were transferred from the Navy to the City, and which are not being used by or reserved for future use by the City or any third Person as a public service infrastructure.
b. “Utility Systems” shall mean all utility distribution systems and shall include the following: (a) all current City-owned electrical, gas, telephone and cable television systems, including distribution lines, pad mounted and overhead distribution poles and/or transformers, (b) all conduits and duct banks from outlet or master meters or connection points outside the Real Property to end usage points on the Real Property; and (c) all water, sewer and storm drain systems (other than culvert ditches), including distribution lines and pipelines from outlet or master meters or connection points outside the Real Property to end usage points on the Real Property.

3. Reversion. In the event of a default by Developer or any of its successors in title to the Real Property and upon the exercise by the City of its Right of Repurchase or Right of Reversion under the DDA with respect to all or any portion of the Real Property, at the option of the City, all right, title and interest of Developer in and to the Personal Property, or any portion thereof as determined by the City, shall, upon written notice from the City to Developer, pass to and become the property of the City, the City shall have an immediate right to such Personal Property, and Developer and its successors and assigns shall forfeit all right, title, and interest in and to such Personal Property. Developer hereby agrees for itself and its successors and assigns to execute any assignments, transfers of title, bills of sale or other documents to effectuate the foregoing.

4. Former Military Property; No Warranty. Developer hereby agrees and acknowledges that the City has no knowledge and makes no representations as to the accuracy of the description of the Transferred Utility Systems or the fitness, adequacy or safety of the Personal Property for any particular purpose. The Personal Property is delivered to Developer on an “AS-IS-WHEREIS, WITH ALL FAULTS” basis, and Developer acknowledges that the City has made no Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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Attachment 22
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representations or warranties of any kind whatsoever (excepting only those representations and warranties of the City expressly set forth in Section 3.3 of the DDA), either express or implied in connection with any matters with respect to the Personal Property or any portion thereof, and further that, except as otherwise specifically provided in Section 3.3 of the DDA, the City has not made and does not make and specifically negates and disclaims any representations, warranties, promises, agreements or guaranties of any kind or character, whether express or implied, oral or written, past, present or future, whether by the City or any of its agents, elected or appointed officials, representatives or employees, of concerning or with respect to:
a. the value of the Personal Property or the income to be derived from the Personal Property;
b. the existence or non-existence of any liens, easements, covenants, conditions, restrictions, claims or encumbrances affecting the Personal Property (including any of the foregoing arising from or related to the Entitlements or any of the Other Agreements); c. the suitability of the Personal Property for any and all future development of the Project Improvements and the other uses and activities which Developer may conduct upon the Real Property, including the development and use of the Personal Property and Property as described in the DDA and the Other Agreements;
d. the ability of the City or any third party to complete, or likelihood of the completion of, any of the improvements and infrastructure described by the General Plan, the Specific Plan, the Tustin Legacy Backbone Infrastructure Program or any other plan or policy of the City or any other Governmental Authority;
e. the compliance with or enforcement by the City or any third party of the General Plan, the Specific Plan, the Special Restrictions and other agreements applicable to the Real Property or the special restrictions or other covenants and agreements applicable to other property at Tustin Legacy, any covenants, conditions and restrictions, the Tustin Legacy Backbone Infrastructure Program or any other agreement or governmental restriction or plan affecting Tustin Legacy;
f. the habitability, merchantability or fitness for a particular purpose of the Personal Property;
g. the manner, quality, state of repair or lack of repair of the Personal Property; h. the nature, quality or condition of the Personal Property; i. the compliance of or by the Personal Property and/or its operation in accordance with any of the Entitlements or any Governmental Requirements, including the National Environmental Policy Act, CEQA and the Americans with Disabilities Act of 1990; j. the manner or quality of the construction or materials, if any, incorporated into the Personal Property;
k. the presence or absence of Hazardous Materials, including asbestos or lead paint Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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Attachment 22
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at, on, under, or adjacent to the Personal Property or in other locations at Tustin Legacy; l. the content, completeness or accuracy of the information, documentation, studies, reports, surveys and other materials delivered to Developer in connection with the Personal Property and the transactions contemplated in the DDA and the Other Agreements; m. the conformity of the existing improvements comprising the Personal Property to any plans or specifications for the Personal Property relating to the Development Parcels or the Project;
n. compliance of the Personal Property with past, current or future Governmental Requirements relating to zoning, subdivision, planning, building, fire, safety, health or Environmental Matters and/or covenants, conditions, restrictions or deed restrictions; o. the deficiency of any undershoring or of any drainage to on or from the Real Property or the Personal Property or any other portion of Tustin Legacy or its effect on the Personal Property;
p. the condition of any adjoining land owned by the City, including any property and improvements covered by the Landscape Installation and Maintenance Agreement; q. the fact that all or a portion of the Personal Property may be located on or near an earthquake fault line or falls within an earthquake fault zone established under the Alquist-Priolo Earthquake Zone Act, California Public Resources Code Sections 2621-2630 or within a seismic hazard zone established under the Seismic Hazards Mapping Act, California Public Resources Code Sections 2690-2699.6 and Sections 3720-3725 of Title 14 of the California Code of Regulations;
r. the existence or lack of vested land use, zoning or building entitlements, permits or approvals affecting the Personal Property;
s. the construction or lack of construction of Tustin Legacy or if constructed, the construction of Tustin Legacy in accordance with design guidelines, plans and specifications previously or to be prepared therefor;
t. the conditions, covenants and restrictions imposed or to be imposed upon the Personal Property or any portion thereof under the DDA, the Other Agreements or the Entitlements;
u. the contents of the Memorandum of Agreement, the Federal Deed, the Base Closure Law and the FOST; and
v. any other matters.

5. Environmental Condition of the Personal Property; Restrictions. Without limiting the generality of the foregoing provisions, the City makes no representation or warranty as to the environmental condition of the Personal Property or any portion thereof, the Navy’s obligations with respect to the environmental condition of the Personal Property, if any, or the adequacy or Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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5 City of Tustin/Confluent Development
Portion of Disposition Area 8
accuracy of any environmental report that has been rendered. Developer acknowledges and agrees that (i) there may be some residual contamination on the Personal Property as a result of Navy historic activities; (ii) the Navy has agreed to accept certain limited responsibility for any contamination it caused, including any contamination discovered after transfer from the Navy, in accordance with existing Governmental Requirements including the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102-434) Section 330 and Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9620(h) (“Navy Responsibilities”); and (iii) the deed restrictions contained in the Federal Deed are binding upon the City and its successor and assigns (and therefore, shall be binding upon Developer with respect to the Real Property and the Personal Property upon Developer’s acquisition of the Real Property).

6. Indemnification. The City shall not be responsible for, and Developer hereby agrees that it shall be responsible for and at all times shall relieve, indemnify, protect, defend and hold harmless the City and its successors and assigns and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors and representatives and their respective successors and assigns (collectively referred to as “Indemnified Parties”), from any and all claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and nature whatsoever, including expenses incurred by the Indemnified Parties in defending against legal actions, for death or injury to persons or damage to property and for civil fines and penalties arising or growing out of, or in any manner connected with, any alteration of the Transferred Utility Systems or the Horizontal Improvements or Developer's failure to obtain consent prior to any such alteration, or the ownership, use, operation, maintenance, storage, alteration, sale or lease of any Personal Property transferred under this Bill of Sale.

7. Miscellaneous.
a. Modification. No amendment, change, modification or supplement to this Bill of Sale shall be valid and binding on the City or Developer unless it is evidenced in a writing signed by the party against which enforcement is sought.
b. Applicable Law. This Bill of Sale shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice-of-law principles.
c. Binding Effect. This Bill of Sale and the terms, provisions, promises, covenants and conditions hereof shall be binding upon and inure to the benefit of the City and Developer and their respective heirs, legal representatives, successors and assigns. d. Counterparts. This Bill of Sale may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall together constitute and shall be one and the same instrument. This Bill of Sale shall not be effective until the execution and delivery by the City and Developer of at least one set of counterparts. The City and Developer agree to recognize execution of this Bill of Sale by facsimile or other electronically transmitted signatures; provided that such execution by facsimile or electronic transmission shall not be effective unless a manually executed copy of the signature Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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page is promptly sent by U.S. Postal Service, postage prepaid or overnight delivery service or is hand delivered to the City and Developer. The City and Developer hereby authorize each other to detach and combine original signature pages and consolidate them into a single identical original.

Any one of such completely executed counterparts shall be sufficient proof of this Bill of Sale. [signature page follows]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 22 Bill of Sale

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S-1
City of Tustin/Confluent Development
Portion of Disposition Area 8
IN WITNESS WHEREOF, the Developer and City have executed this Bill of Sale on the date first above written.

Dated:

CITY OF TUSTIN:

By:

Name: Aldo E. Schindler
Title: City Manager
ATTEST:

By:

Erica N. Yasuda
City Clerk

APPROVED AS TO FORM
By:

David Kendig
City Attorney
Hepner & Myers LLP
Special Real Estate Counsel to the City
By:

Amy E. Freilich
DEVELOPER:

By:

Name: ________________________
Title: ________________________
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ATTACHMENT 23

Page 1 of 1 ends

City of Tustin/Confluent Development
Portion of Disposition Area 8
Attachment 23

MAXIMUM SPECIAL TAXES FOR DEVELOPED PROPERTY
FOR FISCAL YEAR 2026-2027
COMMUNITY FACILITIES DISTRICT NO. 2018-01 ZONE 5
Land Use
Class Land Use Fiscal Year 2026-2027Maximum Special Tax 1 APARTMENT PROPERTY --

ACTIVE ADULT
$1,459.30

PER RESIDENTIAL UNIT
(excluding Active Adult
Affordable Apartments) [currently
26 exempt units]
2 COMMERCIAL PROPERTY –

ASSISTED LIVING/

MEMORY CARE
$1,459.30 PER ROOM
3 COMMERCIAL PROPERTY –

RETAIL/SERVICE AMENITIES
$2.82

PER BUILDING SQUARE FOOT
Exclusion of Certain Amenities from Commercial Property The term “Commercial Property – Retail/Service Amenities” shall be defined in the RMA to exclude (1) any amenities or amenity spaces operated or managed by Developer or Operator (or their respective affiliates), and (2) any amenities or amenity spaces leased or licensed by Developer or Operator (or their respective affiliates) to third parties, in each case provided exclusively to residents and/or occupants of the Real Property.

Increase in the Maximum Special Tax
On each July 1, commencing on July 1, 2027, the Maximum Special Tax for Developed Property shall be increased annually by the greater of (a) the change in the Consumer Price Index during the twelve (12) months prior to December of the previous Fiscal Year and (b) two percent (2.00%).

Any incremental adjustment shall be rounded to the nearest one-tenth of a percent. “Consumer Price Index” means, for each Fiscal Year, the Consumer Price Index published by the U.S. Bureau of Labor Statistics for “All items in Los Angeles-Long Beach-Anaheim, CA, all urban consumers, not seasonally adjusted" index (Series Id: CUURS49ASA0, CUUSS49ASA0), measured as of the month of December in the calendar year that ends in the previous Fiscal Year.

In the event this index ceases to be published, the Consumer Price Index shall be another index as determined by the CFD Administrator that is reasonably comparable to the Consumer Price Index. “Fiscal Year” means the period starting July 1 and ending on the following June 30.

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ATTACHMENT 24 City of Tustin/Confluent.

Por. Disp. Area 8
ATTACHMENT 24

FORM OF SUBORDINATION AGREEMENT

CITY OF TUSTIN OFFICIAL BUSINESS

REQUEST DOCUMENT TO BE

RECORDED AND TO BE EXEMPT

FROM RECORDING FEES PER
GOVERNMENT CODE 6103 AND 27383

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

The City of Tustin
300 Centennial Way
Tustin, CA 92708
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE

SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this “Agreement”) is entered into as of ___________ __, 202__ (“Effective Date”), by and between ________________, a ________________ (“Lender”)1, and CITY OF TUSTIN, CALIFORNIA, a municipal corporation duly organized and existing under the laws of the State of California (“City”).

RECITALS
The City and CD-CW (TUSTIN) LLC, a Colorado limited liability company (“Initial Developer”), entered into that certain Disposition and Development Agreement for Portion of Disposition Area 8 (Tustin Legacy), dated as of ____________, 202_, as the same may have been and may be amended from time to time (“DDA”), with respect to certain real property legally described on Exhibit A attached hereto and incorporated herein by this reference (“Development Parcel”). A Memorandum of DDA was recorded against the Development Parcel in the Official Records of Orange County, California (“Official Records”) on _______________ 202_ as Instrument No. ________ (the “DDA Memorandum”). Under the DDA, and as reflected in the DDA Memorandum, the City is entitled to a lien to secure certain amounts payable to the City, which lien is referred to in the DDA, the DDA Memorandum, and in this Agreement as the “City Lien” (and which term as used in this Agreement shall also include any lien created pursuant 1 NTD: Lender to be revised to reference the administrative agent or collateral agent, if applicable.

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to any Property Document, as such term is defined below, regardless of how designated in the Property Document).

City and Initial Developer entered into that certain Development Agreement, dated as of __________, 202_, and recorded in the Official Records on ________, 202_ as Instrument No. _______________ (“DA”).

