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HomeMy WebLinkAboutNS-2106 - Approving a Development Agreement Between the City of Santa Ana and Pactel Properties Pertaining to Property Located at 100 East SandPointe Avenue osn REL: 12/10/90 ORDINANCE NO. NS- 2106 AN ORDINANCE OF THE CITY OF SANTA ANA APPRO- VING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND PACTEL PROPERTIES PERTAINING TO PROPERTY LOCATED AT 100 EAST SANDPOINTE AVENUE. WHEREAS, PacTel Properties proposes to develop property located at 100 East Sandpointe Avenue in accordance with current land use regulations applicable to said property and in this regard has requested to enter into a Development Agreement with the city of Santa Ana in the form set forth in Exhibit A, attached hereto and incorporated herein, in accordance with sections 65864-65869.5 of the Government Code of the State of california; and WHEREAS, the Planning Commission of the city of Santa Ana held a duly noticed public hearing on December 11, 1990, on the said Development Agreement, and, based thereon, determined that the development as proposed therein is consistent with the general plan of the city of Santa Ana, and recommended that the city Council approve the Development Agreement; and WHEREAS, prior to taking action on this ordinance, the City Council of the City of Santa Ana has reviewed and considered the information contained in that certain "Environmental Impact Report, PacTel Office Tower, Hutton Centre," pertaining to the development of the abovesaid property in accordance with the Development Agreement, and has certified said environmental impact report as having been prepared in accordance with the California Environmental Quality Act and has adopted environmental findings regarding the PacTel project; and WHEREAS, this Council, prior ordinance, has held a duly noticed Development Agreement; to taking action on this public hearing, on the said NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: 1. The Development Agreement between the City of Santa Ana and PacTel properties is hereby found and determined to be consistent with the general plan of the City of Santa Ana and otherwise justified by the public necessity, convenience and general welfare. 2. That certain Development Agreement between the city of Santa Ana and PacTel Properties, in the form set forth in Exhibit A, attached hereto and incorporated herein, is hereby approved, and the Mayor is authorized to execute said Agreement on behalf of the City of Santa Ana following its execution by PacTel Properties, and the Clerk of the Council to attest to the same. r-~- , I ORDINANCE NO. NS-2106 PAGE TWO 090 3. The Clerk of the Council is directed to cause a copy of the said Development Agreement to be recorded in the official records of Orange County, California, within ten days following its effective date. As use herein effective date means the date thirty days after the date of this ordinance. ADOPTED this 7th day of January 1 , 199_. ATTEST: (i... y~ ice C. Guy '-. Clerk of the Counc'l ~!tl2g, Mayor COUNCILMF..MBERS : Young Pulido Acosta Griset McGuigan Norton Richardson AYE ""fi.'{t ""'fi.'{'t ~ ""'fi.'{'t A'i'E ""'fi.'{'t APPROVED AS TO FORM: ~S;~r City Attorney CERTIFICATE OF ORIGINALITY & PUBLICATION State of California County of Orange I, JANICE C. GUY, Clerk of the council, do hereby certify the attached Ordinance NS- .;lIt) '" to be the original ordinance adopted by the City Council of the city of Santa Ana on 1- 7- 91 ; and that said ordinance was published in accordance with the Charter of the city of Santa Ana. fl.;. y~;z 1'-/" Clerk of the Counci , Date City of Santa Ana } -' " " I II . - ,/". ORDINANtE NO, NS-2106 91=\07342 ~ -'fO-/.:J '- {t ,'" "' 091 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 P5/,OO J C2 RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA -122 PM MAR 8 '91 4 a'~AECORDr:F DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Development Agreement") is made and entered into this 7th day of January, 1991, by and between the CITY OF SANTA ANA, a municipal corporation organized and existing under the laws of the State of California (the "city"), and PACTEL PROPERTIES, a California corporation ("Developer"). R Eel TAL s: A. California Government Code Section 65864 , et seq., provides that the legislative body of a city may enter into a development agreement for the development of real property in order to vest certain rights in the developer and to meet certain public purposes of the local government. Pursuant to California Government Code section 65865, the City has adopted its Resolution No. 82-98 ("Resolution No. 82-98"), establishing procedures and requirements for the approval of development agreements. Developer has applied to the City pursuant to California Government Code Sections 65864 - 65869.5 and pursuant to said Resolution for approval of the Development Agreement set forth herein . B. The Developer and the City desire to enter into this Development Agreement in order to facilitate the development of certain property (the "Property") within that commercial/retail development known as "Hutton Centre" which Property and Development are more fully described in Exhibit "A" and shown on the map set forth on Exhibit "B", both attached hereto. The proposed development of the Property ("the Development") consists of the construction of an office building of not more than ten stories (the "Office Building") and a parking structure of not more than eight levels (the "Parking Structure"). Developer is the owner of the Property. C. The City has conducted duly noticed public hearings on this proposed Development Agreement pursuant to Government Code Section 65867 and Resolution No. 8298 and has found that the 1 ORDINANCE NO. NS-2106 092 provisions of this Development Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in the City's General Plan as amended by the General Plan Amendment refE;lrenced. pelow (the "General Plan"). Prior to or concurrently with its approval of this Development Agreement and the Development, the City Council of the City (the "City Council") has also approved: (a) the Final