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HomeMy WebLinkAboutMAIN STREET CONCOURSERECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 A q q &- a(4 , okpA,� 02fe 0 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder FEE 2005000258102 11:15am 04/06/05 Ill 42 A17 36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 FREE RECORDING GOVERNMENT CODE § 6103 FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and MAIN STREET CONCOURSE, LLC Dated: February 14, 2005 A-2005-052 AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND MAIN STREET CONCOURSE, LLC This AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City") and MAIN STREET CONCOURSE, LLC, a California Limited Liability Company ("Owner" or "Property Owner"). 1. RECITALS, This Agreement is entered into with reference to the following facts: 1.1 Original Agreement. The City and Owner's predecessor in interest, Orient Corporation of America, Inc., a California corporation ("Orient"), are parties to that certain Development Agreement entered into on or about May 3, 1993 and recorded as Document Number 93-0395606 with the Recorder's Office of the County of Orange (the "Original Agreement"). (1) The purpose of the Original Agreement was to facilitate the development of the mixed -use project contemplated by the City's Specific Design Zoning Designation SD-59 (SD-59), Vesting Tentative Map No. 14408 and EIR No. 93- (2) Orient's interest was subsequently acquired by Owner, who has applied to the City for approvals of a modified project, including an amendment to SD-59 and a new vesting tentative map. (3) The City and Owner agree that the changes Owner seeks in the Original Agreement substantiate the need to amend and restate the Original Agreement. 1.2 Code Authorization. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both the City and Owner in the development process. The City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with the City's General Plan, applicable Specific Plans and Specific Development District No. 59, as modified concurrently herewith by Ordinance No. NS-2676. (3) This Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District No. 59. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process., as further provided in this Agreement. (5) This Agreement will allow the City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to the City for entering into this Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.2 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in the City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein (hereinafter the "Property"). The Property is approximately 17.72 acres in size (and approximately 18.76 acres before dedications) and is vacant. 1.3 Approval of Owner. Owner further hereby represents that it has approved this Agreement and is authorized to enter into this Agreement. 1.4 Planning Commission - Council Hearings. On October 25, 2004, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Agreement. This public hearing was duly held, all public testimony was attended to, and consideration of this matter continued by the Planning Commission to its regular meeting of December 13, 2004, on which date the Planning Commission recommended to the City Council of the City that it execute this Agreement. On February 7, 2005, the City Council of the City of Santa Ana ("Council"), after providing notice as required by law, held a public hearing to consider the Owner's application for this Agreement. Following this public hearing, the matter was continued the Council's next regular meeting, on February 22, 2005, in order to make certain changes to this Agreement, SD-59 and Vesting Tentative Map No. 14408, to all of which the Owner voluntarily agreed. 1.5 Council Findings. The Council finds that this Agreement is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On March 7, 2005, the Council adopted Ordinance No. NS-2677 approving this Agreement. The ordinance becomes effective thirty (30) days thereafter. 2. DEFINITIONS. In the Agreement, initially capitalized terms used but not defined shall have the following meanings unless the context otherwise requires: 2.0.5 "Executive Director" means the Executive Director of the City's Planning and Building Agency or designee. 2.1 "Final Design" means the final design documents for a work of public art, which is set forth in greater detail in paragraph 5.8 of this Agreement. 2.2 "Map" means Tentative Tract Map No.2004-06 , approved concurrently with this Agreement. 2.2 "Property Owner" or "Owner" means Main Street Concourse, LLC, being the person, persons, or entity having a legal or equitable interest in the Property, and includes Main Street Concourse, LLC's successors in interest. 2.3 "Property" is the real property described in Exhibit A and referred to in Exhibit B. 2.4 "Project" is the development of the Property as generally set forth in SD-59, Tentative Tract Map No. 2004-06, Conditional Use Permit No. 2004-28, Environmental Impact Report No. 2004-01, and Site Plan Review No. 2004-05. 2.5 Public Art Locational Plan means the conceptual Plan attached hereto as Exhibit C. The parties recognize that the Locational Plan sets forth the general description of the location of the Public Art required by this Agreement, and is subject to refinement at the time of installation, by Agreement of the Owner and the Executive Director. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Referred to Designation Dc'9cri tion jn.section A Property Legal Description 1.2 B Property Graphical Description (Site Plan) L2 C Public Art Locational Plan 2.5 D Phasing Plan 5.1.1 E Remaining Offsite Mitigation Measures 5.1.2 Residential High Rise Tower Study Area 5.4 4. GENERAL PROVISIONS. 4.1 Amendment and Restatement. This Agreement amends, restates and supersedes the Original Agreement in its entirety. 