Pursuant to the DDA, the City has conveyed the Development Parcel to ___________________________ {insert name of borrower} (“Borrower”) by a Quitclaim Deed for Portion of Disposition Area 8 and Covenants, Conditions and Restrictions, Including Environmental Restriction Pursuant to Civil Code Section 1471, dated _____________, 20__ (the “Quitclaim Deed”), which [is intended to be recorded in the Official Records contemporaneously with the recording of this Agreement/was recorded in the Official Records on _____________, 20__ as Instrument No. ____________].

The fee interest created by the Quitclaim Deed in the Development Parcel in favor of the Borrower, together with the improvements and related personal and other property described in the Security Instrument (as defined below), are referred to as the “Mortgaged Property”.

The City and [Initial Developer/Developer] have also previously executed the following documents, each of which has been recorded against the Parcel (as well as, in some cases, also against other real property) in the Official Records on ___________, 202_ (collectively with the Quitclaim Deed, and the DA, as the same may be amended from time to time, the “Property Documents”):
(1) Declaration of Special Restrictions, dated as of _______________, 202_, and recorded in the Official Records as Instrument No. ______________ (the “Special Restrictions”);
(2) Landscape Installation and Maintenance Agreement, dated as of _______________, 202_, and recorded in the Official Records as Instrument No. ______________ (the “Landscape Agreement”) against the Development Parcel; (3) Declaration of Affordable Housing Restrictive Covenants and Regulatory Agreement, dated as of _______________, 202_, and recorded in the Official Records as Instrument No. ______________;] and
(4) the SLA Covenant.

Borrower’s interest created under the Quitclaim Deed in the Development Parcel is subject to the encumbrance of the Property Documents and the City Lien.

In connection with the conveyance of the Development Parcel to the Borrower, {insert name of guarantor}, a ___________________, has executed and delivered a Guaranty to the City dated _______________, 202_, which Guaranty has been reaffirmed by the Reaffirmation of Guaranty, dated _________, 202_.

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Lender has agreed to make a loan to Borrower in the maximum principal amount of $ _______________ (the “Loan”) for the design, construction, development, equipping and/or operation of the Development Parcel, which Loan is initially evidenced by that certain [Note], dated as of ________, 202_, made by Borrower payable to the order of Lender (the “Note”) and that certain [Construction Loan Agreement], dated as of ________, 202_, between Borrower and Lender (the “Loan Agreement”).

The Loan is secured by, among other things, that certain {insert full document title for Deed of Trust}, dated as of the date hereof and executed by Borrower for the benefit of Lender (“Security Instrument”; together with the Note, the Loan Agreement, and all other documents executed in connection with the Loan, are referred to collectively as the “Loan Documents”), which Security Instrument encumbers the Mortgaged Property and was recorded in the Official Records concurrently herewith.

As a condition to the making of the Loan, Lender requires and Borrower requests that the City and Lender execute and deliver this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and the City agree as follows:

DEFINITIONS.

The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), shall have the following meanings.
“Action” has the meaning specified in Section 5(h).
“Bankruptcy Proceeding” means any bankruptcy, reorganization, insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or custodianship action or proceeding under any federal or state law with respect to Borrower, any guarantor of any of the Indebtedness, any of their respective properties, or any of their respective partners, members, officers, directors, or shareholders. “Borrower” means all Persons identified as “Borrower” in the Recitals of this Agreement, together with their successors and assigns, and any other Person who acquires title to the Mortgaged Property after the Effective Date, provided that the term “Borrower” shall not include Lender in the event that Lender acquires title to the Mortgaged Property. “Borrower Document Breach” means any act, failure to act, event, condition, or occurrence that allows (but for any contrary provision of this Agreement), or which with the giving of notice or the passage of time, or both, would allow (but for any contrary provision of this Agreement), the City to take an Enforcement Action. “Borrower Document Default” means the City has delivered to Lender an Enforcement Action Notice and Borrower and Lender have failed to cure the Borrower Document Breach within the cure period granted to Lender as a Permitted Mortgagee under the applicable Property Document for the applicable type of Borrower Document Breach.

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“Business Day” means any day other than Saturday, Sunday and each City observed legal holiday.
“Certificate of Compliance Date” means the date on which a “Certificate of Compliance” (as that term is defined in the DDA) with respect to the Development Parcel is recorded by the City in the Official Records.
“City” means the Person named as such in the preamble to this Agreement. “City Lien” has the meaning specified in Recital A to this Agreement. “City Lien Claim” means a claim that is entitled to the benefit of the City Lien.
“Control,” “Controlled,” or “Controlling,” as used with respect to any Person, shall mean the possession, directly or indirectly (including through one or more intermediaries), of the current ability to direct or cause the direction of the management and policies of such Person, including through the ownership or control of voting securities, partnership interests, membership interests, or other equity interests, acting as the manager of a limited liability company, the administrative general partner of a partnership or otherwise.

Notwithstanding the foregoing, the right of a Person to participate directly or indirectly (including through one or more intermediaries) in significant management decisions of another Person, without more, does not constitute “Control” if such Person with the right to participate in decisions does not also possess, directly or indirectly (including through one or more intermediaries), the current ability to direct or cause the direction of the management and policies of such other Person. “Costs” has the meaning specified in Section 5(h).
“DA” has the meaning specified in Recital B to this Agreement. “DDA” has the meaning specified in Recital A to this Agreement. “DDA Memorandum” has the meaning specified in Recital A to this Agreement.
“Decision” has the meaning specified in Section 5(h).
“Development Parcel” has the meaning specified in Recital A to this Agreement.
“Effective Date” has the meaning specified in the preamble to this Agreement.
“Enforcement Action” means any of the following actions taken by or at the direction of the City: the seeking of default interest or charges, the seeking of or obtaining the appointment of a receiver, the taking of possession or control of any of the Mortgaged Property (including the fee interest therein), the commencement of any suit or other legal or administrative Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 24 Subordination
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proceeding based upon the Property Documents or the City Lien, or the exercise of any other remedy against Borrower, provided that the term “Enforcement Action” shall not include any rights or actions taken by the City in the exercise of its police powers. “Enforcement Action Notice” means a written notice from the City to Lender, given following one or more Borrower Document Breaches, setting forth in reasonable detail the nature of the breach by Borrower.
“Foreclosure” shall mean the foreclosure of the Security Instrument (or any sale thereunder), whether by judicial proceedings, by virtue of any power of sale under the Security Instrument, by acceptance of a deed-in-lieu of foreclosure, or by any other conveyance of all or any portion of the Mortgaged Property by other appropriate proceedings in the nature of a foreclosure, resulting in the transfer of all or any portion of the Mortgaged Property to (i) Lender, (ii) any entity that Controls Lender, is Controlled by Lender, or is Controlled by an entity that also Controls Lender, (iii) any participating lender in the Loan (excluding Borrower or any Person that Controls Borrower, is Controlled by Borrower, or is Controlled by an entity that also Controls Borrower), and/or (iv) any agent or nominee for one or more of the Lenders described in clauses (i) through (iii) of this definition.
“Governmental Authority” and “Governmental Authorities” shall mean, respectively, each and all federal, State, county, municipal and local governmental and quasi-governmental bodies and authorities (including the United States of America, the State of California and any political subdivision, public corporation, district, joint powers authority or other political or public entity) or departments thereof having or exercising jurisdiction over Borrower, the development, construction, maintenance, leasing, and use of improvements on the Parcel. “Governmental Capacity” means the City’s governmental authority with respect to any matter related to the Development Parcel, the Property Documents, the DDA, or the DA, which shall include the regulation and entitlement of the Development Parcel pursuant to all applicable entitlements, permits, and Governmental Requirements, including enacting laws, inspecting structures, reviewing and issuing permits, and all of the other legislative and administrative or enforcement functions of each pursuant to federal, State or local law. “Governmental Requirements” shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines, conditions, instructions, and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or otherwise affecting Borrower, the Development Parcel, the improvements from time to time constructed on the Development Parcel, the development, construction, maintenance, leasing, and use of such improvements or any component thereof.
“Indebtedness” means “Indebtedness” as defined in the Security Instrument. {confirm this term is used in Security Instrument or define “Indebtedness” using the term used in the Security Instrument}
“Initial Developer” has the meaning specified in Recital A to this Agreement.

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“Landscape Agreement” has the meaning specified in Recital E to this Agreement.
“Lender” means the entity named as such in the preamble to this Agreement which is initially the holder of the Note, and any other Person subsequently becoming the holder of the Note, as the case may be.
“Loan” has the meaning specified in Recital G to this Agreement. “Loan Agreement” has the meaning specified in Recital G to this Agreement.
“Loan Default” means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an “Event of Default” {or insert comparable term from Security Instrument} as defined in the Security Instrument.
“Loan Documents” has the meaning specified in Recital H to this Agreement.
“Mortgage” means an indenture of mortgage or deed of trust encumbering any portion of the Mortgaged Property.
“Mortgaged Property” has the meaning specified in Recital D to this Agreement.
“Mortgagee” means any mortgagee, beneficiary, secured party (or any agent for one or more lenders acting in any of the foregoing capacities) under any Mortgage. “Note” has the meaning specified in Recital G to this Agreement. “Official Records” has the meaning specified in Recital A to this Agreement.
“Permitted Mortgage” means a Mortgage held by a Permitted Mortgagee. “Permitted Mortgagee” means a Person approved as a “Permitted Mortgagee” under the terms of the DDA.
“Person” means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, joint venture, firm, joint stock company, unincorporated association, Governmental Authority, or other entity, domestic or foreign. “Prevailing Party” has the meaning specified in Section 5(h). “Property Documents” has the meaning specified in Recital E to this Agreement.

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“Quitclaim Deed” has the meaning specified in Recital C to this Agreement.
“Right of Repurchase” has the meaning specified in Section 3(b). “Right of Reversion” has the meaning specified in Section 3(b). “Security Instrument” has the meaning specified in Recital H to this Agreement.
“Special Restrictions” has the meaning specified in Recital E to this Agreement.

PERMITTED MORTGAGEE. The City hereby (a) approves Lender as a Permitted Mortgagee under the Loan with respect to the Mortgaged Property, (b) approves the Security Instrument and the other Loan Documents (including, without limitation, the amount and terms of the financing to be provided thereunder and the amount of equity to be committed by the Borrower pursuant to the terms thereof, but without prejudice to the City’s right to enforce any agreements to provide equity to the Borrower under other agreements made for the benefit of the City), (c) consents to the execution and delivery of the Loan Documents by all parties thereto and (d) confirms that, after the Security Instrument is properly recorded as an encumbrance against title to the Mortgaged Property, the Security Instrument shall be deemed a Permitted Mortgage for purposes of this Agreement. If the legal or beneficial ownership of Lender changes after the Effective Date but prior to the Certificate of Compliance Date such that Lender Controls, becomes Controlled by, or becomes under common Control with Developer or Borrower, the Lender and the Mortgaged Property shall remain bound by the terms of this Agreement, but the Lender shall cease to have the benefits of this Agreement.

SUBORDINATION.

Lender hereby agrees, acknowledges and confirms that the Security Instrument is subordinate to the terms, covenants, conditions, operations, and effects of each of the DDA, the Property Documents, and the City Lien.

Lender acknowledges that, under the terms of the DDA, the City is entitled under certain circumstances to reacquire title to the fee interest in the Development Parcel through the exercise of the City’s “Right of Repurchase” and “Right of Reversion” under the DDA (which rights are referred to in this Agreement as, respectively, the “Right of Repurchase” and “Right of Reversion”).

The effect of the subordination of the Security Instrument under Section 3(a) shall apply and continue notwithstanding (i) the actual date and time of execution, delivery, recording, filing or perfection of each of the Loan Documents and each of the Property Documents and the Memorandum of DDA, and (ii) the respective rights of Lender and the City to obtain a security interest in any collateral, including any collateral other than the Mortgaged Property. For the avoidance of doubt, from and after the date on which the Lender has advanced at least $10,000 to the Borrower under the terms of the Loan Documents and until such time as the City acquires . 2.

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fee title to the Mortgaged Property pursuant to the exercise of its Right of Repurchase or Right of Reversion, the rents, issues and profits from the Mortgaged Property and any insurance proceeds or condemnation awards payable with respect to the Mortgaged Property are expressly subject to the rights and claims of the Lender under the Loan Documents.

The City represents and warrants to Lender as follows: (i) that as of the Effective Date, to the actual knowledge of the City Manager (without a duty of inquiry), the Property Documents are in full force and effect; (ii) that the Property Documents have not been modified or amended from the executed copies of the Property Documents delivered by the City to Lender concurrently with the Effective Date;2 (iii) that to the actual knowledge of the City Manager (without a duty of inquiry), the City has not received written notice that any event has occurred, which with the giving of notice or the passage of time, or both, would constitute a default under any Property Document or a City Lien Claim.

Lender represents and warrants to the City as follows: (i) that, as of the Effective Date, to the actual knowledge of Lender, the Loan Documents are in full force and effect; (ii) that the Loan Documents have not been modified or amended from the executed copies of the Loan Documents delivered by the City to Lender concurrently with the Effective Date; (iii) that, as of the Effective Date, Lender has no actual knowledge (without duty of inquiry) of any fact or circumstance, the continuation of which would constitute a default by Borrower under any Loan Document; and (iv) that, on or before the Effective Date, Lender has not received written notice that any event has occurred which, with the giving of notice or the passage of time, or both, would constitute a default under any Loan Document.