Environmental Impact Report ("EIR"), state Clearing House No. 88122115, consisting of the PacTel Office Tower, Hutton Centre, Draft Environmental Impact Report, dated November 6, 1989, an Addendum to Draft Environmental Impact Report, dated November 30, 1990, and the Response to Comments, Final Environmental Impact Report, pactel Office Tower, Hutton Center; (b) General Plan Amendment No. 90-14 pursuant to Resolution No. 90-118 (hereinafter the "General Plan Amendment"); and (c) a vesting Tentative Map No. 89-320 (the "Map") wi th respect to the Property. The city's Planning Manager has approved a site plan for the Property (DP No. 89-151) on (the "site Plan"), a reduced copy of which is attached to this Agreement as Exhibit C. D. The Development of the Property, which is located within the existing Hutton Centre development and designated by the City's General Plan as a "District Center," has been found by the City to provide substantial public benefits and help attain certain public objectives, including without limitation: (a) the further development of a "District Center" within the city, which will provide a long-term source of employment opportunities and revitalization of the economic base of the community; (b) providing the city directly with additional revenue in the form of sales taxes, rental taxes, and increased real property taxes; (e) providing retail and commercial facilities for the business community in the area of the Development; (d) providing funds for the widening and improvement of certain streets as specified herein. E. certain development risks and uncertainties associated with the long-term nature of the Development, including the cost of the portion of these public improvements, could discourage and deter Developer or any subsequent owner of the Property from ma~ing the long-term commitments necessary to fully develop the Property; therefore, the parties desire to enter into this Development Agreement in order to reduce or eliminate uncertainties to such development over which the City has control. F. The Development and the use which Developer proposes in connection with the Property have been extensively reviewed and considered by the City and its officers, agencies anduepartments, and such proposed Development and use have been found to accommodate the city's recommendations and suggestions in order to protect the pUblic's interest and to enhance the desirability, from the pUblic's perspective, of such proposed Development and use. 2 II ORDiNANCE NO, NS-2106 093 G. As permitted by law, the City and the Developer desire to establish design and development standards for the entire build- out period of the Development, including all phases thereof, if any, the permitted uses for the Development, and to identify the scope of public infrastructure improvements to be required for, and as a result of, the Development. H. The City recognizes that Developer may sustain substantial losses if the city were to default in its obligations or commitments herein undertaken, including without limitation the substantial investment made by Developer to plan and obtain entitlements for the Development. 1. The City, by electing to enter into contractual agreements such as this one, acknowledges that the obligations of the City shall survive beyond the term or terms of the present city Council members, that such action will serve to bind the city and future city Councils to the obligations thereby undertaken, and this Development Agreement shall limit the future exercise of certain governmental and proprietary powers of the city., By approving this Development Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Development Agreement, rather than deferring its actions to some undetermined future date. The terms and conditions of this Development Agreement have been found to be fair, just and reasonable, and the city has concluded that the pursuit of the Development will serve the best interests of its citizens and the public health, safety and welfare will be best served by entering into this obligation. The city acknowledges that Developer would not consider or engage in the Development without the assurances of development entitlements which this Development is designed to provide. J. This Development Agreement will promote and encourage the development of the Property by providing the Developer and its creditors with a greater degree of certainty of the Developer's ability to expeditiously and economically complete the development effort, and the parties agree that the consideration to be received by the city pursuant to this Development Agreement and the rights secured to the Developer hereunder constitute sufficient consideration to support the covenants and agreements of the city and the Developer. By entering into this Development Agreement, the City desires to allow the Development pursuant to the Development Agreement, the land use ordinances, rules, regulations and policies applicable on the "Effective Date," as defined in Section 4 hereof as amended, if at all, by this Development Agreement and, pursuant to this Development Agreement, to vest in Developer, to the fullest extent possible under the law, all possible development entitlements in order to complete the Development. 3 . ORDINANCE NO. NS-2106 , - 094 NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and, other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the parties do hereby agree as follows: 1. Bindinq Effect of Development Aqreement. The Development Agreement pertains to the Property as described in Exhibit "A". The burdens of the Development Agreement are binding upon, and the benefits of the Development Agreement inure to all successors-in-interest of the parties to the Development Agreement, and constitute covenants which run with the Property, and in order to provide continued notice thereof, this Development Agreement will be recorded by the parties. 2. Relationship of the Parties. It is hereby specifically understood and acknowledged that the Development is a private project and that neither the city nor Developer will be deemed to be the agent of the other for any purposes whatsoever. 