4.2 Property Subject to the Agreement. Until released pursuant to the provisions of Section 8.6 below, no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.3 Effective Date; Duration of Agreement. The "Effective Date" of this Development Agreement shall be the date that the City Council ordinance adopting this Development Agreement becomes effective, which date is thirty (30) days after the City Council meeting at which such ordinance is adopted, unless this Agreement or Ordinance No. NS-2676 (the amendment to SD-59) is the subject of a referendum which has received a prima facie sufficient number of signatures or unless its effective date is stayed by order of a court with jurisdiction. The remaining term of this Agreement shall extend for the same period as specified in the Original Agreement, unless this Agreement is earlier terminated or its term modified by further agreement fully executed by both parties; provided, however, that nothing herein is intended nor shall it be interpreted to extend the period of validity of any approval issued in conjunction with the City's Development Project Plan process or building permit, beyond local requirement. Except as expressly stated herein, paragraph 3 of the Original Agreement shall remain in full force and effect. (b) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the term of the Map, including any lot line adjustment or merger of lots (or any other tentative map filed subsequent to the Effective Date of this Agreement), shall not expire during the term of this Development Agreement remains in effect. (c) Notwithstanding subsections (a) or (b) hereof, if, at the end of the original or any modified term, the Property is in the process of being developed, the term of this Development Agreement shall be further extended until such construction in process is completed, not to exceed an additional three years after expiration of the original or modified term. (d) The expiration of this Development Agreement shall not terminate any land use approvals approved concurrently with or subsequent to the approval of this Development Agreement, but shall merely end the period as to which such approvals are vested against subsequent changes in applicable law. (e) Upon the expiration or termination of this Development Agreement for any reason, the City and Owner and its successors and assigns agree to cooperate and execute any document reasonably requested by the other party to remove this Development Agreement from the public records as to the property or any applicable portion thereof. 4.4 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that except as provided in section 4.4.1 of this Agreement the rights of Owner under this Agreement may not 5 be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for ownership, investment, use or development by them in accordance with the provisions of this Agreement. 4.4.1 Assignment to Controlled Assignee. Notwithstanding the above, consent shall not be required in connection with a Permitted Transfer (as herein defined) of Property of Owner provided City Council is notified of such Permitted Transfer and furnished with copies of the fully executed instruments effectuating same within fifteen (15) business days after the effective date thereof. For purposes hereof, the capitalized terms used herein shall be defined as follows: (i) "Permitted Transfer" shall mean Transfer of the Property or direct or indirect interests in Owner if, following the transfer (a) the Property remains under the Legal Control (defined below) of Robert H. Bisno, or, upon the death of Robert H. Bisno, his heirs or devisees, or (b) foreclosure pursuant to the provisions of section 8,5 of this Agreement. (ii) "Legal Control" shall mean the power or authority, directly or indirectly through one or more intermediaries, through the ownership of voting securities, by contract or otherwise, to direct the management, activities or policies of such person or entity. (iii) "Transfer" shall mean any change in the direct or indirect members, partners, shareholders or principals in the ownership of an entity or other ownership components of such entity. 4.5 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868; provided, however, that as specified in section 5.5.1 of this Agreement the Executive Director may approve one or more minor changes in the Project only to the extent that such changes are not required by State law or the City Municipal Code to be decided by the Zoning Administrator, Planning Commission (or other City Commission) or City Council. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.6 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement except as may be provided in Section 6.3(5) of this Agreement. 4.7 Hold Harmless. Property Owner agrees to and shall hold the City, its officers, agents, employees, consultants, special counsel, and representatives harmless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Property Owner or its contractors, subcontractors, agents, employees, or other persons acting on its behalf which relates to the Project; and (2) from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement, other than a breach by the City of its obligations hereunder. Property Owner agrees to pay all costs for the defense of the City and its officers, agents, employees, consultants, special counsel, and representatives regarding any action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have been caused by reason of Property Owner's actions in connection with the Project, any third party claims arising out of this Agreement, or any approval or certification by the City relating to the Project. This hold harmless Agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this paragraph or due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from this Agreement, The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, excluding fees and costs for special counsel to be selected by the City or other outside counsel or consultants, if any, regarding any action by a third party -challenging the -validity -of this — - Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4.8 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.4 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest. 4.9 Relationship of the Parties. The contractual relationship between the City and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 4.10 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile in the manner provided in this Section, to the following persons: If to the City, to: and, City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6954 City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: and, Main Street Concourse, LLC c/o Transaction Companies 1800 Century Park East, Suite 450 Los Angeles, CA 90067-1518 Attn: Robert H. Bisno Telefacsimile (310) 277-3787 P. Thomas Muller, Esq. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, California 90071 telefacsimile (213) 430-6407 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. The rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s), density, height, size of structures and intensity of use of the Property, and provisions for reservation or dedication of land for public purposes and any other exactions or mitigation measures applicable to the Project shall be those rules, regulations, and policies applicable to the Property as of the Effective Date, including those set forth in District Plan No. 59, as amended concurrently herewith. 5.1.1 Phasing of the Project. The City agrees and acknowledges that the Project may be phased by Owner pursuant to the Phasing Plan attached to this Agreement as Exhibit D. 5.1.2. Reserved. 5.1.3 Remaining Offsite Mitigation Measures. The parties acknowledge and agree that Owner's predecessor in interest under the Original Agreement, has constructed or caused to be constructed many of the offsite mitigation measures required by the Original Agreement, which mitigation measures were scaled to mitigate impacts from a substantially larger project than Owner's. Therefore, the sole remaining offsite mitigation measures which must be funded or constructed by Owner are as set forth in Exhibit E to this Agreement. 5.2 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, the City retains the right to enact police power regulations on matters not covered by this Agreement, including without limitation ("Reserved Powers"): a. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with this Agreement. Owner 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: (1) Existing taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; (3) 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; and (4) Procedural rules of general City-wide application. b. No vested rights as to any requirements in this section 5.2 either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5.3 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Project construction, shall be subject to applicable design standards and guidelines, including without limitation SD-59 and Chapter 41 of the Santa Ana Municipal Code, in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 Future, Proposed Residential, High Rise Towers. a. Without in any way affecting the rights vested pursuant to this Agreement, Owner shall meet and confer in good faith with the City on whether to construct a residential, for -sale, high rise tower on the Property in the general location as specified in Exhibit F to this Agreement, in lieu of the single family residential development at the density of 1 unit per acre approved for such area concurrently herewith. The parties hereto acknowledge and agree that the City's discretionary review of any such proposal together with any approvals sought to develop any such tower on the Property shall be deemed to fall within the provisions of section 5.5 of this Agreement, and not be covered by section 5.1 of this Agreement-. If, after good faith investigation and consideration the Owner has not concluded by August 1, 2005, that a high rise development is feasible, Owner may proceed with development as approved concurrently herewith. No fees, exactions, mitigation measures or dedications shall be required with respect to such area until development commences thereon. b. In consideration of the above, and the extraordinary and significant benefits that Owner acknowledges and agrees that it has received in executing this Agreement, Owner voluntarily waives any claim, and holds harmless the City, its officers, agents and employees, from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement or the Project, other than a breach by the City of its obligations hereunder. Said waiver and hold harmless shall be in addition to that set forth in other provisions of this Agreement, including but not limited to section 4.7. 5.5 Future Discretionary Approvals. This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by this Agreement subsequent to the effective date of this Agreement from applying new rules, regulations, and policies which are applicable to the Property, including but not limited to, material changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for discretionary land use entitlements based on such existing or new rules, regulations, and/or policies; provided however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely 10 with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 5.5.1 Minor Changes. Upon application of Owner, the Executive Director may approve minor modifications to the discretionary approvals vested pursuant to this Agreement, provided that such changes are consistent in scope and intention with such approvals. The Executive Director has the sole and absolute discretion to determine what constitutes a "minor modification." 5.6 Processing Fees. All fees and charges intended to cover the City's costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the negative declaration prepared for the Project, or (b) duplicate any exactions, project design features, conditions of approval, Agreements, or mitigation measures contained in the Development Plan or this Agreement. 