Within twenty (20) Business Days after written request by the City, but not more often than once per year (but nevertheless at any time following the occurrence and during the continuation of a default by Borrower under the Loan Documents or the Property Documents), Lender shall furnish the City with a statement, duly acknowledged and certified on behalf of Lender, confirming that to the Lender’s actual knowledge, there exists no default under the Loan Documents (or describing any default that does exist), certifying to Lender’s actual knowledge as to the other matters described in Section 3(e), and certifying to such other information with respect to the Loan Documents as the City may reasonably request, specifically including the amount of the Indebtedness. Lender agrees that upon the occurrence and during the continuance of any default (which remains in existence beyond any applicable notice and/or cure period) under the Loan Documents, Lender shall provide the City, within ten (10) Business Days of receipt of a written request from the City (which request may be made from time to time, but no more than once in any calendar quarter), with a statement of the amount of the Indebtedness owed and the then-current balance due and, until the Certificate of Compliance Date, shall keep the City reasonably informed of any actions that Lender intends to take to address such defaults, including the enforcement of any claims against Borrower, any guarantors of the Loan, or any other Person in connection with the Loan.
2 NTD: The substance of the requested representation as to defaults under the Property Documents appears in the City Estoppel, in which the City will add the Lender as a reliance party.

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Within twenty (20) Business Days after request by Lender, but not more often than once per year (but nevertheless at any time following the occurrence and during the continuation of a default by Borrower under the Loan Documents or the Property Documents), the City shall furnish Lender with a statement, duly acknowledged and certified on behalf of the City, certifying as to the matters described in Section 3(d), and certifying to such other information with respect to the Property Documents and the City Lien as Lender may reasonably request.

Lender hereby agrees that it shall not advance more than $10,000 of the Loan to Borrower until the Vertical Improvements Commencement Date (as that term is defined in the DDA) shall have occurred.

Lender hereby agrees that it shall provide written notice to the City when any material modification of the Loan Documents is proposed to be agreed to or permitted by Lender, which modification shall be subject to approval by the City to the extent required under the DDA.

City hereby agrees that it shall provide written notice to the Lender when any material modification of the Property Documents is proposed to be agreed to or permitted by the City, which modification shall be subject to approval by the Lender.

DEFAULT UNDER PROPERTY DOCUMENTS, CITY LIEN CLAIM.

In the event of a Borrower Document Breach or the existence of a City Lien Claim, (i) Lender shall have the right to cure any Borrower Document Breach or City Lien Claim in the manner and to the extent provided for in Section 4(b) (which cure shall be accepted by the City if tendered and prosecuted to completion) and the City’s ability to commence any Enforcement Action with respect to such Borrower Document Breach or City Lien Claim shall be limited as and to the extent provided for in Section 4(b), (ii) Lender shall not have any obligation to cure any Borrower Document Breach or City Lien Claim, and (iii) Lender shall not be subrogated to the rights of the City under the Property Documents or otherwise by reason of Lender having cured any Borrower Document Breach or City Lien Claim. However, the City acknowledges that all amounts advanced or expended by Lender in accordance with the Loan Documents or to cure a Borrower Document Breach or City Lien Claim shall be added to and become a part of the Indebtedness under the Security Instrument and shall be secured by the lien of the Security Instrument.

Notwithstanding the provisions of the Property Documents, if any Borrower Document Breach or City Lien Claim shall occur which, pursuant to any provision of the Property Documents or the DDA, entitles the City to take any Enforcement Action upon the occurrence of a Borrower Document Default or under the terms of the City Lien, the City shall not be entitled to take such Enforcement Action unless the City, following the expiration of any cure periods provided in the applicable Property Document or the DDA to cure such Borrower Document Breach or City Lien Claim, shall have given an Enforcement Action Notice to the Mortgagee, and the Mortgagee shall fail to do either of the following:

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within thirty (30) calendar days after delivery of such Enforcement Action Notice, cure the Borrower Document Default or City Lien Claim if the same consists of the nonperformance by Borrower of any covenant or condition of the Property Documents requiring the payment of money by Borrower to the City; or if the Borrower Document Breach is not of the type described in clause (i) of this sentence, within one hundred eighty (180) days after delivery of such Enforcement Action Notice, in Lender's sole discretion, either:
(1) cure such Borrower Document Default, if the same is capable of being cured within such one hundred and eighty (180) calendar day period; or (2) if the Borrower Document Default or City Lien Claim arises from the nonperformance by Borrower of any covenant or condition of the Property Documents which is also an event of default pursuant to the Security Instrument, commence, or cause any trustee under the Security Instrument to commence, and thereafter diligently pursue to completion, Foreclosure proceedings with respect to all or substantially all of the Mortgaged Property, and thereafter cure such Borrower Document Default within ninety (90) days following the completion of the Foreclosure, provided that except as extended by Section 4(c), such Foreclosure shall be completed within a maximum of one (1) year3 following the commencement of such proceedings.

If Lender is prohibited from commencing or prosecuting a Foreclosure by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any Bankruptcy Proceeding, the times specified in clause (ii)(2) of Section 4(b) for commencing or prosecuting a Foreclosure or other proceedings shall be extended for the period of the prohibition, provided that Lender shall have fully cured any Borrower Document Default or City Lien Claim required by clause (i) of Section 4(b) and shall continue to cure all such obligations as and when the same fall due. Notwithstanding the foregoing provisions of this Section 4(c), if the Foreclosure is not consummated on or before the date that is 18 months after the date of giving of the Enforcement Action Notice (which period shall be extended, on a day-for-day basis, during any period in which Lender is prevented from consummating the Foreclosure by reason of a Force Majeure Delay (as that term is defined in and limited by the provisions of the DDA), then at any time after such date (which shall not be further extended by any Bankruptcy Proceeding relating to Borrower), the City may (in its sole discretion and without any further notice to Lender) commence and continue any Enforcement Action.

Lender shall deliver to the City a copy of any notice sent by Lender to Borrower of a Loan Default contemporaneously with sending such notice to Borrower. Failure of Lender to send notice to the City shall not subject Lender to any liability, but Lender shall not exercise Lender's rights and remedies under the Loan Documents with respect to the Loan Default until such notice is given to the City and the City shall have had the opportunity to cure the Loan Default as provided in this Section 4(d). Following the delivery of such notice to the City, the City 3 NTD: Judicial foreclosures are exceedingly rare in California, except as a means of having a receiver appointed, following (or even before) which the lender typically begins a non-judicial foreclosure.

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shall have the right, but not the obligation, to cure (i) any monetary Loan Default that is the subject of such notice within thirty (30) days following the delivery of the notice to the City and (ii) any non-monetary Loan Default that is the subject of such notice within ninety (90) days following the delivery of the notice to the City, provided that Lender shall have the right, at its option, to commence the exercise of all available remedies (including, without limitation, commencement of Foreclosure) during such ninety (90) day period. The City shall not be subrogated to the rights of Lender under the Loan Documents by reason of the City having cured any Loan Default. Amounts paid by the City to Lender to cure a Loan Default shall not be secured by the City Lien and shall be subordinate to the Security Instrument.

Lender shall not be obligated to perform any of Borrower’s obligations under the DDA or otherwise to construct or complete any improvements or to guarantee such construction or completion thereof. Notwithstanding the foregoing, if any Person acquires title to any part of the Mortgaged Property or the improvements as a result of a Foreclosure or from Lender after the completion of a Foreclosure, then such Person or entity shall be subject to all of the Property Documents and the City Lien, provided, however, that such Person (i) shall not be personally liable for any act or omission of Borrower or any other person under the Property Documents (although such Person’s interest in the Mortgaged Property will continue to be subject to the effects of the Property Documents and the City Lien) or (ii) bound by any amendment or modification to the Property Documents made without the Lender’s prior written consent. If Lender elects to construct any improvements on the Mortgaged Property, Lender must first acquire title to the Mortgaged Property and assume all of the obligations of Borrower under all of the Property Documents, and the improvements so constructed may only be those improvements that Borrower would be permitted to construct under the DDA. In all events, Lender shall only be liable to the City under the DDA and the other Property Documents after completion by Lender of a Foreclosure, such liability shall be limited to Lender’s interest in the portion of the Mortgaged Property and improvements thereon owned by Lender, and Lender shall have no further liability under the DDA or the other Property Documents following transfer by Lender of its interest in the Mortgaged Property and improvements made in accordance with the requirements of the DDA.

Subject to the provisions of Section 4(e) and the other terms of this Agreement, Lender may pursue all rights and remedies against Borrower available to it under the Loan Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by the City. No action or failure to act on the part of Lender in the event of a Borrower Document Default or commencement of an Enforcement Action shall constitute a waiver on the part of Lender vis-à-vis Borrower of any provision of the Loan Documents or this Agreement.

Neither the limitations on the City’s exercise of any Enforcement Action nor any other provision of this Agreement shall restrict or limit the right of City to exercise its Governmental Capacity remedies.

MISCELLANEOUS PROVISIONS.

In the event of any conflict or inconsistency between the terms of the Property Documents and the terms of this Agreement, the terms of this Agreement shall control.

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12 City of Tustin/Confluent Development
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This Agreement shall be binding upon and shall inure to the benefit of the respective legal successors and permitted assigns of the City and the Lender. Neither the Borrower nor any other party shall be entitled to any benefits hereunder, whether as a third-party beneficiary or otherwise.

All notices, demands, consents, requests and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed conclusively to have been duly given (1) when hand delivered to the party for which it is intended; (2) three (3) Business Days after such notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the party for which it is intended as set forth below; (3) the next Business Day after such notice has been deposited with an overnight delivery service reasonably approved by Lender and the City (Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed so approved), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next-business-day delivery guaranteed, provided that the sender receives a confirmation of delivery from the delivery service provider; or (4) when transmitted if sent by email to the email address set forth below, provided that notices given by email shall not be effective unless either (i) a duplicate copy of such notice is promptly sent by any other method permitted under this Section 5(c) (provided that the recipient need not receive such duplicate copy prior to any deadline set forth herein), or (ii) the receiving party delivers a written confirmation of receipt for such notice either by email or any other method permitted under this Section 5(c). Any notice given by email shall be deemed received on the next Business Day if such notice is received after 5:00 p.m. Pacific Time or on a non-Business Day. Unless otherwise provided in writing, all notices with respect to this Agreement shall be addressed as follows:

Notices intended for Lender shall be addressed to:

If to Lender:

With a copy to:

Notices intended for the City shall be addressed to:

If to the City: Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
Email: [email protected]
With a copy to: City of Tustin City Attorney
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13 City of Tustin/Confluent Development
Portion of Disposition Area 8
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Attn: David E. Kendig, Esq.

Email: [email protected]
Any party, by notice given pursuant to this Section 5(c), may change the person or persons or address or addresses, or designate an additional person or persons or an additional address or addresses, for its notices, but notice of a change of address shall only be effective upon receipt.

Neither party shall refuse or reject delivery of any notice given in accordance with this Section 5(c).

Nothing herein or in any of the Loan Documents or Property Documents shall be deemed to constitute Lender as a joint venturer or partner of the City.

This Agreement shall be governed by the laws of the State of California, irrespective of California’s choice-of-law principles.

The City and Lender agree to submit to personal jurisdiction in the State of California in any action or proceeding arising out of this Agreement. The City and Lender hereby agree and consent that without limiting other methods of obtaining jurisdiction, personal jurisdiction over them in any such action or proceeding may be obtained within or without the jurisdiction of any court located in California and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the Person for which such service is intended by registered or certified mail to or by personal service at such Person’s last known address, whether such address be within or without the jurisdiction of any such court. Any legal suit, action or other proceeding arising out of or relating to this Agreement shall be instituted only in the courts of the State of California, County of Orange or the United States District Court for the Central District of California, and each of the City and Lender hereby waives any objections which it may now or hereafter have based on venue or forum non-conveniens of any such suit, action or proceeding and submits to the jurisdiction of such courts.

To the extent permitted by law, each of Lender and the City waives its respective rights to a trial by jury of any claim or cause of action based on, arising from, or related to or arising out of this Agreement, in any action, proceeding, or other litigation of any type brought by either against the other, whether with respect to any cause of action in law or equity. Lender and the City agree that any such claim or cause of action shall be tried by a court in a trial without a jury. Without limiting the foregoing, the City and Lender further agree that their respective right to a trial by jury is waived by operation of this Section 5(g) as to any action, claim, counter-claim, or other proceeding that seeks, in whole or in part, to challenge the validity or enforceability of this Agreement. This waiver shall apply to any future amendments, renewals, supplements, or modifications to this Agreement.