3. Reservations and Dedications. It is hereby further understood and agreed that no reservations or dedications of land will be required by the City during the Term (as herein defined) except as required by relevant part of an explicit condition to the . Map, if any, imposed in connection with the approval of the Map, or as otherwise agreed to in a separate writing signed by the city and Developer, except that, in the event the City installs traffic signals at an intersection adj acent to the Property, Developer agrees to provide the city with an easement for the installation of underground traffic signal appurtenances, if it is necessary for such appurtenances to encroach into the Property. 4. Term. (a) The "Effective Date" of this Development Agreement shall be the date on which the City adopts its ordinance approving same, with the understanding that Developer shall execute this Development Agreement prior to its submittal to the city council for approval. (b) The term ("Term") of this Development Agreement is ten (10) years from the Effective Date, subject to earlier termination as hereinafter provided. Unless otherwise specified, the obligations herein and the rights herein shall remain in full force and effect throughout the Term. (c) The City may terminate this Development Agreement prior to expiration of the Term if the Developer fails to perform its obligations under section 12 hereof. 4 II . . ORDINANCE NO. NS-2106 095 5. Development Approval. The following elements of the Development are hereby approved: ( a) Permitted Uses of. the Propertv. The parties agree that the Office Building and the Parking structure are permitted uses of the Property. The City agrees to allow such uses on the Property, subject to the right of the City to take appropriate action to abate any public nuisance and to enforce all laws which do not conflict with Existing Development Regulations as defined in section 11 of this Agreement. Nothing in this Agreement shall be construed to prohibit uses other than the Office Building and the parking structure on the Property, provided such other uses conform to the ordinances, regulations, and standards of the City as they may from time to time be amended. The ve~ted rights granted to Developer under this Agreement apply only. to the Office Building and the Parking structure. (b) Development Standards. The City agrees to allow development of the Office Building and the Parking Structure in accordance with Existing Development Regulations as defined, in section 11 of this Agreement; provided the Office Building shall not exceed ten stories and the Parking structure shall not exceed eight levels and that the Development conforms to the Site Plan except for minor modifications determined to be necessary during the course of building permit application plan check and except for modifications which are mutually acceptable to City's Planning Manager and the Developer. ~ ~. f. , 6. Subdivision. The term of the Map or any resubdivision or amendment of the Map, including any lot line adjustment or merger of lots within the Map shall automatically be extended for the Term of this Development Agreement as permitted by Government Code section 66452.6(a). 7. processinq of Application and Permits. The City and its officers, agencies and departments shall not unreasonably delay the processing of any application for any permit or approval necessary to commence or complete the Development. 8. Buildinq Permits. It is underst{)od by the parties to this Development Agreement that pursuant to the City's Building Code, building permit applications and issued building permits do not remain valid for the term of this Development Agreement, but only for the term set by the Building Code. Accordingly, the Developer shall have the right to file new building permit applications for the Development or any portion thereof where such previously approved building permit applications or issued building permits have expired. Any such new building permit applications filed for the Development shall be reviewed in accordance with this Development Agreement. 5 I ORDINANCE NO. NS-2106 , , 09G 9. Development Review. Nothing set forth herein shall impair or interfere with the right of the City to' require the processing of building permits as required by law and to conduct its development review of anyspeeific improvements proposed for the Development pursuant to the applicable provisions of Chapter 41 of the City's Municipal Code which are in effect as of the date hereof; provided, however, no such review shall authorize or permit the City to impose any condition and/or withhold approval to any proposed building the result of which would be inconsistent with any term or provision of this Development Agreement. 10. Utilitv Caoacitv. It is hereby agreed that the city will not undertake any act or neglect to perform any act or duty which would impair or inhibit Developer's receipt of water, storm drain or sanitary sewer service. The City hereby represents that it currently has sufficient water storm drain and sanitary sewage capacity for the entire development of the Property. 11. Vestinq of Development Riohts. (a) General statement. As a material inducement to Developer and its lenders to continue with diligent efforts to promote the development of the Property, the city desires to cause all development rights which may be required to develop to completion the Property with the Office Building and the Parking structure consistent with this Agreement, to be deemed vested in Developer for the benefit of the Property, as of the Effective Date of this Development Agreement, to the greatest extent permitted by law, and to be free of all discretionary rights of the City or any body or subsequent building moratorium, ordinances, rules, regulations, policies or restrictions on development which are inconsistent with this Development Agreement. Notwithstanding the foregoing, nothing set forth in this Development Agreement shall be deemed to require Developer to commence or complete the Development. (b) Existinq Rules to Govern. In accordance with the terms of Government Code