5.8 Development, Construction and Completion of Work of Public Art. In consideration for the extraordinary and significant benefits to the City set forth in this Section, the Owner has been legally vested under paragraph 5.1 with regard to the permitted uses of land, density, and intensity of use, Owner shall include within the Project at one or more prime locations visible to the public from currently existing public right-of-way, one or more permanent works of public art (the "Public Art"). The Owner shall design and/or construct the facilities specified below prior to the corresponding triggering event specified in section 5.8.1 below. The Public Art shall conform in all respects to Exhibit C of this Agreement, the "Public Art Locational Plan." 5.8.1 Work of Public Art. 1. Submit Final Design of Public Art. Prior to issuance of first Building Permit or four Final design must conform to Public Art (4) years from the effective date of this Locational Plan. Agreement, whichever comes first. 2. Install Public Art. Prior to the City's issuance of Certificate of Use 11 and Occupancy for any building, or five (5) years from the effective date of this Agreement, whichever comes first: With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this Agreement within the times specified above. During periods of construction of the work of public art encompassed in the Public Art Locational Plan, Owner shall submit to the City a written report of the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City, and shall include a reasonable number of construction photographs (if requested) taken from the last report by Owner. Development scheduling or date or times of performance may be subject to revision from time to time if first mutually agreed to in writing. Such revisions do not constitute amendments requiring further notice and public hearing. 5.8.2 Inclusionary Housing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit (or live -work unit) as a condition of issuance of each building permit. This fee shall be used by the City to build new or substantially rehabilitate existing affordable housing in the City. 5.8.3 Cultural In -Lieu Fee. The parties acknowledge that the Original Agreement included the requirement that Owner construct a 125-fixed seat legitimate theater as part of a dual-purpose, "multiplex" motion picture theater complex Due to modifications to the Project from the Original Agreement to this Agreement, Owner agrees that in lieu of constructing said theater, it will pay the City a fee of $400,000.00 upon the issuance of the first building permit for the Project. The City agrees to use this fee toward the design and construction of a theater. 5.8.4. Parr Requirements. a. Santiago Park Improvements. The Owner shall pay a special Santiago Park fee of $1.64 per square foot of net rentable or salable square feet of development as a condition of issuance of each building permit. The parties acknowledge and agree that this contribution is in addition to any tax or fee or dedication imposed by the City on new residential development. The City shall use said fees for deferred maintenance and capital improvements to Santiago Park. If not used or appropriated within five years after payment, this fee shall be returned to Owner, consistent with the provisions of and exceptions contained within the California Mitigation Fee Act, Government Code § 66000 et seq. This fee shall be offset against the fee owed the City pursuant to section 5.8.4(b) of this Agreement (i.e., the amount in the "In - Lieu Park Fee" required of Owner shall be reduced by an amount equal to the special Santiago Park fee paid by Owner pursuant to this section). b. In -Lieu Park Fee. The Owner shall pay an "in lieu" fee at the value of $35.50 per square foot of area to be dedicated pursuant to the standard established by section 34- 204 et seq. of the Santa Ana Municipal Code, as specified in the City's site plan review letter; provided, however that the fee may be increased yearly by the average rate of increase in land 12 costs in the City of Santa Ana, as that increase is established by the annual change in the "Construction Cost Index -Los Angeles," published by Engineering News -Record, or substitute index chosen by the Executive Director should this index is discontinued. The fee shall be paid for each phase, as set forth in section 5,1.1 of this Agreement, prior to issuance of the first building permit for that phase, and shall be utilized by the City in the Quadrant of the City (as set forth in the City's Park A&D Fee program) in which the Project is located, with priority given to Santiago Park. 5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and Restrictions (CC&R's) must be provided and approved by the Executive Director for the project prior to the issuance of the first building permit. Such CC&R's must contain at a minimum, the following: (1) No more than four residents per live -work unit. (2) All residential and live -work units shall remain owner occupied and shall not allow rental of the entire unit. (3) Use Restriction for Live -Work Units. The live -work project must remain as a live -work community. The work component shall be limited to one of the allowable uses as specified in the Specific Development (SD-59) zoning district. (4) Repair of perimeter walls will be specified in the CC&R's in the event of damage. (5) The CC&R's shall provide notice to prospective owners of the urban character of the City and this area, including but not limited to the permitted uses of the property and buildings in the immediate area of the development (e.g.., Main Place Regional Shopping Mall, and surrounding property zoned and/or devoted to commercial use), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (6) The CC&R's shall reflect that ground floor space in the live -work units shall be restricted to work/retail activities. (7) The CC&R's shall reflect that balconies may not be used for storage. (8) Terms and Content: i. CC&R's are to be in effect for 66 years. ii. Any proposed modifications to the foregoing provisions of the CC&R's will require approval by the Executive Director. 