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14 City of Tustin/Confluent Development
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If either the City or Lender institutes any action, suit, counterclaim or other proceeding for any relief against the other, declaratory or otherwise (collectively, an “Action”), to enforce the terms hereof or to declare rights hereunder or with respect to any inaccuracies or material omissions in connection with any of the covenants, representations, warranties or obligations on the part of the other, then the Prevailing Party in such Action shall be entitled to have and recover of and from the other party all costs and expenses of the Action, including (1) the Prevailing Party’s reasonable attorneys’ fees which shall be payable at the actual contractual hourly rate for City’s litigation counsel at the time the fees were incurred, and (2) costs actually incurred in bringing and prosecuting such Action and enforcing any judgment, order, ruling or award (collectively, a “Decision”) granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert fees and costs (collectively, “Costs”) incurred in enforcing, perfecting and executing such judgment. For the purposes of this Section 5(h), Costs shall include in addition to Costs incurred in prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and expert fees and costs incurred in the following: (1) post-judgment motions and collection actions; (2) contempt proceedings; (3) garnishment, levy, debtor and third-party examinations; (4) discovery; (5) bankruptcy litigation; and (6) appeals of any order or judgment. “Prevailing Party” within the meaning of this Section 5(h) includes a party who agrees to dismiss an Action in consideration for the other party's payment of the amounts allegedly due or performance of the covenants allegedly breached, or a party who obtains substantially the relief sought by such party.

If any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, and any other application thereof, shall not in any way be affected or impaired thereby.

This Agreement shall terminate upon the earlier to occur of (i) payment of all the Indebtedness and the release of record of the Security Instrument or (ii) the Certificate of Compliance Date.

No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.

References in this Agreement to “Sections” are to the sections of this Agreement unless otherwise specified. As used in this Agreement the words “include” and “including” mean, respectively, “include, without limitation” and “including, without limitation”.

This Agreement may be amended, changed, modified, altered or terminated only by a written instrument or written instruments signed by the parties to this Agreement.

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15 City of Tustin/Confluent Development
Portion of Disposition Area 8
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
[Signature and Acknowledgement Pages to Follow]
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ATTACHMENT 24
S-1
City of Tustin/Confluent Development
Portion of Disposition Area 8
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

LENDER:

By:
__________________________________
Name:

Title:

Dated: _______________________
CITY:

CITY OF TUSTIN:

By:
__________________________________
Aldo E. Schindler, City Manager
ATTEST:
_________________________________
Erica S. Yasuda, City Clerk
APPROVED AS TO FORM:

By: ______________________________
David Kendig, City Attorney
Hepner & Myers LLP
City of Tustin Special Real Estate Counsel
By: ______________________________
Amy E. Freilich
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S-2
City of Tustin/Confluent Development
Portion of Disposition Area 8

CONSENT OF BORROWER
Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated as of___________, 20__, by and between _____________and The City of Tustin and consents to the agreement of the parties set forth herein.
{INSERT BORROWER ENTITY}
By: __________________________
Name:

Title:

Date:

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S-3
City of Tustin/Confluent Development
Portion of Disposition Area 8

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 of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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ATTACHMENT 24
S-3
City of Tustin/Confluent Development
Portion of Disposition Area 8

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.

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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ATTACHMENT 24

EXHIBIT A
City of Tustin/Confluent Development
Portion of Disposition Area 8

EXHIBIT A

LEGAL DESCRIPTION OF PARCEL

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

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ATTACHMENT 25

FORM OF SLA COVENANT

CITY OF TUSTIN OFFICIAL

BUSINESS REQUEST DOCUMENT

TO BE RECORDED AND EXEMPT FROM

RECORDING FEES PER
GOVERNMENT CODE SECTION 6103
AND SECTION 27383

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
APN 430 481 12
[SPACE ABOVE LINE FOR RECORDER’S USE ONLY]

SURPLUS LAND ACT COVENANT
(per Government Code Section 54233)
If ten (10) or more residential units are developed on the real property described on Exhibit “A” attached hereto, then not less than 15 percent of the total number of residential units developed on the property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of Section 65915 of the California Government Code.

These requirements shall be restrictions running with the land and shall be enforceable against any owner who violates such restrictions and each successor-in-interest who continues the Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 25 SLA Covenant

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violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.

CITY OF TUSTIN, a municipal corporation
Date: By: ______________________________
Aldo E. Schindler, City Manager
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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.

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ATTACHMENT 25
Exhibit “A”
City of Tustin/Confluent Development
Portion of Disposition Area 8
Exhibit “A”
The Land referred to herein below is situated in the City of Tustin, County of Orange, State of California, and is described as follows:

LOT 14, INCLUSIVE OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.

For conveyancing purposes only: APN 430-481-12
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ATTACHMENT 26
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ATTACHMENT 26

DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND

REGULATORY AGREEMENT

CITY OF TUSTIN OFFICIAL

BUSINESS REQUEST DOCUMENT

TO BE RECORDED AND EXEMPT FROM

RECORDING FEES PER
GOVERNMENT CODE SECTION 6103
AND SECTION 27383

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Clerk
[SPACE ABOVE LINE FOR RECORDER’S USE ONLY]

DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE COVENANTS AND

REGULATORY AGREEMENT

THIS DECLARATION OF AFFORDABLE HOUSING RESTRICTIVE
COVENANTS AND REGULATORY AGREEMENT (“Declaration”) is made and entered into as of _______________________, 20__, by and between the TUSTIN HOUSING AUTHORITY, a California housing authority (“Authority”) and the CITY OF TUSTIN, a municipal corporation and public body corporate and politic of the State of California (together with any successor of City, hereinafter the “City”; and the City together with the Authority sometimes collectively referred to as “Tustin”). All capitalized terms set forth in this Declaration that are not otherwise defined below have the meanings set forth in the Glossary of Defined Terms in Exhibit B.

R E C I T A L S
A. The City and CD-CW (TUSTIN) LLC, a Colorado limited liability company (“Initial Developer”) have entered into that certain Tustin Legacy Disposition and Development Agreement for Portion of Disposition Area 8, dated as of ______________, 2026 {insert reference to amendments if any} (“DDA”), a Memorandum of which was recorded in the official records of the Orange County Recorder’s Office (“Official Records”) against the Real Property substantially concurrently with the recording of this Declaration. This Declaration affects the Real Property.

B. Pursuant to the DDA, the City intends to convey to ____________, a ____________ ____ (“Initial Owner”) the successor in interest to Initial Developer under the Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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2 City of Tustin/Tustin Housing Authority/
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DDA, approximately 6.14 acres of land as legally described in that certain Quitclaim Deed for Portion of Disposition Area 8 and Covenants, Conditions and Restrictions, including Environmental Restriction Pursuant to Civil Code Section 1471 (“Quitclaim Deed”) recorded immediately following recording of this Declaration in the Official Records. The term “Real Property” as used in this Declaration means the real property conveyed to Initial Owner pursuant to the Quitclaim Deed and legally described on Exhibit A to this Declaration, excluding the rights and interests of the City reserved to the City in the Quitclaim Deed. The Real Property is comprised of the Active Adult Real Property and the AL/MC Real Property as defined in the DDA as each is generally depicted on the Site Plan attached to this Declaration as Exhibit C.

C. Upon acquisition of the Property, the DDA obligates the Owner to develop the Active Adult Project (further defined below) consisting of an age restricted (55 years or older) residential active adult and independent living development with 172 Units (consisting of 124 base Units and 48 density bonus Units), including one manager Unit (which may be a Lower Income Unit), including approximately 26 Lower Income Units, with the final number of such Units to be shown on the Approved Plans, provided that in no event shall the number of Lower Income Units be less than fifteen percent (15%) of the total Units constructed on the Active Adult Real Property.

The DDA also obligates the Owner to develop the AL/MC Project, consisting of a commercially zoned assisted living and memory care facility upon the AL/MC Real Property. As further set forth below, this Declaration shall remain in effect as to the Active Adult Real Property until the termination of the Qualified Period and shall remain in effect as to the AL/MC Real Property until issuance and recording by the City in the Official Records of the Final Certificate of Compliance; provided, however, that if the Final Parcel Map is recorded in the Official Records prior to the recording by the City in the Official Records of the first Certificate of Compliance, the AL/MC Real Property shall be released from this Declaration concurrently with issuance and recording by the City in the Official Records of the Certificate of Compliance for the Active Adult Project.

D. Pursuant to the Specific Plan and City Ordinance No. _____, City Council Resolution No. CC ______ and Planning Commission Resolutions No. _____ and ______, the City has approved the following entitlements for the Real Property (“Entitlements”): (i) Design Review approval (Design Review application ______________); (ii) Tentative Parcel Map No. 2025-151 approved pursuant to the Subdivision Map Act and the City Code (“Tentative Parcel Map”); (iii) a statutory Development Agreement (2025-0001) between the City and Initial Developer dated _______ and recorded in the Official Records on ____________ as Instrument No. ____________ (“Development Agreement”); (iv) the density bonus application, density bonus exceptions and related concessions and incentives authorized under Tustin City Code (“City Code”) Section 9123 related to the provision of affordable housing units in compliance with Govt.

Code Section 54220-54234 and 65915; (v) Conditional Use Permit (CUP 2025-0012); and (vi) any other approvals to the extent required by the City Code to permit the uses contemplated by the Project.

E. Resolution No. CC _______, concurrently adopted by the City, requires that a housing incentive agreement pursuant to City Code Section 9142 (“Housing Incentive Agreement”) be executed to ensure implementation of the Affordable Housing Requirements of the Specific Plan and the City’s Density Bonus Ordinance with respect to the Project, compliance with California Health and Safety Code Section 33413(b)(2), and that the Units constructed on the Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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3 City of Tustin/Tustin Housing Authority/
Confluent /Portion of Disposition Area 8
Active Adult Real Property comply with the rental, occupancy and other requirements of this Declaration for its Term. This Declaration serves as the Housing Incentive Agreement required under the City Code.

F. The development envelope, Unit count, concessions and restrictions authorized by the DDA and the Entitlements for the Real Property were determined based on the following facts and the application of the Density Bonus Laws:
(1) Government Code Sections 65915 to 65918 (“Density Bonus Statute”) and the City Code Article 9, Chapter 1 (“Density Bonus Ordinance” and collectively with the Density Bonus Statute, “Density Bonus Laws”) provide certain density bonuses and other concessions and waivers to applicants restricting a portion of the base Unit count as affordable housing. City Code Section 9122 requires that the City grant a density bonus of up to thirty-eight and three-quarters percent (38.75%) (“Mandatory Density Bonus”) when an applicant proposes to restrict a minimum of twenty-one percent (21%) of the base Unit count permitted as Lower Income Units and City Code Section 9123 provides that a proposed development that exceeds that percentage is entitled to concessions or incentives unless otherwise determined by the City pursuant to the Density Bonus Ordinance.
(2) Prior to calculation of density bonuses under the Density Bonus Laws, the maximum residential density that is to be constructed collectively on the Active Adult Real Property is 124 base Units.
(3) Pursuant to the applications for Entitlements submitted by Initial Developer and processed by the City, Initial Developer has proposed to construct 26 Lower Income Units on the Active Adult Real Property comprising approximately twenty-one percent (21%) of the base Units.
(4) Applying the Density Bonus and as further set forth in the Entitlements, density bonus Units may be constructed on the Active Adult Real Property provided that at least the minimum number of Lower Income Units are constructed on the Real Property upon the terms and conditions set forth in the DDA, wherein not less than fifteen percent (15%) of the total Units constructed on the Active Adult Real Property shall be Lower Income Units and shall be made available for rental only to Lower Income Households. The Lower Income Units are to be operated in accordance with this Declaration during the Term of this Declaration. (5) Development of the Project, including the AL/MC Project, has received the benefit of certain Density Bonus concessions and waivers and therefore is subject to the terms of this Declaration.

NOW, THEREFORE, Tustin hereby covenants and declares that this Declaration is made pursuant to and in accordance with the Density Bonus Laws, the provisions of this Declaration comply with the Specific Plan, the Density Bonus Ordinance, California Government Code Section 65915, and California Health and Safety Code Sections 33334.3, 33413(b) and 33334.14, this Declaration comprises the Housing Incentive Agreement required by Tustin as described in Recital E and complies with the requirements of City Code Section 9142, and Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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accordingly, and for the purpose of assuring development, maintenance, management, leasing and use of the Real Property in accordance with the requirements of the Specific Plan, the Entitlements, and the Density Bonus Laws, for the Term of this Declaration, the Real Property is now held and shall hereafter be held, transferred, conveyed, sold, leased, subleased, encumbered, mortgaged, used, occupied and improved subject to the covenants, conditions and restrictions herein set forth, each and all of which is and are for, and shall inure to the benefit of and pass with, the Real Property and every portion of or interest in the Real Property and the Project Improvements and shall apply to each Owner and the covenants, conditions and restrictions set forth in the Declaration shall run with the Real Property, shall inure to the benefit of Tustin and its Governmental Successors and shall burden and be binding upon the Real Property and Owner and each and every Person claiming by, through or under any Owner, including each and every Successor Owner, each End User, and where not otherwise specified, excluding any End Users.

Tustin hereby further declares as follows:

1. Effect of Declaration; Affected Property.

1.1. Effect of Declaration. To the specific extent, and subject to the limitations, more specifically set forth below, Owner and all Persons claiming by, through or under such Owner and End User, shall be subject to and shall comply with the Restrictions set forth in this Declaration. This Declaration and all and each of the provisions of this Declaration shall become effective upon recordation in the Official Records and shall remain in full force and effect thereafter except as expressly provided herein. The provisions of this Declaration are intended to survive any close of escrow and the expiration or termination of the DDA and the Development Agreement and shall not merge with any deed.