Section 65866, the city and Developer agree that the general plan provisions, ordinances, rules, regulations and official policies of the city ,in effect as of the date of this Development Agreement governing the design, density, permitted land uses, improvement and construction standards applicable to the Development (collectively, the "Existing Development Regulations") shall govern during the Term of this Development Agreement. The city shall not, in subsequent actions applicable to the Property or the Development, apply general plan provisions, ordinances, rules, regulations and policies which conflict with the Existing Development Regulations, except with the mutual consent in writing of the City's Planning Manager and the Developer. Except as otherwise provided in this Development Agreement, no amendment to or revision of, or addition to any of the Existing Development Regulations without the mutual consent in 6 ORDiNANCE NO. NS-2106 ... , 097 writing of the City's Planning Manager and the Developer, whether adopted or approved by the City Councilor any of'fice, board, commission or other agency of the City, or by the people of the City through charter amendment, referendum or initiative measure or other vote, shall be effective or enforceable by the city with respect to the Development, its design, grading, construction, remodeling, use or occupancy, schedule or development. (c) Exclusions from "Existinq Development Requlations." As used herein, "Existing Development Regulations" shall not include municipal laws and regulations which do not conflict with Developer's vested rights to develop and use the Property in accordance with this Agreement. Developer and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non- conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non-conflicting laws and regulations include the following: ' i) Taxes, assessments, fees and charges; ii) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; iii) Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city-wide basis; iv) Procedural rules of general city-wide application. (d) Subsequent "Slow/No Growth" Measures. Consistent with (a) and (b), above, the City and Developer specifically agree that any subsequently enacted initiatives, referendums, or amendments to the City's General Plan and/or Zoning Code which contain "slow/no growth" measures 'or which by their terms are intended to, or by operation having such effect or which otherwise conflict with the terms of this Development Agreement, or limit the timing or phasing of the Development shall have no application to the Development. Notwithstanding any such measures, the mitigation measures required for the Development are limited to those established by this Development Agreement. 12. Environmental Compliance and Mitiqation Measures. (a) Obliqations and contributions of the Developer for Mitiqation Measures. The EIR for the Development is incorporated herein by reference as through fully set forth at 7 ORDINANCE NO. NS-2106 .v 098 length. The City and the Developer acknowledge that the EIR identifies certain mitigation measures applicable to the Development. Developer agrees to implement the various mitigation measures recommended to be implemented by the Developer pursuant to the terms of the EIR, provided that the Developer proceeds with the Development and commences construction. Developer's obligations with regard to the mitigation of off-site traffic-related impacts are further described in the following paragraphs. As used in this section, "off-site" means outside of the Property and the public right-of-way bordering on the Property. i) Off-site street Improvements. The City and the Developer agree that. the Developer will contribute an amount determined pursuant to section 13 of this Agreement (the "Off-site street Improvements Contribution") as Developer's participation on a "fair share basis," as stated in the EIR, in the implementation of such mitigation measures pertaining to off-site traffic, circulation, and roadway and str~et improvements which are identified in the EIR. Payment of the Off-site Street Improvements Contribution shall be made at the time that the Developer appl,ies for a certificate of occupancy for the Office Building. ii) Interim Parkinq Plan. The Developer specifically agrees to develop and implement an Interim Parking Plan in accordance with mitigation measures required by the EIR, prior to applying for and receiving building permits from the City as to the Office Building or Parking Structure. iii) TDM Proqram. The EIR identifies a Transportation Demand Management Program ("TDM") to be implemented as one of the mitigation measures applicable to the Development. In this regard, and as certified in the Findings of Fact and Statement of Overriding Considerations applicable to the EIR, the implementation of the TDM program will not be required, and compliance with the reduction measures projected by the implementation of the TDM program shall not be tested, prior to the date a certificate of occupancy is issued for the Office Building. iv) Sandpointe Neiqhborhood Improvement Plan Contributions. The Developer specifically agrees to provide the following contributions to the City for use in the implementation of the Sandpointe Neighborhood Improvement Plan adopted by the city on August 20, 1990 (the "Sandpointe Plan"): (1) A contribution in the amount of $15,000, to be paid prior to the issuance of a building permit for the Office Building, to assist the City in paying for the cost of monitoring traffic activity in accordance with the Sandpointe Plan (the "Traffic Monitoring contribution"); and (2) A contribution in section 13 of this Agreement construction of improvements an amount determined pursuant to for use in conjunction with the set forth in the Sandpointe Plan 8 Ii ORDINANCE NO. NS-2106 09!1 (the "Sandpointe Improvements contribution"). Payment of the Sandpointe Improvements contribution shall be made prior to the issuance of a building permit for the office building. (b) Obliqations of the citv for Mitiqation Measures. The city agrees to use the Off-site street Improvements contribution to