13 5.9 Responsibility For Costs of Work Of Public Art. The City and Owner agree that Owner shall be responsible for all costs associated with the design, construction, maintenance and repair of the work of public art provided for in the Public Art Locational Plan. 5.10 City to Receive Contract Documents. Owner shall furnish the City, upon written request, copies of contracts and supporting documents relating to the work of public art. 5.11 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Agreement. 5.12 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property or the implementation or construction of a mitigation measure, the City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property or this Agreement. 5.13 Compliance With Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. The City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after the annual review set forth in Section 6.1 above, the City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon 14 information known or made known to the City Council, the City Planning Commission and/or the City Executive Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.1 Owner Events of Default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions (each, an "Owner Event of Default"): (1) If a material warranty, representation, or statement made or furnished by Property Owner to the City is false or proves to have been false in any material respect when it was made; or (2) A finding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 658651 and Section 6.1 of this Agreement that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the material terms or conditions of this Agreement; (3) Failure to comply with Governmental Requirements; (4) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon an Owner Event of Default, the City through the Executive Director shall submit to Owner, a written notice of default, in the manner provided in Section 4.10, identifying with specificity the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. Upon receipt of the notice of default, the Owner shall cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure in any event not later than one hundred and twenty (120) days after receipt of the notice of default, or such longer period as is reasonably necessary to remedy such default(s), provided that the Owner shall continuously and diligently pursue such remedy at all times until such default(s) is cured. If Owner has failed to remedy or diligently proceed to remedy such default(s) after proper notice and expiration of said one hundred and twenty (120) day cure period or such extended period as provided herein, the City may terminate or amend this Agreement in accordance with the procedure adopted by the City. Failure or delay in giving notice of default- shall not constitute a waiver of any default, nor shall it change the time of default. 15 (2) If after the cure period has elapsed, the Executive Director finds and determines that Owner has not cured the default pursuant to this Section 7.2, Owner shall be entitled to appeal that finding and determination to the City Council by filing an appeal with the City Clerk, if at all, within fourteen (14) days after the mailing of such finding and determination to Owner, or its successors, transferee, and/or assignees, as the case may be. The City Council shall act upon the finding and determination of the Executive Director within ninety (90) days after the filing of such appeal. In the event of a finding and determination that all defaults are cured, there shall be no appeal by any person or entity. (3) The City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. (4) Non-performance shall not be excused because of a failure of a third person. (5) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (6) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner. (7) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against the City upon termination of this Agreement for an Owner Event of Default. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other 101 security device (or any number of them) securing financing with respect to the Property or its improvement (any such encumbrance, a "Mortgage"). 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns ("Mortgagee") shall, upon written request to the City, be entitled to receive from the City written notification of any Owner Event of Default. 8.3 Performance of Covenants. The Mortgagee shall have the right, but no obligation, to perform any term, covenant or condition and to remedy any Owner Event of Default hereunder within the time periods specified herein, and the City shall accept such performance with the same force and effect as if furnished by the Owner; provided, however, that said Mortgagee shall not thereby or hereby be subrogated to the rights of the City. 8.4 Default by the Owner. In the event of an Owner Event of Default that has not been cured by the Owner or as to which there is no cure period hereunder, the City agrees not to terminate this Agreement (1) unless and until the City provides written notice of such default to any Mortgagee and such Mortgagee shall have failed to cure such Owner Event of Default within ninety business days after the later of delivery of such notice or expiration of any applicable Owner cure period, and (2) as long as: (a) In the case of an Owner Event of Default that cannot practicably be cured by the Mortgagee without taking possession of the Property (which defaults shall not include defaults "not susceptible of being cured" as defined below), (x) the Mortgagee has delivered to the City, prior to the date on which the City shall