1.2. Property Affected by this Declaration. The “Property” consists of the Real Property together with (i) all existing improvements, if any, located on the Real Property as of the date of conveyance to Initial Owner pursuant to the Quitclaim Deed; (ii) all appurtenances pertaining to the Real Property or such improvements; (iii) all permits, licenses, approvals and authorizations issued by any Governmental Authority for development of the Project prior to the recording in the Official Records of the Quitclaim Deed; and (iv) the right to construct a maximum of 172 Units (consisting of 124 base Units and 48 density bonus Units) on the Real Property and (v) City’s rights in the intangible property, all as further described in the Quitclaim Deed and as restricted by requirements of the Quitclaim Deed and this Declaration.

1.3. Restrictions Run With the Land. Tustin hereby declares that it has executed and recorded this Declaration against the Real Property to set forth the obligations of each and every Owner of the Real Property or any portion thereof regarding the Restrictions and to cause said Restrictions to run with the land for the benefit of Tustin for the Term set forth in this Declaration in accordance with Section 9.1. Accordingly, during the Term, and except as specifically authorized by this Declaration or approved by the City in its sole discretion, each Owner must comply with this Declaration with respect to the construction, leasing, subleasing, Transfer, and management of any Project Improvements or use of the portion of the Real Property and/or Improvements owned or leased by such Owner.

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2. Restrictions on Use. The development, use, conveyance, Transfer, leasing, subleasing, maintenance, repair and replacement of the Project Improvements on the Real Property shall be subject to all obligations, covenants, agreements and indemnities set forth herein (collectively referred to herein as the “Restrictions”).

3. Local, State and Federal Law. Each Owner shall carry out the construction described and all other terms and conditions in this Declaration in connection with the Real Property in conformity with the City Code, the Specific Plan, the Entitlements and all applicable Governmental Requirements.

4. Additional Covenants.

4.1. Authorized Construction; Construction of Lower Income Units and Manager Units; No Other Uses. During the Term, development of the Real Property shall be restricted to construction of, on the Active Adult Real Property, age restricted (55 years or older) active adult and independent living Units and on the AL/MC Real Property, senior congregate care comprised of assisted living and memory care Rooms (and including the additional Project Improvements authorized by the DDA) only and Owner shall concurrently with construction of such active adult Units construct the required number of Lower Income Units and a maximum of one (1) managerial Unit (which may, at the discretion of Owner, be a Lower Income Unit) on the Active Adult Real Property. The required Lower Income Units shall be rented to, occupied by, or held available only for rental to Qualified Households at an Affordable Rent subject to the occupancy restrictions contained in this Section 4. Other uses (e.g., nonrestricted residential and commercial uses) are prohibited without the consent of the City as set forth in the Special Restrictions.

4.2. Development Plan; Location, Unit Size and Mix of Lower Income Units.

During the Qualified Period, all Lower Income Units shall be located on the Active Adult Real Property and occupied in a manner consistent with this Declaration. Prior to and as a condition to issuance of a building permit for and commencement of construction of any building on the Active Adult Real Property: (a) the applicable Owner shall submit for review and approval by the Program Administrator a Unit mix plan for the Active Adult Real Property that shall establish the Unit size and bedroom mix of Lower Income Units to be constructed, together with a proposed schedule for completion and occupancy of the targeted Units and (b) upon approval by Program Administrator of the Unit mix plan for each applicable building, Owner shall execute and record in the Official Records a certificate in the form and substance of the certificate attached hereto as Exhibit E (“Unit Requirements Certificate”) applicable to such building and shall provide evidence of such recording to the City. Program Administrator’s approval rights under this Section are limited to confirming the Unit mix plan complies with the terms of this Declaration and Approved Plans.

4.3. Limitations on Tenants and Occupancy of Lower Income Units. Owner and each and every Person claiming by, through or under such Owner shall cause Lower Income Units to be rented to Qualified Households and in accordance with the following terms:

4.3.1. Rent May Not Exceed Affordable Rent. Owner may not charge or collect any Rent Consideration for a Lower Income Unit in excess of an Affordable Rent for such Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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Lower Income Unit.

4.3.2. Occupancy. To the fullest extent allowed by law, only one Qualified Household shall be permitted to occupy and reside in a Lower Income Unit at any one time. The Lower Income Unit shall be used as the principal residence of at least one (1) adult member of the Qualified Household during the term of any rental agreement and for no other purpose. To the fullest extent allowed by law, neither Owner nor a Qualified Household may lease, sublease, or grant a license or any other right to any other persons to occupy the Lower Income Unit, or permit persons who are not members of the one Qualified Household to occupy the Lower Income Unit.

4.3.3. Persons Occupying. The number of persons permitted to occupy the Lower Income Unit shall not exceed the occupancy permitted by law or the following maximum occupancy, whichever is more restrictive, but subject in all events to the requirements of applicable law: two persons per bedroom plus one person (i.e., for 1-bedroom Units, no more than 3 occupants; for 2-bedroom Units, no more than 5 occupants, and for 3-bedroom Units, no more than 7 occupants.)

4.3.4. Basis for Selection of New Qualified Households. If multiple households apply to Owner to occupy a vacant Lower Income Unit, and if such prospective tenants are all Qualified Households, then Owner shall lease the Lower Income Unit to one such Qualified Household on a first-come, first-priority basis, which shall be determined by the waiting list maintained by Owner following the process set forth in Section 4.3.6.

4.3.5. Failure to Lease; Notification to City. Owner shall notify the Program Administrator of any Lower Income Unit that fails to be leased to a Qualified Household within one hundred twenty (120) calendar days after the issuance of a certificate of occupancy (“Initial Leasing Period”).

4.3.6. Interest List. During the Initial Leasing Period, Owner shall create and maintain an “interest list,” which includes all those potential tenants who have expressed an interest in leasing a Lower Income Unit and, to the extent then verified by Owner, who are Qualified Households. The interest list shall be maintained with an order of priority based on a first-come, first-priority basis.

4.3.7. Continuation of Occupancy. Each Qualified Household which occupies a Lower Income Unit at the expiration of the Qualified Period and remains a Qualified Household for the Lower Income Unit it occupies on such date and otherwise complies with all of its rental agreement obligations shall be permitted to continue to occupy such Unit for a period of one (1) year, beginning on the first day after the expiration of the Qualified Period; provided that the annual rent increase during such one (1) year period shall not exceed an amount allowed under applicable law. Except for the continued right of occupancy as provided in the preceding sentence, upon the expiration of the Qualified Period, the Lower Income Units shall no longer be subject to any other provisions of this Declaration.

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4.3.8. Written Notice of Rent Increase. Owner shall deliver written notice to all occupants of the Lower Income Units stating each rent increase and stating that such rent increase has been made pursuant to all applicable Governmental Requirements.

4.3.9. Determination Prior to Rental Agreement. Prior to entering into a rental agreement with a tenant for a Lower Income Unit, Owner shall first determine that such tenant is a Qualified Household in accordance with Section 4.9.

4.3.10. Voucher Holders. Owner shall not refuse to lease a Lower Income Unit to a Qualified Household if such Qualified Household is a holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or Section 8 Rental Voucher Program or to the holder of a comparable document evidencing participation in a tenant-based assistance program, solely because of the status of the Qualified Household as a holder of such certificate of family participation, rental voucher, or comparable tenant-based assistance document.

4.3.11. Vacancies. Following issuance of a certificate of occupancy for any building containing Lower Income Units, Owner shall use its commercially reasonable efforts to fill with a Qualified Household each vacancy in a Lower Income Unit as soon as possible following the date that such Lower Income Unit becomes vacant so that at all times after occupancy there are Qualified Households occupying all of the Lower Income Units on the Active Adult Real Property. The Lower Income Units may change their type from time to time (such as a Very Low Income Unit becoming a Low Income Unit) in accordance with this Declaration. Owner is not required to maintain a particular Lower Income Unit in a particular location on the Active Adult Real Property. However, Owner shall use its commercially reasonable efforts to lease vacant Lower Income Units so that the number, income level, and number of bedrooms in all of the Lower Income Units at the Active Adult Real Property most closely match the requirements in the Unit Requirements Certificate.

4.4. Rental Rates and Changes to Rent.

4.4.1. Maximum Monthly Affordable Rent. Each Lower Income Unit shall be leased to a Qualified Household for monthly Rent Consideration in an amount not to exceed the applicable Maximum Monthly Affordable Rent for such Lower Income Unit, calculated in accordance with the definition for Maximum Monthly Affordable Rent in Exhibit B and as described in this Section 4.4. The Maximum Monthly Affordable Rent for each Lower Income Unit shall initially be calculated as set forth in this Section and shall be determined thereafter when new income limits are published. Owner shall deliver to the Program Administrator their proposed list of Maximum Monthly Affordable Rent for each Lower Income Unit (“Proposed List”) no later than the Outside Rent Calculation Date. The “Outside Rent Calculation Date” for each calendar year means the date that is sixty (60) calendar days after the date on which the HCD publishes its Income Limits for California counties (“Annual List”) during such calendar year.

The Program Administrator shall have thirty (30) calendar days after receipt of the Proposed List to approve the Proposed List or to provide Owner with suggested corrections to the Proposed List so that the Proposed List will comply with the Maximum Monthly Affordable Rent permitted under this Declaration. Owner shall modify the Proposed List as necessary to comply with this Declaration and resubmit the same to the Program Administrator for approval to address any Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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corrections required to comply with this Declaration. If the Program Administrator fails to approve or provide corrections to a Proposed List within thirty (30) calendar days after receipt of the same, then the Proposed List shall be deemed to be approved on the thirty-first day after receipt by the Program Administrator; but only to the extent the Proposed List otherwise complies with the Maximum Monthly Affordable Rent that would be permitted under this Declaration (the approved, or deemed approved, list being referred to herein as the “Approved List”). Owner shall not charge Rent Consideration for a Lower Income Unit that exceeds the applicable Maximum Monthly Affordable Rent for such Lower Income Unit set forth on the most recently approved (or deemed approved) Proposed List. The Maximum Monthly Affordable Rent for Lower Income Units shall comply with the applicable subsection of Health and Safety Code Section 50053(b)(1) as modified by Section 50053(b)(2), or amendments thereto (“HSC Rents”). HSC Rents are calculated using the Orange County Median Income.

4.4.2. Adjustments to Rent. Owner shall, in accordance with Section 4.9, re-examine the income of each Qualified Household that is a tenant living in a Lower Income Unit at least annually to confirm that such tenant household remains a Qualified Household pursuant to tenant income certification obtained, as amended from time to time, to the extent applicable. The Maximum Monthly Affordable Rent shall be recalculated by Owner and reviewed and approved by the Program Administrator annually pursuant to the terms of Section 4.4.1, and may change as changes in the income limits, or the monthly allowance for utilities and services warrant and shall be set forth in the Approved List. Owner shall not impose on a tenant an increase in rent if that increase is not permitted to be imposed under the rental agreement between Owner and the tenant.

Owner shall provide not less than thirty (30) calendar days prior written notice to affected tenants before implementing any increase in rents. In establishing Maximum Monthly Affordable Rent for each Qualified Household in a Lower Income Unit, Owner shall not exceed the rental amounts specified on the then-current Approved List.

4.5. Maximum Monthly Affordable Rent. Notwithstanding the other provisions of this Section 4, the Maximum Monthly Affordable Rent for each Lower Income Unit shall not be less than the Maximum Monthly Affordable Rent for such Lower Income Unit that Owner would have been permitted to charge for such Lower Income Unit on the date of this Declaration, assuming that such Lower Income Unit was occupied by a Qualified Household of a family size appropriate to the Unit, which shall mean two persons in a one-bedroom Unit, three persons in a two-bedroom Unit, and four persons in a three-bedroom Unit in such Lower Income Unit consistent with the requirements of Health & Safety Code Section 50052.5(h) as amended from time to time. The Maximum Monthly Affordable Rent shall be as set forth in Exhibit F.

4.6. Utility Allowances. The Program Administrator shall annually provide Owner with a schedule establishing the monthly allowances for utilities and services as published by the Orange County Community Resources / Orange County Housing Authority or their equivalent. Owner shall deduct the appropriate utility allowances that the Qualified Household is responsible for from the maximum rent the Owner can charge as established on the then-current Approved List.

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4.7. Increases in Tenant Income.

4.7.1. Over-Income Very Low Income Units. If, as a result of the annual re-examination of incomes required pursuant to Section 4.9.5, Owner determines that a household occupying a Very Low Income Unit or a Low Income Unit has income that exceeds one hundred percent (100%) of the then applicable income limit for such Unit, but does not exceed one hundred forty percent (140%) of the then applicable Income limit for such Unit, then the Unit occupied by such household shall continue to be treated as a Very Low Income Unit or a Low Income Unit, as applicable. If, as a result of the annual Income Verification required pursuant to Section 4.9.5, Owner determines that a household occupying a Very Low Income Unit or a Low Income Unit has Income that exceeds one hundred forty percent (140%) of the then applicable Income limit for such Unit, then such Unit shall be an “Over-Income Unit”. An Over-Income Unit shall be deemed to be a Lower Income Unit until the time of the next required Income Verification. In such event, Owner shall lease the next available Lower Income Unit (regardless of its previous characterization) to a Qualified Household that is a Very Low Income Household if the OverIncome Unit was previously a Very Low Income Unit. As an example of the foregoing and not in limitation thereof, if a tenant is a Very Low Income Household when such tenant first leased a Very Low Income Unit, and such tenant subsequently provides an Income Verification that exceeds one hundred forty percent (140%) of the then-applicable Income limit for a Very Low Income Unit, then the Unit occupied by such tenant shall be deemed to be a Low Income Unit until the next Income Verification is required.