fund the measures required to mitigate the adverse environmental impacts which are identified in the EIR and which pertain to off-site traffic, circulation, and roadway and street improvements and to do so in a reasonably expeditious manner as sufficient funding becomes available. Included among the areas to be improved are the following: i) Intersections: MacArthur Boulevard - Main street; MacArthur Boulevard - SR-55 SB Ramps; MacArthur Boulevard - SR-55 NB Ramps; and MacArthur Boulevard - Hutton Centre Drive. MacArthur Boulevard - Red Hill Avenue ii) streets: MacArthur Boulevard; and Sunflower Avenue. The City also agrees to use the Traffic Monitoring contribution and the Sandpointe Improvements Contribution for the purposes stated above in subsection (a) (i v) of this section and to do so in a reasonably expeditious manner depending on the availability of sufficient funding and on priorities established jointly by the city and the Sandpointe neighborhood association. Except for the payment of the Off-site street Improvements contribution, the Traffic Monitoring Contribution, and the Sandpointe Improvements contribution, Developer shall have no obligations concerning the implementation or the funding or the construction of any measure required to mitigate any adverse environmental impact pertaining to off-site traffic and circulation and off-site street improvements, except for the payment of taxes, assessments, and fees established by ordinance of the City Council, the revenues of which may be used for such purposes; provided, however, that in the event of the formation of a special assessment district which is"designed to raise revenue to pay for any of the costs of the abovesaid off-site street improvements and which results in an assessment on the Property, Developer or its successor in interest in the Property shall receive credit for the payment of the assessment on the Property to the extent of the Off-site street Improvement 9 QRDINANCE NO. NS-2106 "v.100 Contribution paid by Developer. Nothing herein is intended to limit Developer's obligation to comply with reasonable conditions imposed by the city in its approval of the site Plan and the Map regarding traffic circulation and public improvements on the Property and in the public right-of-way bordering the Property. (c) Subseauent Environment Review. In exercising its legislative discretion to enter into this Development Agreement and to commit the city to the completion of the Development, the City has reviewed and considered the potential adverse environmental impacts related to all aspects of the contemplated project, including, without limitation, the potential demands the Development will make on local and regional streets, highways, parks and recreation areas, water capacity and sewer lines, flood and storm drain systems, and energy conservation, and the effect on school capacity, traffic, pedestrian safety, noise and air quality impacts. The City has further reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions, the projected future regional and cumulative environmental demands that will compete with the Development for available capacities and cumulatively add to potential adverse impacts. In so doing, the city has considered, among other things, the possibilities that: i) Federal, local, regional and state plans, if any, for prov~s~on of new infrastructure systems or expansion of existing infrastructure systems may be delayed, modified or abandoned; ii) The types, intensitie$, and amount of future regional development may exceed or otherwise be different from that currently being planned by the City and other local agencies; and iii) Regional and Development generated demands on infrastructure and utility improvements to be constructed as a part of the Development may exceed in either the short-run or the long-run the allocated capacities for such demands. After assessing these and other potential adverse environment impacts associated with the development of the Property, the City has imposed mitigation measures through the EIR and the subdivision review process and this Development Agreement, to the fullest extent the City considers feasible and necessary. The City has determined that the public benefits of the Development in the manner contemplated will itself provide the mitigation measures needed to contribute to alleviate shortrun "and long-run potential adverse environmental impacts which may arise during the development period; therefore, the city agrees, consistent with California Public Resources Code section 21166, that no subsequent or supplemental environmental impact report shall be required by the City for the subsequent discretionary approvals except as set 10 II ORDINANCE NO. NS-2106 . 'v 101 forth in said section. (d) The provisions of this section and section 13 of this Agreement shall survive any termination of this Agreement. 13. Determination of contributions. The base rate for the Off-site street Improvements Contribution shall be $4.25 per square foot of gross floor area of the Office Building. The base rate for the Sandpointe Improvements contribution shall be $0.59 per square foot of gross floor area of the Office Building or $110,000, whichever is greater. The amount to be paid by the Developer in the case of each contribution shall be the base rate as adjusted each year based on the Enqineerinq News Record Cost Index. Such adjustment shall occur on July 1 of ,each calendar year commencing with 1991. The adjusted rate shall be determined as of the date Developer files a complete application for a building permit for the Office Building, with the City, and such rate shall be subject to further adjustment after such date only if such application expires without issuance of a permit, or if, a permit issued pursuant to such application expires without the commencement of construction. As used herein, "gross floor area" means the total floor area encompassed within the outer walls of the Office Building, without reduction for the space taken by interior walls, stairways, elevators, and the like. 14. Assiqnment: Release. This Development Agreement shall not be severable