be entitled to give notice of termination, a written instrument wherein the Mortgagee unconditionally agrees that (subject to such delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution event) it will commence and diligently pursue cure of such Owner Event of Default promptly following its obtaining possession and; (y) said Mortgagee shall proceed diligently to obtain possession of the Property (including possession by receiver) (subject to such delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution event) and, upon obtaining such possession, shall proceed diligently to cure such Owner Event of Default; and (b) In the case of an Owner Event of Default that is not susceptible to being cured by the Mortgagee, the Mortgagee shall institute foreclosure proceedings and diligently prosecute the same to completion (subject to such delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution event) (unless in the meantime it shall acquire the Owner's right, title and interest hereunder, either in its own name or through a nominee, by assignment in lieu of foreclosure) and upon such completion of acquisition or foreclosure such Owner Event of Default shall be deemed to have been cured. The Mortgagee shall not be required to obtain possession or to continue in possession as Mortgagee of the Property pursuant to Subsection 8.4(a) above, or to continue to prosecute foreclosure proceedings pursuant to Subsection 8.4(b) above, if and when such Owner Event of Default shall be cured. Nothing herein shall preclude the City from exercising any of its rights or remedies with respect to any other Owner Event of Default during any period of 17 such forbearance, but in such event the Mortgagee shall have all of its rights provided for herein. If the Mortgagee, its nominee, or a purchaser in a foreclosure sale, shall acquire title to Owner's right, title and interest hereunder and shall cure all Owner Events of Defaults that are susceptible of being cured by the Mortgagee or by said purchaser, as the case may be, then prior Owner Events of Default that are not susceptible to being cured by the Mortgagee or by said purchaser shall no longer be deemed Owner Events of Default hereunder. Except as set forth herein, nothing contained herein shall require any Mortgagee to cure any Owner Event of Default. 8.5 Foreclosure. Foreclosure of any Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in a Mortgage, or any conveyance of the Project from the Owner to a Mortgagee or its designee through, or in lieu of foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, sale or conveyance the City shall recognize the purchaser or other transferee in connection therewith as the Owner hereunder provided that such purchaser or transferee assumes, subject to the terms of Section 8.4 above, each and all of the obligations of the Owner hereunder pursuant to an assumption agreement satisfactory to the City. If any Mortgagee or its nominee or assignee shall acquire the Owner's right, title and interest hereunder as a result of a judicial or nonjudicial foreclosure under any Permitted Mortgage, or by means of a deed in lieu of foreclosure, or through settlement of or arising out of any pending or contemplated foreclosure action, such Mortgagee shall thereafter have the right to assign or transfer the Owner's right, title and interest hereunder to an assignee upon obtaining the City's consent with respect thereto, which consent shall not be unreasonably withheld or delayed. Upon such acquisition of the Owner's right, title and interest hereunder as described in the preceding sentence by either Mortgagee, or the assignee or nominee of Mortgagee, or the purchaser from Mortgagee, assignee or nominee, the City shall immediately execute and deliver a new agreement or amend this Agreement with such party, upon the written request therefor by such party given not later than one hundred twenty (120) days after such party's acquisition of the Owner's right, title and interest hereunder. Subject to the terms of Section 8.4 above, such new agreement or amended Agreement shall be substantially the same in form and content to the provisions of this Agreement, except with respect to the parties thereto, and the elimination of any requirements which have been fulfilled by the Owner prior thereto, and said agreement shall have priority equal to the priority of this Agreement. Upon execution and delivery of such new agreement or amended Agreement, the City shall cooperate with the new owner, at the sole expense of said new owner, in taking such action as may be necessary to cancel and discharge this Agreement and to remove Owner named herein from the Property. 8.6 Releases. The City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property, or any portion thereof, the City shall execute and deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect the release. 18 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement, including without limitation the Original Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of the City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of the City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of performance of this Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and the City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) the City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected 19 governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The patties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such -federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9. 10 No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. In addition, the provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to Such party as the source of the language in question. 