4.7.2. Over-Income Lower Income Units. If, as a result of the annual Income Verification required pursuant to Section 4.9.5, Owner determines that a household occupying a Lower Income Unit has income that exceeds one hundred forty percent (140%) of the then applicable Income limit for such Unit, then the Unit occupied by such household shall remain a Lower Income Unit until the next annual Income Verification.

4.7.3. Vacant Units. At all times, Owner shall attempt to lease vacant Lower Income Units on the Active Adult Real Property so that the number, income level, and number of bedrooms in all of the Lower Income Units most closely match the requirements set forth in the recorded Unit Requirements Certificate. Notwithstanding anything in this Section 4.7 to the contrary, at all times during the Qualified Period, there shall be the greater of 26 Lower Income Units or 15% of the Units rented to (or available for rent to) Qualified Households at the Active Adult Project in accordance with the requirements of this Section 4. A vacant Lower Income Unit will continue to be treated as a Lower Income Unit provided that reasonable attempts are made to rent the Unit.

4.7.4. Allocation of Units. Notwithstanding the foregoing provisions, it is the intent of this Declaration that all of the Lower Income Units shall be allocated among the applicable levels of affordability and Unit mix as provided in the Unit Requirements Certificate.

In the event the application of the provisions in this Section 4 results in an allocation of Lower Income Units different from that provided in the Unit Requirements Certificate, Owner shall lease the next available Lower Income Unit to a Qualified Household (whether Lower Income Household or Very Low Income Household, as the case may be) to correct the allocation.

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4.8. Rental Agreements for Lower Income Units.

4.8.1. Rental Agreement.

4.8.1.1. The rental agreement for a Lower Income Unit must be for an initial term of not less than twelve (12) months unless the Program Administrator provides prior written approval.

4.8.1.2. The rental agreement for a Lower Income Unit shall prohibit the tenant from subleasing or licensing the premises and to the fullest extent allowed by law shall prohibit the tenant from allowing any persons who are not members of the Qualified Household from occupying the Unit and from exceeding the occupancy limitations set forth in this Declaration.

4.8.1.3. To the extent permitted by law (including, without limitation, California Civil Code Section 1954), the rental agreement for a Lower Income Unit shall include the right of Tustin to inspect the interior of any Lower Income Unit two times per year during normal business hours with reasonable prior written notice of not less than forty-eight (48) hours.

4.8.2. Tenant Protections. The rental agreement for a Lower Income Unit may not contain any of the following provisions:

4.8.2.1. Any agreement by the tenant to admit guilt or to admit a judgment in favor of Owner in a lawsuit brought in connection with the rental agreement.

4.8.2.2. Any agreement by the tenant that Owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the Unit after the tenant has moved out of the Unit. Owner may dispose of such personal property in accordance with applicable state law.

4.8.2.3. Any agreement by the tenant not to hold Owner or its agents legally responsible for any action or failure to act by Owner or its agent, whether intentional or negligent.

4.8.2.4. Any agreement of the tenant that Owner may evict the tenant or household members without notice to the tenant.

4.8.2.5. Any agreement by the tenant that Owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties.

4.8.2.6. Any agreement by the tenant to waive any right to a trial by jury.

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4.8.2.7. Any agreement by the tenant to waive the tenant’s right to appeal, or to otherwise challenge in court, a court decision in connection with the rental agreement.

4.8.2.8. Any agreement by the tenant to pay attorney’s fees or other legal costs in a court proceeding by Owner against the tenant. The tenant, however, may be obligated to pay court costs if the landlord is the prevailing party.

4.8.3. Termination of Tenancy. Owner may not terminate the tenancy or refuse to renew the rental agreement of a Qualified Household except for violation of the terms and conditions of the rental agreement; for violation of applicable federal, state, or local law; or for other good cause as established by state and local laws. Any termination or refusal to renew must be preceded (by not less than three (3) calendar days, or such longer amount of time to the extent required by this Declaration or law) by Owner’s service upon the tenant of a written notice specifying the grounds for the action.

4.9. Qualified Households; Records and Reports.

4.9.1. Certificate Regarding Affordability Commencement Date. Within thirty (30) calendar days after the Affordability Commencement Date has occurred with respect to the Active Adult Project, Owner shall execute and deliver to the Program Administrator a copy of a certificate in the form and substance of the certificate attached to this Declaration as Exhibit D (“Qualified Period Certificate”) identifying the Affordability Commencement Date and the last day of the Qualified Period. The City shall record a copy of such certificate against title to the Real Property in the Official Records. Failure of Owner to timely execute and deliver the Qualified Period Certificate after applicable notice and cure periods shall be a default by Owner.

4.9.2. Initial and Annual Verification of Income. Prior to considering a household as a tenant for a Lower Income Unit, Owner shall obtain from the applicant a complete verification with all required documentation of income qualification in accordance with the requirements of this Declaration or, such other income verification procedure as may be reasonably approved in writing by the Program Administrator (“Verification of Income”). Prior to the renewal or extension of the term of any rental agreement for a Lower Income Unit, Owner shall obtain from the Qualified Household a current Verification of Income.

4.9.3. Verification Procedure. Owner shall make a diligent and goodfaith effort to verify that the information provided by an applicant in the Verification of Income is accurate by taking the following steps, as a part of the verification process: (a) copy of driver’s license or government issued identification card for all adult household members; (b) obtain pay stubs for the most recent one-month period; (c) obtain income W-2 Wage and Earning Statements, 1099’s and other statements of income, as applicable, and tax returns for the most recent tax year; and (d) obtain any other information or documentation reasonably necessary to determine whether the applicant is a Qualified Household. In the alternative, if approved by the Program Administrator, the following may be submitted (i) proof of identity and (ii) either (a) income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (b) if the applicant is Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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unemployed, does not have income tax returns or is otherwise unable to provide other forms of verification as required above, obtain another form of independent verification satisfactory to the Program Administrator. If applicable law prohibits Owner from requiring any particular documentation or information described above, Owner may use another reasonable method of verification approved in writing by the Program Administrator.

4.9.4. Qualified Household. A “Qualified Household” is any household of persons that has completed the Verification of Income qualification and for which Owner, in good-faith pursuant to Section 4.9.3, has confirmed that such household is a Lower Income Household, calculated using the definition of Income set forth in Exhibit B.

4.9.5. Files. Owner shall obtain, complete, and maintain on file Verifications of Income qualification from each Qualified Household that executes a rental agreement for a Lower Income Unit, including (a) a Verification of Income dated within thirty (30) calendar days prior to the date of initial occupancy by such Qualified Household and (b) thereafter, annual Verifications of Income, which must be dated within thirty (30) calendar days of the annual renewal of their rental agreement, or such other date as may be mutually agreed upon by the Program Administrator and Owner. Annual Verifications of Income shall be obtained by Owner for each tenant occupying a Lower Income Unit not less than once in every twelve-month period following such Qualified Tenant’s occupancy of a Lower Income Unit.

4.9.6. Certificate of Continuing Program Compliance. The Certificate of Continuing Program Compliance, in the form provided by Program Administrator or otherwise approved by Program Administrator, along with copies of the most recent Verification of Income forms for ten percent (10%) of the Lower Income Units occupied by Qualified Households is to be filed with the Program Administrator (subject to confidentiality and privacy restrictions in accordance with applicable law) in the month in which the Affordability Commencement Date has occurred. During the Initial Leasing Period, the Program Administrator may request to review additional Verification of Income forms. After the Affordability Commencement Date, the Certificate of Continuing Program Compliance, along with copies of the most recent Verification of Income forms for five percent (5%) of the Lower Income Units occupied by Qualified Households, shall be delivered by Owner to the Program Administrator no later than July 1 of each calendar year during the Qualified Period.

4.9.7. Records. Owner will maintain complete and accurate records pertaining to the Lower Income Units and will permit (during normal business hours on reasonable prior written notice) any duly authorized representative of Tustin to inspect the books and records of Owner pertaining to any of the following: (a) the occupancy of the Lower Income Units; and (b) the Verification of Income.

4.9.8. Contents of Certificate. Owner will prepare and submit to the Program Administrator no later than July 1 of each calendar year during the Qualified Period, a Certificate of Continuing Program Compliance executed by Owner with the following information:

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4.9.8.1. A written occupancy summary listing the number of the Units on the Active Adult Real Property that were occupied by Qualified Households during such period and such other tenant information as may be reasonably required as stated on the form of the Certificate of Continuing Program Compliance acceptable to the Program Administrator;

4.9.8.2. A statement that either (a) no uncured default has occurred under this Declaration or (b) a default has occurred; in which event the Certificate of Continuing Program Compliance shall describe the nature of the default in detail and set forth the measures being taken by Owner to remedy such default; and

4.9.8.3. Copies of the most recent Verification of Income forms from five percent (5%) of the Qualified Households.

4.9.9. Rental Agreement Provisions. Each rental agreement for a Lower Income Unit shall contain a provision to the effect that Owner has relied on the Verification of Income and supporting information supplied by the tenant in determining qualification for occupancy of the particular Lower Income Unit and that any material misstatement in such verification (whether or not intentional) will be good cause for termination of such rental agreement. Each such rental agreement shall also provide that the tenant’s income is subject to annual verification in accordance with this Section 4.9.

4.9.10. Termination of Declaration. This Declaration shall terminate (i) as to the Active Adult Real Property upon termination of the Qualified Period and (ii) as to the AL/MC Real Property, concurrently with issuance and recording by the City in the Official Records of the Final Certificate of Compliance; provided, however, that if the Final Parcel Map is recorded in the Official Records prior to the recording by the City in the Official Records of the first Certificate of Compliance, the AL/MC Real Property shall be released from this Declaration, and this Declaration shall terminate as to the AL/MC Real Property, concurrently with issuance and recording by the City in the Official Records of the Certificate of Compliance for the Active Adult Project. If requested by the Owner of the portion of the Real Property as to which this Declaration has terminated, the City shall execute and record in the Official Records a memorandum confirming such termination.

4.10. Payment of Fees and Tax Equivalent Payments.

4.10.1. Administrative Fee. On April 1 following the Affordability Commencement Date and, on April 1 every year thereafter through the Qualified Period, the Owner shall pay to the City an administrative fee (“Administrative Fee”) in an amount equal to $800 (Eight Hundred Dollars) annually (as such amount will be increased as set forth below). The Administrative Fee shall increase each calendar year by two percent (2%) and the fee shall be paid each year until the end of the Qualified Period.

4.10.2. Payment of Administrative Fee. The Administrative Fee shall be payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300 Centennial Way, Tustin, California 92780, or at such other place or places as the City from time to time may designate by written notice to Owner.

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4.10.3. Interest on Late Administrative Fees. If the Administrative Fee is not paid when due then Owner shall also pay to the City interest on the unpaid Administrative Fee calculated at the rate of eight (8%) simple interest per annum, until paid.

5. Non-Discrimination Covenants.

5.1. Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, race, color, creed, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or in development of the Project, nor shall the applicable Owner or any Person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, the Project Improvements or in development of the Project or any part thereof. Any deed, lease, or contract shall contain the following respective provisions:

5.1.1. In deeds:
“The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, race, color, creed, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land.”

5.1.2. In rental agreements:
“The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions:

That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, race, color, creed, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased.”
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5.1.3. In contracts:
“There shall be no discrimination against or segregation of any person or group of persons on account of sex, race, color, creed, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land.”

6. Maintenance. Owner shall maintain the Real Property at its sole cost, in accordance with the applicable requirements of the Special Restrictions and that certain Landscape Installation and Maintenance Agreement each recorded in the Official Records with respect to the Real Property substantially concurrently with the recording of this Declaration in the Official Records; provided, however, that the liability of Owner for any breach of the applicable requirements of the Special Restrictions or the Landscape Installation and Maintenance Agreement shall be as set forth in such document and not create any separate liability of Owner under this Declaration. Any property management or operating agreement shall require such property manager or operator to expressly acknowledge and agree to comply with this Declaration, and shall be subject to approval by the Program Administrator.

7. Assignment, Transfer and Transfer of Control.

7.1. Transfers and Transfer of Control During Term. The delivery by the City of written consent required under Section 7.1.1 and under Section 7.1.2 to any Transfer of all or any portion of the Property or Project Improvements or interests therein or to any Transfer of Control shall constitute conclusive evidence that the Transfer or Transfer of Control, as applicable, is not in violation of this Section 7.1. Authority hereby delegates its consent with respect to all Transfers and Transfer of Control to the City and agrees that any consent by the City shall also be a consent by the Authority.