from Developer's interest in the Property and the Development. Any transfer of the portion of the Property including the Office Building shall automatically operate to transfer the benefits and burdens of this Development Agreement in respect of such portion. Developer shall have the right to sell, assign, pledge as security or transfer all or any part of its interest in the Property along with all of its right, title and interest in and to all or any part of this Development Agreement to any person, firm or corporation at any time during the term of this Development Agreement without the consent of the City. Provided that Developer has provided the city with notice of such transfer, upon the sale, transfer or assignment of Developer's interest in all or any portion of the Property or the Development, Developer shall be released from its obligations under this Development Agreement arising subsequent to such transfer in respect of the transferred portion. The city agrees to execute any documents reasonably required by an assignee, transferee, lender or other party confirming the rights of such party under this Development Agreement or providing notices of default and rights to cure for the benefit of such parties. - 15. Periodic Review of Compliance. In accordance with Government Code Section 65865.1, the city Council shall review this Development Agreement at least once each calendar year hereafter. At such periodic reviews, Developer must demonstrate its good faith 11 v 1020RDINANCE NO. NS-2106 compliance with the terms of this Development Agreement. Developer agrees to furnish such evidence of good faith compliance as the Ci ty , in the reasonable exercise of its discretion and after reasonable notice to Developer, may require. Developer shall be deemed to be in good faith compliance with this Development Agreement if the city is not entitled by the terms and provisions of this Development Agreement to terminate this Development Agreement. It is understood that Developer is not under any obligation to commence construction of the Development within any time period or at all, and that nonconstruction of the Development is not a basis for the City to determine that Developer is not in good faith compliance with this Agreement. 16. Amendment or Cancellation. Except as otherwise provided for herein, this Development Agreement may ,be amended or canceled in whole or in part only by mutual consent of the parties, or their successors in interest, and in the manner provided in Government Code,Sections 65865.1, 65867, ,65867.5 and 65867. 17. Enforcement. Unless amended or canceled as provided in section 16, this Development Agreement shall continue to be enforceable by any party to it, notwithstanding any change or other regulations adopted by the city which alter or amend the rules, regulations or policies applicable to the Development. 18. Supersession of Aqreement bv Chanqes in state or Federal Law. In the event that state or federal laws, ordinances, rules, policies or regulations or the laws, ordinances, rules, policies, or regulations of any other governmental or quasi- governmental entity are enacted after the Effective Date of this Development Agreement, or the action or inaction of any other affected governmental jurisdiction prevents or precludes compliance with one or more provisions of this Development Agreement, or imposes a requirement on the Development materially different than as otherwise contemplated by this Development Agreement, or requires changes in plans, maps or permits approved by the city or the development standards set forth in the Development Agreement, the parties shall: (a) Provide the other party with 'written notice of such restriction, together with a copy of the applicable law, rule, regulation or policy and a statement in reasonable detail setting forth the conflict of same with the provisions of this Development Agreement; and (b) Promptly meet and confer with the other party in good faith and make a reasonable attempt to modify or suspend this Development Agreement to comply with such law, ordinance, rule, policy or regulation. Thereafter, regardless of whether the parties reach agreement on the effect of such law, ordinance, rule, policy or regulation upon this Development Agreement, the matter shall be scheduled for a hearing before the city Council upon 12 I I II ORDINANCE NO. NS-2106 103- thirty (30) days notice, for the purposes of determining the exact modification or suspension which is required by such law, ordinance, rule, policy or regulation. It is the express intent of the parties to modify the Development Agreement to allow for the development of the Development in as close conformity to the terms and conditions of this Development Agreement as reasonably possible. Nothing herein shall preclude Developer from challenging the conflicting law, rule, regulation or policy. 19. Enforced Delav and Extension of Times of Performance. In addition to specific provisions of this Development Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to: (i) War, insurrection, civil commotion., riot, flood, severe weather, earthquake, fire, casualty, acts of public enemy, acts of God, governmental restriction, litigation (including, without limitation, litigation contesting the validity, or seeking the enforcement or clarification of, this Development Agreement whether instituted by Developer, the city or any other person ,or entity), acts or failures to act of any governmental agency or entity; (ii) Inability to secure necessary labor, materials or tools, strikes, lockouts, other labor disputes, or delays of any contractor, subcontractor or supplier; or (iii) Inability to obtain and consummate necessary financing, or delays of any lender or third party relating thereto. An extension of time in writing for any such cause shall be granted for the period of the enforced delay, or longer as mutually agreed upon, which period shall commence to run from the time of commencement of cause. 