9.11, Arms Length Transaction. Each party represents and warrants to the other the following: it has carefully read this Agreement, and in signing this Agreement it does so with full knowledge of any rights which it may otherwise have, and it has freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party or its agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 9.12 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana acting by and through its City Manager, pursuant to Ordinance No. NS-2677, authorizing such execution, and by Property Owner. Dated this 7th day of March, 2005. THE CITY OF SANTA ANA By DAVID N. REAM City Manager (signatures continued on next page) 0 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange f SS. Oil March 24, 2005, before me, ClaUdiz ' I. M. Fernandez -Shaw, Notary Public, Name it fide crf_fricer ( g., "Jane Doe, Nwary Public") J- personally appeared David N. Ream Name(s) ofSignei(s) —. z 1, L�rpersonally known to me 0 proved to me on the basis of satisfactory evidence CLAUDIA M. FERNANDEZ-SHAW 4 to be the personwhose nairiq�-e subscribed to the within instrument Commissaeon # 1336674 z Notary Public - Califonnis and acknowledged to me thatJj9NhtYthuy executed Orange County MY Cm,111. Edres Jan 25, 20=JOB the same In kU/he&ftTir authorized capacity(i-es), and that by 'Qhfar/thei� signature(s) oil the instrument the person , , or 'so, the entity upon behalf of which I . erso I I e r acted, executed the instrument. Place Nowy Scal Aboyc M0 M, S rny/41and and official seal, ofNctary Though the iixft-nialioii below is not required by law, it maypi-ove valuable to persons i-elying oii the document And cotilcipi-eveiit.f;-ai,idaileiit removal and reattachment qfthis fbi-m to another document Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: F] Individual Corporate Officer —Title(s):_ ❑ Partner -- R Limited E] General ❑ Attorney in Fact ❑ Trustee F-1 Guardian or Conservator D Other: Number of Pages: Approved as to Forin: L-1m, (signatures continued from previous page) MAIN STREET CONCOURSE LLC, a California limited liability company By: Its Development Merger, BDC LLC, a California I,imi"liability company By: 21 H. Bisno, Its Manager State of California ss. County of to On L, before me, ILIQdC D to Name and Title of Office, (e g, "Jane Doe, Notwy Poblic") personally appeared of 5fpersonally known to me E-1 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is�a; subscribed to the within instrument and acknowledged to me that he/sha/thex"executed the same in his4hp-r1theirt" authorized capacity(ies), and that by hisilher4hailr— signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. MIT"N", Title or Type of Document: Document Date: Ctt'JAV1CL%,k Number of Pages: Signer(s) Other Than Narned AIJ(0)e: f Capacity(ies) Claimed by Signer Signer's Name:.._.._..........___ t, Ac LJ Individual Ll Corporate Officer El Partner — 7 Limited FI) Attorney -in -pact 7 Trustee F] Guardian or Conser\, ",tl Other: it Signer Is R (l,1111" Title(s): — —7 General M MUM top Of thUrrib I ere (o 91;109 National Notary Association + 9350 De Soto Ave., W.U. Box 24C2 - Chalsworth, CA 91313 2402 � www.nitionalnotary.org Prod. No. 5907 Reorder: Call Toll -Fare 1-800-876-6827 Iok ) >,it k— :re: LEGAL AESCR P'nON All that certain land situated in the State of Ui6vda, County of Orangn, City of Saute. Any described as fnilows: PARCEL A: The Nortbcrly 100.00 feet of that portion of the land allotted to Abel Stearn, as deseri'bed in the final decrco of partition of the k ncho Santiago De Santa Ana, which vas cntnred Sapteu a 12, 1968 in beok'V' pogo 410 of h4grt nts of the ,District Count of the 17* Judicial District in and for L.os Angeles Co=ty, California, described as £nll aws: Commencing at the intenect3oo of the East liae of North Main Street, as slid East line existed on January 10, 1922, with the South lima of Section 31, Township 4 SoU, ,flange 9 West, San Beroar w Meddiarr; thence North on the Bast line of said Manx Street 150.04 Fat; thence But parallel to the South, tine of sai4 section 145.25 fee!; thence South 150.00 feet; theutc West I45.25 feet to the point ofbeginaing. EXCEFnNG therefrom the Westerly 31.00 feet thareot as.granted to the City of Sarsta. Ana by deed rsevsdcd rune 15,1970 in 'book 9316, page 748 ofDfficial Rccards of Orangc County, California. ?A1t.CEL B: The Southerly 50.00 feat of that portion of the laud allotted to Abel Staaxn, as desen'bed in the SMI donee of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1869 in boob " B" page 410 of Judgmc= of the District Court of the 174 Sudidal District in and for Los Angeles Cauuty, California, deserilaed as follows: Commencing at the iateasection of the East line of Norris Main Street, as said East line existed oa January 10, 1922, witli the South lure of Section 31, Tos wblp 4 Sou&, Range 9 Wcst, San Bernardino Meridian tbcuce North on tha East lint of --aid Msin Street 150.00 tluaoc But parallel to t}se South liDe of said aoctinn 145.25 fcct,; thence South 150.00 fact; thwce West 145.25 fee to the point of beginning. PARCEL C: That portion of Section 31, Towwbip 4 South, Range 9 West alloned. to Abel Stearc, as doodbed isx the ful decree ofpattition of the Rancho Santiago lie Santa Ana, wWcb wan catered September 12, 1868 in book'B" page 410 of 7udgaaacuts of the District Court of the 17'b Asdieiel District in. and far Los Angeles Cow:rty, California, described as Beginning at the Northwest comer of land formrrly of G. W. Vznce, rusming thence North 10.50 chains to the Southwest curncr of land formerly cf J. M. King; thence Bast 25.23 chains to t1m Southeast corner of said land of J. K King; thence South 10 chains to the township line, snd thence West along the To vw1iip line to the point of bcg4ming, and being in the Southwest quarter of Scction 31, Towasbip 4 South, Range 9 West, San Bernardino Base and Mctidiata. EXCEL MC; therefrom. the Fast 6 acres. ALSO EXCEPTING thereffom the following; Beginning at the ictmection of the East lino of Naith Main Street, witlt the South lice of Section 31, Tow=* 4 South, }?