7.1.1. Limitations on Transfer Prior to Certificate of Compliance. Until recording by the City in the Official Records of a Certificate of Compliance as to a portion of the Real Property, no Owner shall Transfer such portion of the Real Property or any portion thereof, or Project Improvements thereon or its interest therein or in the Project or engage in a Transfer of Control, except in compliance with the requirements of the DDA, including Article 2 and, if applicable, Article 17, which provisions, and all definitions and other provisions of the DDA required to interpret and apply such provisions, shall be deemed to be incorporated into this Section by this reference and to be in effect whether or not the DDA is then in effect or has terminated.

Any purported Transfer or Transfer of Control that does not comply with the requirements of Article 2 and, if applicable, Article 17 of the DDA shall, at the election of the City, be null and void.

7.1.2. Limitations on Transfer Following Certificate of Compliance.

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of Compliance, or of ownership of the Project Improvements thereon or its interest therein or in the Project, and any Transfer of Control by the Owner thereof, shall in each case require the consent of the Program Administrator, which shall not be withheld or delayed if the following conditions are satisfied: (a)(i) the Owner of the portion of the Real Property being transferred is not in default under this Declaration or the purchaser or assignee undertakes to cure any default of the applicable Owner to Program Administrator’s reasonable satisfaction; and (ii) either (1) the transferee has at least five (5) years’ experience in the operation and management of comparable rental housing projects, and at least five (5) years’ experience in the operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (2) the transferee has retained a property management firm with the experience and record described in clause (ii)(1) above, and (iii) the transferee does not have pending against it, and does not have a recent history (i.e., within the prior five (5) years) of, significant and material building code violations concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies; (b) if a Transfer, the execution by the transferee of any document reasonably requested by the City with respect to the assumption of the Owner’s obligations under this Declaration to the extent arising after such Transfer; and (c) the receipt by the City of all fees and/or expenses then currently due and payable to the City under this Declaration with respect to the portion of the Real Property being transferred. Owner shall not enter into an operating agreement or a property management agreement with an operator or a property management firm for the management of the Real Property unless that firm has the experience and record described in clause (ii)(1) above.

7.1.3. In addition to the foregoing, no portion of the Real Property shall be conveyed separately from any other portion of the Real Property unless a Final Parcel Map has then been recorded in the Official Records or such conveyance otherwise complies with the requirements of the California Subdivision Map Act and the Tustin City Code.

7.2. Assignment of Obligations. If the Program Administrator approves the sale of the Real Property or the Project Improvements or any portion thereof or interest therein, Owner shall cause the purchaser of such portion of the Real Property to assume in writing all of the obligations of Owner under this Declaration with respect to such transferred interest and to the extent arising after such Transfer pursuant to an assignment and assumption agreement reasonably approved by the Program Administrator (“Assignment Agreement”), Owner and the purchaser shall cause the Assignment Agreement to be recorded in the Official Records against the purchaser’s portion of the Real Property.

8. Release of Owner Upon Transfer.

8.1. Prior to Termination of Declaration as to AL/MC Real Property. Until this Declaration terminates as to the AL/MC Real Property and the AL/MC Project, the Initial Owner and each and every Successor Owner of the Real Property shall remain jointly and severally liable for the obligations of Owner under this Declaration with respect to the Real Property unless released in writing by the City in accordance with this Declaration and the DDA. Notwithstanding the foregoing, the then-Owner shall be released from all obligations under this Declaration if the Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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Real Property is acquired by the City pursuant to Article 16 of the DDA, except with respect to each indemnity and each breach or default of this Declaration that Accrued during such Owner’s period of ownership.

8.2. Following Termination of Declaration as to AL/MC Real Property. As to matters Accruing after the later of the recording of the Final Parcel Map in the Official Records and termination of this Declaration as to the AL/MC Real Property, the Owner of the Active Adult Parcel shall be liable with respect to each indemnity and each breach or default under this Declaration for the period of its ownership and shall be released as to matters Accruing subsequent to its period of ownership upon its assignment to and the assumption of its obligations under this Declaration by a Successor Owner.

9. Covenants and Restrictions to Run with the Land.

9.1. Covenants That Run With the Land. This Declaration and all Restrictions contained in this Declaration are intended to be covenants running with the land (including the entire Real Property until terminated as set forth herein), and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by Tustin, and shall be binding upon and burden the Real Property and for the period described in Section 8 and to the extent not terminated or otherwise limited pursuant to Section 4.9.10, Initial Owner and each Successor Owner and their respective successors and assigns and each and every Person claiming by, through or under Initial Owner and each Successor Owner of the Property or Project Improvements thereon or portion thereof or interest therein including each and every End User, for the benefit of the City and its Governmental Successors. Except to the extent terminated or otherwise limited pursuant to Section 4.9.10, this Declaration shall survive each and every close of escrow with respect to the Real Property and shall not merge with any deed.

9.2. Tustin as Identified Beneficiary. In amplification and not in restriction of the provisions set forth hereinabove, each Owner by execution of this Declaration or by execution of the assignment and assumption agreement with respect to this Declaration confirms and agrees that the City and the Authority shall each be deemed a beneficiary of the agreements, covenants and restrictions herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants and restrictions without regard to technical classification or designation shall be binding for the benefit of both the City and the Authority, and such covenants and restrictions shall run in favor of both the City and the Authority for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants and restrictions relate. The City and the Authority shall each have the independent right, in the event of any breach of this Declaration or covenant or restriction herein, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of this Declaration or covenants or restrictions.

9.3. No Third-Party Beneficiaries. This Declaration is not enforceable by and does not run to the benefit of any Person other than the City and the Authority and their respective successors and assigns.

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10. Burden and Benefit; Priority.

10.1. Tustin hereby declares that all of the terms and provisions in this Declaration are covenants and restrictions that touch and concern the Property and the Project Improvements to be constructed thereon and that each Successor Owner’s legal interest in the Property and such Project Improvements is rendered less valuable thereby.

10.2. This Declaration is superior in priority to all Mortgages and other instruments affecting the Property and/or Project Improvements thereon made or recorded on or after the date of the recordation of this Declaration.

11. Intentionally Omitted.

12. Default Enforcement.

12.1. Default. “Event of Default” under this Declaration means any of the following:

12.1.1. A breach or default by Owner occurs under the Other Agreements during the term thereof and after expiration of any applicable cure periods;

12.1.2. A breach or default by Owner occurs under the DDA prior to the recording by the City in the Official Records of the Final Certificate of Compliance or under the Development Agreement during its term and after expiration of any applicable cure periods; or

12.1.3. Owner fails to perform fully any of its obligations set forth in this Declaration within thirty (30) calendar days following receipt of written notice regarding such other default to Owner; provided, that if such failure is capable of being remedied but not capable of being remedied within thirty (30) calendar days and Owner has diligently pursued a cure, then the defaulting party shall have an additional sixty (60) calendar days to remedy such failure. The failure of the Program Administrator to notify Owner or a Successor Owner of any such default shall not be deemed a waiver of the default, and Tustin shall have no obligation to notify the defaulting party of the default. Notwithstanding the foregoing, while the DDA remains in effect, any default governed by the DDA shall be subject to the terms, remedies, and cure provisions of the DDA and not this Declaration.

12.2. Remedies. Following an Event of Default, the City and the Authority, and each of them, may pursue all of their respective rights and remedies set forth in the DDA or the Other Agreements or this Declaration or otherwise available at law, in equity or by statute. The City’s and the Authority’s respective rights and remedies shall be cumulative (but not duplicative) and no one of such rights and remedies shall be exclusive of any of the others, or of any right or remedy at law or in equity which the City or the Authority, as applicable, might otherwise have under or by virtue of this Declaration and the exercise of one such right or remedy by the City or the Authority, as applicable, shall not impair City or Authority’s standing to exercise any other right or remedy. By accepting this Declaration, each Owner agrees that this Declaration may be specifically enforced.

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12.3. Non-Complying Lower Income Units. The Program Administrator may make a determination that Owner has breached its obligations regarding leasing of the Lower Income Units based on information provided in the Certificate of Continuing Program Compliance or determined by the Program Administrator in their reasonable discretion based on information otherwise available to them. In addition to any other rights and remedies set forth in this Declaration or otherwise available to any party legally entitled to enforce this Declaration, if a Default with respect to Section 4 occurs resulting in a Lower Income Unit becoming a NonComplying Unit, and (a) if the Event of Default is not cured on a going forward basis within sixty (60) calendar days after notice from the Program Administrator to Owner, or (b) if such Event of Default cannot reasonably be cured within the sixty (60) day period and Owner has not commenced the curing of such Default, or if Owner is not otherwise diligently prosecuting such cure to completion, then, with respect to such Non-Complying Unit, Owner shall pay to the City the Compliance Fee for the Non-Compliance Period regarding such Non-Complying Unit. Owner shall pay the Compliance Fee for the Non-Complying Unit on the fifteenth (15th) day of the calendar month immediately following the end of the Non-Compliance Period for such NonComplying Units.

12.4. Obligation of Owner During Default. Each Owner shall remain liable under this Declaration for any breach or default of this Declaration that occurs or is alleged to have occurred to the extent set forth in Section 8.

12.5. Lien of Mortgage; Priority. No breach or violation of any of the provisions of this Declaration shall impair, defeat or render invalid the lien of any Permitted Mortgage prior to recording by the City of the Certificate of Compliance applicable to the portion of the Real Property encumbered by such Permitted Mortgage in the Official Records and thereafter, any Mortgage; provided, however, that any Person that is a Successor Owner shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Declaration, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise, but such Successor Owner shall have a reasonable time after acquiring title in which to cure any violations or correct and change any facts giving rise to the City’s rights under this Declaration occurring prior to such transfer of title or occupancy and which are reasonably capable of being cured or changed provided that such Successor Owner diligently acts to effect such cure or change (and in the event of such diligent and timely cure, such Successor Owner shall have no further liability in connection with such prior violation or the continued existence of such violation until such cure is completed). Prior to recording by the City in the Official Records of the applicable Certificate of Compliance, any Permitted Mortgagee and following recording by the City in the Official Records of the applicable Certificate of Compliance, any Mortgagee, shall be entitled to written notice in connection with any breach under this Declaration at the address set forth in the Mortgage or recorded assignment of Mortgage.

13. Administration, Recording and Filing.

13.1. Administration. The administration of this Declaration by the City and the Authority shall be delegated by the City and the Authority to the Program Administrator. The Program Administrator shall have the authority to act on behalf of the City and the Authority for all purposes under this Declaration and provide all approvals, notices, consents and interpretations Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
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that may be required under this Declaration from either the City or the Authority or both; provided that the Program Administrator shall not have the authority to modify or amend this Declaration.

13.2. Recording. This Declaration, and all amendments and supplements hereto and thereto, shall be recorded and filed in the Official Records. Owner shall pay all fees and charges incurred in connection with any such recording.

14. Indemnification. Each Owner shall defend, indemnify and hold harmless Tustin and their respective officers, officials, agents, employees, representatives, and volunteers (collectively, the “Tustin Parties”) from and against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to Owner’s performance or non-performance under this Declaration, except to the extent cause by the gross negligence or willful misconduct of any of the Tustin Parties. Sections 10.1 through 10.9 of the DDA (as incorporated in the Special Restrictions) are incorporated herein by this reference with respect to the obligations under this Section 14.

15. Limitation of Liability. Notwithstanding any other provision or obligation to the contrary contained in this Declaration: (a) the liability of Owner under this Declaration to any Person, including Tustin, is limited to the Owner’s interest in the Real Property and Project Improvements, and such persons and entities shall look exclusively to the Real Property and Project Improvements for satisfaction of any claim arising under this Declaration, and may also look to such other security as may from time to time be given for the payment of obligations arising out of this Declaration or any other agreement securing the obligations of the Owner under this Declaration; and (b) from and after the date of this Declaration, no deficiency or other personal judgment for monetary damages shall be rendered against Owner, the assets of Owner (other than Owner’s interest in the Real Property and Project Improvements), or against Owner’s partners, members, successors, transferees or assigns or against each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Declaration or arising out of any other agreements securing the obligations of Owner under this Declaration, or any judgment, order or decree rendered pursuant to any such action or proceeding. Nothing in this Declaration shall limit the City’s rights and remedies pursuant to the Other Agreements. Notwithstanding the foregoing, nothing in this Section shall be deemed to limit or restrict any liability, obligation, or remedy to the extent such limitation is prohibited by applicable law, including, without limitation, any obligations arising under applicable provisions of the California Surplus Land Act or other Governmental Requirements.

16. Miscellaneous.

16.1. Governing Law. This Declaration shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, without giving effect to any choice of law provisions.

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16.2. Amendment or Modification of Declaration Without the Consent of Tenants and Mortgagees. The City and its successors and assigns, as the first party, and each Owner then owning all or any portion of the Real Property or any Project Improvements that are then subject to this Declaration, as the second parties, shall have the right upon written agreement signed by the first party and all of the second parties then holding such interests, to consent and agree to changes in, or to eliminate in whole or in part, any of the terms or provisions in this Declaration without the consent of any tenant, lessee, easement holder, licensee, Mortgagee, trustee, beneficiary under a deed of trust, or any other Person having any interest less than a fee in the Real Property. No separate consent of the Authority shall be required for any such amendment or modification. Any such amendment or modification shall be duly recorded in the Official Records.