20. Notices. Any notice or instrument required to be given or delivered to either party to the Development Agreement may be given or delivered by depositing the same in the united States mail, certified mail, postage prepaid, addressed to: city: City of Santa Ana 20 civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 Attention: Developer: PacTel Properties 200 E. Sandpointe Avenue, Suite 660 Santa Ana, California 92707 Attn: Timothy J. Mulrenan Vice President 13 "'-104 ORDINANCE NO. NS-2106 Whenever the city sends notice to Developer, the city shall also endeavor to send copies of such notice to the following, but 14 II ORDINANCE NO. NS-2106 105 failure to do so shall not effect the validity to Developer: of the notice sent PacTel Properties 111 pine street, suite 1700' San Francisco, California 94111 Attn: Peter L. Clark President and: Arter, Hadden, Lawler, Felix & Hall 700 South Flower Street, suite 3000 Los Angele~, California 90017 Attn: Robert P. Andreani, Esq. Partner Notice of a change of address shall be delivered in the same manner as any other notice provided herein, and shall be effective three days after mailing by the above-described procedure. 21. Default and Remedies. (a) Developer's Default. Developer shall be in default under this Agreement upon the happening of one or more of the following events or conditions: i) If a material warranty, representation or statement made or furnished by Developer to the city is false or proves to have been false in any material respect when it was made; ii) A finding and determination by the City council made following a periodic review under Section 15 that upon the basis of substantial evidence, Developer has not complied in good faith with a material requirement of this Development Agreement; or iii) An express repudiation, refusal or renunciation of this Development Agreement, if the same is in writing and signed by the Developer. (b) citv's Default. The city shall be in default under this Development if it shall: i) fail to comply in good faith with the requirements hereof regarding the permitted development 15 10'6 ORDINANCE NO. NS-2106 standards and uses specified herein, or city's obligations under section 12, or ii) expressly r~pudiate, refuse or renounce this Development Agreement in writing. 22. Procedure Upon Default. (al Notwithstanding any provision of this Development Agreement to the contrary, except for Developer's default under section 21(a) (iii), Developer shall not be deemed to be in default under this Development Agreement, and the city may not terminate Developer's rights under this Development Agreement unless the city shall have first delivered a written notice of any alleged default to Developer, which shall specify the nature of such default. Except for Developer's default under Section 21(a) (iii), if such default is not cured by Developer within ninety (90) days of service of such notice of default, or with respect to defaults which cannot be cured within such period, Developer fails to commence to cure the default within sixty (60) days after service of the notice of default, or thereafter fails to diligently pursue the cure of such default until completion, the City may terminate Developer's rights under this Agreement. Upon the occurrence of a default by the city, as described in section 21(b)(i), Developer may give written notice to the City specifying the nature of such default. If the City has not cured such default within ninety (90) days of such notice, an event of default by the City shall be deemed to have occurred. The occurrence of a default by the city under section 21(b) (ii) above shall, at the option of Developer, and upon written notice to the city, immediately constitute an event of default by the city. (b) In the event a breach of this Development Agreement occurs, irreparable harm is likely to occur to the nonbreaching party and damages may be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that specific enforcement of this Development Agreement is a proper and desirable remedy. (c) In no event shall either party be entitled to damages against the other party based on the other party's default under this Agreement. 23. Entire Aqreement. This Development Agreement and the Exhibits therein contain the entire agreement between the parties, and is intended by the parties to completely state the Development Agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties of any party in relation thereto, not expressly set forth in this Development Agreement, is null and void. 16 II ORDINANCE NO, NS-2106 107 24. Mortaaqees. In the event the city receives written notice from any institutional lender or pension trust (a "Mortgagee") that it has obtained a deed of trust or mortgage on all or any portion of tl:le Property (a "Mortgage"), together with a copy thereof, the City agrees as follows: (a) The city shall mail, first-class, postage prepaid, to each Mortgagee a copy of any notice (the "First Notice") given to Developer under section 22 concurrently with the giving of such notice to Developer. If the default specified in the First Notice is one described in either section 21(a) (i) or section 21(a)(ii), and if Developer fails to cure such default within the period allowed in section 21, the city shall give written notice (the "Second Notice"), to each Mortgagee of such failure. (b) The City shall not terminate or cancel this Agreement, irrespective of the provisions of section 22 unless (i) the City has given to each Mortgagee the notice or notices required by Section 22, (ii) no Mortgagee has within 30 days following the giving of the First Notice (if the default specified therein is one described in section 21(a)(iii)), or within 30 days following the giving of the Second Notice (if the default specified in the First Notice is one described in section 21(a) (i) or section 21(a) (ii)) (x) cured any default arising solely from the failure to pay amounts due and owing to the city hereunder, and (y) commenced the exercise of remedies available under the Mortgage or obtained a deed-in-lieu thereof, and (ii) no Mortgagee, purchaser at a foreclosure sale held under the mortgage, or purchaser from Mortgagee (a "Purchaser") has, within 30 days following the obtaining. of title to the Property, or portion thereof originally covered