16.3. Approvals by City and Authority. This Declaration shall be administered by the Program Administrator on behalf of both the City and the Authority pursuant to Section 13.1 above. Except where the Program Administrator determines that the approval of a matter may require approval by the City Council or the taking of an action by the City Council, any matter to be approved by the City shall be deemed approved, and any action to be taken by the City shall be deemed taken, upon the written approval by the Program Administrator. The Program Administrator shall have the authority to issue interpretations with respect to this Declaration and to determine whether any action requires the approval of the City Council. Any matter to be approved by the Authority shall be deemed approved, and any action to be taken by the Authority shall be deemed taken, upon the written approval by the Program Administrator. The Program Administrator shall have the authority to issue interpretations on behalf of the Authority with respect to this Declaration and to determine whether any action requires the approval of the Authority board.

16.4. Waiver. No waiver of any provision or consent to any action under this Declaration shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver provided negligent or willful misrepresentations of any material facts relevant to the waiver requested.

16.5. Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Declaration shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the Person to which notice is being provided; (b) three (3) Business Days after such notice has been sent by U.S.

Postal Service via certified mail, return receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the next Business Day after such notice has been deposited with an overnight delivery service, postage prepaid, addressed to the party to whom notice is being sent as set forth below with next-business-day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices with respect to this Declaration shall be addressed as follows:

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City: City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Aldo E. Schindler
Email: [email protected]
With a copy to: Deputy City Manager – Real Property
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Brian Moncrief
Email: [email protected]
And with a copy
to:

City Attorney
Woodruff, Spradlin & Smart
555 Anton Blvd., Suite 1200
Costa Mesa, CA 92626
Attention: David Kendig, Esq.

Email: [email protected]
Owner: CD-CW (Tustin) LLC
c/o Confluent Development, LLC
2215 Market Street
Denver, CO 80205
Attention: Steve Strom
Email: [email protected]
And with a copy
to:

CD-CW (Tustin) LLC
c/o Confluent Development, LLC
2215 Market Street
Denver, CO 80205
Attention: General Counsel
Email: [email protected]
And with a copy
to:

Polsinelli
1401 Lawrence Street, Suite 2300
Denver, CO 80202
Attention: Nick McGrath
Email: [email protected]
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Any Owner, the City, or Authority may by written notice in the manner specified in this Declaration change the address to which notices to such Person shall be delivered.

16.6. Severability. Any provision of this Declaration that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from this Declaration. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of this Declaration. If any provision or part of this Declaration is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

16.7. Consent to Jurisdiction. All actions or proceedings arising in connection with this Declaration shall be tried and litigated exclusively in the state and federal courts located in the County of Orange, State of California. This choice of venue is mandatory and not permissive in nature, thereby precluding the possibility of litigation with respect to or arising out of this Declaration in any jurisdiction other than that specified in this Section, and without the right it may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section, and stipulates that the state and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Declaration. By executing a consent to this Declaration, each Owner authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Declaration and in the manner set forth in Section 16.5. Any final judgment rendered against the party in any action or proceeding (after expiration of applicable appeal periods without having timely filed any such appeal) shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.

16.8. Time Is of the Essence. Time is of the essence in this Declaration and failure to timely comply with provisions of this Declaration shall be a breach under this Declaration.

16.9. Attorneys’ Fees. If any party that is subject to this Declaration (including City, Authority, and any Owner) files an action or brings any proceeding against another party arising from this Declaration, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys’ fees and costs to be fixed by the court. A party not entitled to recover its costs shall not recover attorneys’ fees. No sum for attorneys’ fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is entitled to its costs or attorneys’ fees.

16.10. Recitals. The recitals set forth at the beginning of this Declaration of any matters or facts shall be conclusive proof of the truthfulness thereof and the terms and conditions set forth in the recitals, if any, shall be deemed a part of this Declaration.

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16.11. Exhibits. Unless otherwise indicated, references in this Declaration to articles, sections, paragraphs, subsections, clauses, exhibits, attachments and schedules are to the same contained in or attached to this Declaration and all exhibits and attachments referenced in this Declaration are incorporated in this Declaration by this reference and made a part of this Declaration as though fully set forth in this Section.

16.12. Captions. All captions, titles or headings of the articles, sections, paragraphs or subparagraphs of this Declaration are inserted solely for reference, shall not be deemed to be a part of this Declaration, and shall not define, limit, extend or describe the scope of this Declaration nor be used or construed in the interpretation or determination of the validity of this Declaration or any provision thereof.

16.13. Additional Definitions. As used in this Declaration the words “include”, “includes” and “including” mean, respectively, “include, without limitation,”, “includes, without limitation,” and “including, without limitation,” when stated in connection with performance by a Party, the word “shall” imposes a mandatory requirement on that Party to perform the stated act or requirement (and shall be synonymous with “must”) and the term “shall not” imposes a mandatory requirement on that Party not to perform the stated act or requirement (and shall be synonymous with “must not”). The word “may” is permissive and does not impose any mandatory requirement on a Party to perform the stated act.

16.14. Counterparts. This Declaration may be executed in counterparts, and all such counterparts when taken together shall constitute a single instrument. {signature page follows}
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
Decl 9.28.26 (HM).docx

ATTACHMENT
26 S-1
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8
IN WITNESS WHEREOF, this Declaration is executed by City and Authority as of the date first written above.

Dated:

CITY OF TUSTIN:

By: ,
Aldo E. Schindler
City Manager
ATTEST:

By:

Erica N. Yasuda
City Clerk

APPROVED AS TO FORM
By:

David Kendig
City Attorney
Hepner & Myers LLP
Special Real Estate Counsel to the City
By:

Amy E. Freilich
TUSTIN HOUSING AUTHORITY:

By: ,
Aldo E. Schindler
Executive Director
{signatures continue on following page}
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
Decl 9.28.26 (HM).docx

ATTACHMENT
26 S-2
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8
ACCEPTANCE AND CONSENT BY [{If Transfer of DDA to Initial Owner occurs following recording:} INITIAL DEVELOPER AND] INITIAL OWNER By executing below to evidence acceptance of and agreement to the terms of this Declaration, [{If Transfer of DDA to Initial Owner occurs following recording:} CD-CW (Tustin) LLC (“Initial Developer”) and] ______________, LLC (“Initial Owner”) as a holder of a future interest in the Real Property, [each] on behalf of itself and each Successor Owner, declares for the benefit of Tustin and its successors and assigns: (a) its understanding and intent that the benefit of the covenants and restrictions that run with the land and touch and concern the Real Property are made for the enhancement and enjoyment and use of the Real Property and Project Improvements by Qualified Households who may be entitled to lease Lower Income Units under the terms of this Declaration and for the benefit of the City, (b) that this Declaration furthers the public purposes for which the DDA and the Development Agreement were entered into with Initial Developer and assumed by Initial Owner and each and every Successor Owner’s legal interest in the Real Property is rendered less valuable thereby and (c) Initial Owner’s understanding and agreement that, upon acquiring ownership of the Real Property, Initial Owner and each Successor Owner shall assume and be bound by the obligations of Owner under this Declaration for the period provided herein.

Initial Developer executes this Declaration solely to evidence its acknowledgment and consent and does not assume the obligations of Owner under this Declaration except to the extent expressly required by the DDA. [{If Transfer of DDA to Initial Owner occurs following recording:} Initial Developer shall be released from any obligations it may have under this Declaration upon conveyance of the Real Property to Initial Owner, except for obligations that Accrued before such conveyance or that the DDA expressly provides shall survive such conveyance.] INITIAL DEVELOPER:

CD-CW (TUSTIN) LLC, a Colorado limited
liability company
By: CD Manager LLC,
a Colorado limited liability company,
its Manager
By: Confluent Development LLC,
a Colorado limited liability company,
its Manager
By: ___________________________
Marshall M. Burton
Chief Executive Officer
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
Decl 9.28.26 (HM).docx

ATTACHMENT
26 S-3
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8
INITIAL OWNER:
[enter signature block]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
Decl 9.28.26 (HM).docx

ATTACHMENT
26 S-4
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8

CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT

A NOTARY PUBLIC OR OTHER OFFICER COMPLETING

THIS CERTIFICATE VERIFIES ONLY THE IDENTITY OF

THE INDIVIDUAL WHO SIGNED THE DOCUMENT TO

WHICH THIS CERTIFICATE IS ATTACHED, AND NOT THE

TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT

DOCUMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of _________________________________
On _________________ before me, ________________________________________________, Date (Insert Name and
Title of the Officer)
personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Seal and/or Stamp above Signature: ________________________________ Signature of Notary Public
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing
Decl 9.28.26 (HM).docx

ATTACHMENT
26 S-5
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8

STATE OF COLORADO )
CITY AND ) SS:

COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of _______, 2026, by Marshall M. Burton, as Chief Executive Officer of Confluent Development, LLC, a Colorado limited liability company, as Manager of CD Manager LLC, a Colorado limited liability company, as Manager of CD-CW (Tustin) LLC, a Colorado limited liability company.

WITNESS my hand and official seal.

Notary Public
My Commission Expires:
[SEAL]
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing Decl

9.28.26 (HM).docx
ATTACHMENT 26
S-5
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8

CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT

A NOTARY PUBLIC OR OTHER OFFICER COMPLETING

THIS CERTIFICATE VERIFIES ONLY THE IDENTITY OF

THE INDIVIDUAL WHO SIGNED THE DOCUMENT TO

WHICH THIS CERTIFICATE IS ATTACHED, AND NOT THE

TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT

State of California
County of _________________________________
On _________________ before me, ________________________________________________, Date (Insert Name and
Title of the Officer)
personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

9.28.26 (HM).docx
ATTACHMENT 26
Exhibit A
City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8

EXHIBIT A

LEGAL DESCRIPTION OF REAL PROPERTY
That certain real property located in the City of Tustin, County of Orange, State of California, and legally described as follows:

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

LOT 14, INCLUSIVE OF TRACT NO. 18197 AS SHOWN ON A MAP FILED IN BOOK 990, PAGES 25 THROUGH 33, INCLUSIVE OF TRACT MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.

EXCEPTING THEREFORE THE MATTERS SET FORTH IN SECTION 2 OF THE QUITCLAIM DEED FOR PORTION OF DISPOSITION AREA 8 AND COVENANTS,

CONDITIONS AND RESTRICTIONS, INCLUDING ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 DATED OF EVEN DATE HEREWITH AND

RECORDED PRIO TO THE RECORDING HEREOF IN THE OFFICE OF THE COUNTY CLERK RECORDER FROR ORANGE COUNTY, CALIFORNIA.

FOR CONVEYANCING PURPOSES ONLY: APN 430-481-12
Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing Decl

9.28.26 (HM).docx
ATTACHMENT 26
Exhibit B

Page 1 ends

City of Tustin/Tustin Housing Authority/
Confluent/Portion of Disposition Area 8

EXHIBIT B

GLOSSARY OF DEFINED TERMS
For purposes of this Declaration, the following initially capitalized terms shall have the meanings set forth below and unless otherwise indicated, defined terms may be used in the singular or plural form, as the context requires :
“Accrue”, “Accrued”, or “Accruing” means with respect to any Claim, the date and time such Claim arises as a matter of law and could then or thereafter be asserted by any Person. “Active Adult Project” means the development, construction, maintenance, leasing and use of the by Developer of the age restricted (55 years or older) residential active adult and independent living component of the Project and related Project Improvements on the Active Adult Real Property.
“Active Adult Real Property” means the approximately 2.79 acre portion of the Real Property depicted as such on Exhibit C to this Declaration and if the Final Parcel Map is recorded in the Official Records, shall be comprised of Parcel 1 on the Final Parcel Map. “Administrative Fee” has the meaning set forth in Section 4.10.1. “Affordability Commencement Date” means the date on which all of the following have occurred on the Real Property: (a) all Lower Income Units required by the DDA to be constructed have been completed, and (b) the first occupancy by a Qualified Household of a Lower Income Unit.
“Affordable Rent” means for any Lower Income Unit, monthly Rent Consideration payable by the tenant that does not exceed the Maximum Monthly Affordable Rent applicable to that Lower Income Unit.
“AL/MC Project” means the development, construction, maintenance, leasing and use of the by Developer of the senior congregate care assisted living and memory care components of the Project and related Project Improvements on the AL/MC Real Property. “AL/MC Real Property” means the approximately 3.35 acre portion of the Real Property depicted as such on Exhibit C to this Declaration, and if the Final Parcel Map is recorded in the Official Records, shall be comprised of Parcel 2 of the Final Parcel Map. “Annual List” has the meaning set forth in Section 4.4.1. “Approved List” has the meaning set forth in Section 4.4.1. “Approved Plans” means, collectively: (i) the Entitlements which govern development of the Project Improvements on the Real Property and Development Permits, including encroachment permits, necessary for development of the Project, including approval of plans by the City pursuant to the Design Review process; (ii) the Basic Concept Plan and any modification thereto approved Docusign Envelope ID: 5FFBA527-D2FE-839A-80B6-01932AA2861A Tustin Confluent DDA Att 26 Aff Housing Decl

9.28.26 (HM).docx
ATTACHMENT 26
Exhibit B

Page 2 ends

Tustin City CouncilOctober 6, 2026

Tustin City Council
October 6, 2026