by the Mortgage (but in no event later than 90 days following the giving of the First Notice (if the default specified therein is one described in Section 21(a) (iii), or within 90 days following the giving of the Second Notice (if the default specified in the First Notice is one described under Section 21(a) (i) or Section 21(a) (ii)) (x) cured all defaults which are, by their nature, curable within such period, and (y) commenced, in good faith, to cure all other defaults which, by their nature are not curable within such period, and diligently proceeded to cure all such defaults within a reasonable time. A default under section 21(a) (iii) shall be deemed cured by the giving of a written agreement by any such Mortgagee or Purchaser to continue to be bound by the terms of this Development Agreement. (c) The city shall accept the performance of any such Mortgagee or Purchaser as if such performance were rendered by Developer. Each Mortgagee and each such Purchaser shall have the right but not the obligation, to remedy any defaults of Developer within the time specified herein. No 17 108 ORDINANCE NO, NS-2106 Mortgagee or Purchaser shall have any liability under this Development Agreement except for acts or events which occur while such Mortgagee or Purchaser holds title to the property or portion thereof. (d) The provisions of this Section 24 are solely for the benefit of Mortgagees and Purchasers and shall not otherwise impair any rights of the City against Developer. (e) No default or event of default hereunder by Developer shall defeat, impair or render invalid the lien of any deed of trust made in good faith and for value as to the Development or any portion thereof. (f) The City, by resolution of the City Council, may modify or add to the provisions of this Section 24 at the request of any institutional lender or pension trust providing financing so long as such requested modifications or additions pertain only to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of this Development Agreement. 25. Severability. If any term, provision, condition, or covenant of this Development Agreement, or the application thereof to any party or circumstances, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition or covenants or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid' or unenforceable, shall not be affected thereby and each term and provision of this Development Agreement shall be valid and enforceable to the fullest extent permitted by law. 26. Counterparts. been executed in one or more been deemed an original, but the same instrument. This Development Agreement has counterparts, each of which has all of which constitute one and 27. Estoppel Certificate. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Development Agreement is in full force and effect and a binding obligation of the parties, (ii) this Development Agreement has not been amended or modified either orally or in writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in default in the performance of its obligations under this Development Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within ten (10) days following the receipt thereof. 18 II ORDINANCE NO. NS-2106 ion The City Attorney of the city shall have the right to execute any certificate requested by Developer hereunder. The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees or other parties. IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above written. ATTEST: CITY OF SANTA ANA ~.- v. ~.1 ice C. Guy' - Clerk of the Coun 'l by APPROVED AS TO FORM: ~(jb Edward J. 0 .' City Attorney t&llt ~ IC~ rb- by CIty Manager by T 19 ORDINANCE NO, NS-2106 V', .110 STATE OF CALIFORNIA) )55: COUNTY OF ORANGE ) On this 1 t\r-. day of . ~C8fI\'nef ,19.30, before me th" undersigned, a Notary PublJ.c in and for said state, personall~! appeared TIMOTHY J, MULRENAN, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President, on behalf of PACTEL PROPERTIES, a California Corporation, the corporation that executed the within instrument, and acknowledged to me that said corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. Notary STATE OF CALIFORNIA) )SS: COUNTY OF ORANGE ) OFFICIAt SEAL JEANNE L TOlENTINO NOrAllY PUlUC. CAlFCIIINIA 0IlANGE COIJHJY My CIlmm. flroIot. .,",y II, 1"3 ORDINANCE NO. NS-2106 T I State of califOrnia} 55. County of Orange On this!rd day of fJ?(JA~ it year ,(( q, . before me . Clerk of the Council or &i./MtJ.pfL .:1. p" ""6- . Deputy Clerk of the Council of the City of Santa Ana personally appeared ' PA#/13L. tI. fo",v~ , personally known to me (or proved to me o'n the basis of satisfactory evidence) to be the person who executed this instrument as ~61/1Jt<- of the City of Santa Ana and acknOwledged to me that the City of Santa Ana executed it. ~~ t~~~4 \'~j.1 ~ On this ~/:1l day of 111Ur-A- , in the yearl/fI' . before me , Clerk of the Counci' orJ::L./7-~TIf .--t. PAV~, Deputy Clerk of Ihe Council of the City of Santa Ana personally appeared ~(~" C trt.<. " , perSOnally known to me (or proved to me on the basis of satisfactory evidence) to b the person who eXecuted this instrument as 7/ L- of the City of Santa Ana and acknowledged to me that the City of Santa Ana execuled it. State of California } 55. County of Orange ~(~ ~. .~ ~ ptl ~. -, ~ 111 Ii 112 ORDINANCE NO. NS-2106 ORDER NO. 83-07959-12 SCHEDULE A THE ESTATE OR INTEREST IN THE LAND .HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY TH[S REPORT IS: A FEE T[TLE TO SA[D ESTATE OR [NTEREST AT THE DATE HEREOF IS VESTED IN: PACTEL PROPERTIES,'A CALIFORNIA CORPORATIbN THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CAL[FORNIA. COUNTY OF ORANGE AND [S DESCRIBED AS FOLLOWS: ALL OF PARCELS 4, 5, 6 AND "8, TOGETHER WITH A PORT ION OF PARCEL 7 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE. STATE OF CALIFORNIA. ACCORDING ~O PARCEL MAP 79-879 FILED IN BOOK 151, PAGES 21 TO 23, INCLUSIVE OF PARCEL MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS PARCELS 4.5,5 AND g'IN LOT LINE ADJUSTMENT LL 83-2 RECORDED MAY 20, 1983, AS INSTRUMENT/FILE NO. 83-215091 OF OFFICIAL RECORDS. :., .... 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