=p 9 Wes4 San 13cmardino Ease and Meridian; runzaing thence North on tlta East line of North Main Street 15.0.0Q feet; thence East parallel to the South line of said Section 31, 145.25 fees; d=c4 South 150.00 feet; thence West 14S.25 feet to the point of beginning. F:VX*ALML9TY[JhS: QZ0dx�GnccDeed-doe SUL 31 2003 15:45 310 277 0846 PAGE.04 ALSO EXCEPTING & ship of Lind along the Southerly line of said land as gmucd to County of Orange by deed recorded December•9, 1937, is book 915, page 422, records of Orange County, described as follows: 13eginniag at the Southwest corner of that cortann property drsctibcd iax deed to J. A. Engel IM Dora A. Engel recorded is book 693, page 337 of Official Records of Change County, California, and running thence from said point of beginning along the Northerly city Urnits of the City of Santa Ma, South 83' 39' 50" West, a radius of 140.30 feet;.a radial lime from said paint is said curve beats South 29° 41' 40" East; thence Northcsaterly aion&Wd cores, ti rough a central angle of 25' 59' 00", 63.63 f> d to a line tangent; thence North S V 17' 20" Fast, alotug said tsagemt line, 392.96 feet, zmm or lass, to a point in the West linc of the above-meidonexl property described iu lord to I. A. Engel and Darn Engel, Which point bears North V 30' 20" But, 33.04 ftet :&om the point of beginning; -thence South 1130' 20"-Vl''6t, 33.04 feet along said West line fa The -point ofbegiatairig. , PARCEL D: That portion of Lot 7 0£ Tract No. 721, as shown an a map recordd in book 22, page 4 of Miscollancous Maps, accords of Orange County, California, described m fallows: Bcghaning at a point in the Northerly time of said Lot 7 distant thereon South 83" 28' West 242.01 feet item the Northeast comer ofsaid Lot 7, and rimming thence Southwesterly along a curve concave Southeasterly and heaving a radius of250 feed, a radial ]me tbmugh said point of beginning btarmg South 30° 25' East, a distance of 86.39 feet to a point of reverse starve, chance Southwesterly along said curve, concave Norrhwcstcrly &ad h1ving.a radius of 203 feet; a disance of 71.05 feet, more or less, to a point winch is 104.99 feet Northeasterly, measured along said curve &out the Sortheast cormec of Lot 6 of said Tract No. 721; thence North 0145' East, parallel with the Easterly line ai: said Lot 6, 97.95 feot to a poinu in the Northerly line of said Lot 7 which is distant thereon North 88" 28' East 100.08 from the Northeast earner of said Lot 6; thence Notch 88' 28' East along said Northerly line 118.40 feet to the point of beginning. PARCEL B: Lqt 5 of Tract No. 721, as shown on. a snap recorded is hook 22, page 4 of Miscellaaneous Maps. records of Orange County, California. PARCEL E: That portion of Lots 1, 3 and 4 in Block A of tract No. 315 as shovm on a map recorded in book 14, page 49 of Misdeljaaeoui lt'iaps of said County, together with tia5rt portion of Lots 1, 2, 3, 4, 6 and 7 ofTract No. 72I as shovm on a asap recorded in book 22, page 4 of MisccU= arts Maps of said Cowry, -said portions lying Northerly of the following described lure: Begictring at at point, in Ibc Southerly line of Ix t 2, Block A of said Tact Na 315, dint mt South 89° 27' 02" East, 66.00 feet from the centerline of I&iu Street, thence North I" 05' 18" East 71.00 feet to A line diTtz t 71.00 feet Northerly from and at right ang1 cs to said South line; tirntsce pmHel with the South lie of said Lake South $9' 27' 02" East, 274.27 feet to the begiaving of a tangent curve concave Northerly having a radius of 933.00 feet; thence Easterly along said curve tfuotagh a central angle of 6° 30' 13" an art length of 105.90 feet to a point of reverse curve concave Soudxrly, having at radius of 60.00 feet; thence Easterly along said curve through a central angle of 13° 56' 16" an arc Icngth of 14.60 £set; thence tangent to said curve South 82° 00' 59" East, 33.91 feet to the beginning of a tangent curve concave Northerly, having a radius of 42.00 feet; thence Easterly along said curve through a central angla of 171 35'00" art arc length of 12.89 feet to a point of cornpotand. curve,, concave Northerly, having as radius of 946.00 feet thcoce Easacrly along said curve through a central 2aZle of V 47' 47", an arc length of 29.66 feel; thwx4 North 23° 48' 4V East, 27.78 fcc thence North 74" 26' 48" Fsws 51.73 feet; d=ce South 681, 14' 13" East; 21.12 feet to the beginr=.arag of a curve co=vc vorthetly Saving a radius of 935.00 feet; thence l=aSt=ly along said curve through a =dral angle of I ° 43' 3 5" La. arc laugth of 29.17 feet; thence t angetrtto said curve North 710 38' 39" East, 13.06 feet to the North line of Said Lot 7, Tract No. 721; thence along said North. Line North 88° 49' 12" East, 158.2.3 feet to the North line of Owew Drive as shown on reap of record of survey filed in Record of MLEQ AUIMENUM.." 102 BdoeW rant tie A&c JUL 31 2003 15!47 310 2?? 0846 PAGE.05 says, book 10, page 21, records asaid Couaty beias a point !a a carve concave Scartheasterly havioz a radius of 250.00 fern said Bros shall be extended WerWrly, to intsroect the West line of said Lot 1. EXCEPTING therefrom; that portion of said rot 1 in Block A of `Ikact No. 315 I*g Wostcaly of a tine parallel -with and 66.00 feet Past ofthe centerline of lain Street as shown ou said map of Tract No. 315. ALSO EXCEPTING there£mm that portion of said Let 1 it Block A of Tract No. 315 enclosed witbim a tr� shaped area bounded Westerly by the South 25.00 feet of said tine 66.00 ftet FAmt Gf Win Street cea#arlirte; bomded Sautherty by the Went 25.00 fed of tine lino fast above d=mIxd having a beariag and distance of South S9° 27' 02" Eas' , 274.27 fear and bouadrd Northeasterly by a straight tine connecting the Nmffi and East and points of said boun&ry lines. F:�C.EGAr.�7t,Et�t'ja! CIitd6tlCrmt t]cod.dot juL 31 2003 15:47 310 277 0646 PAGEw.06 tiuuNsrReer ._.r._._.—. m O N Cn n c > m m Zm P � n �N W N w C > N n C m K a T LAYISCN WAY . 1 . ! 1 I rr a w tAvSaKwnv �•—c� c . �•� r �.—.�.—.�.� z Q rn - N f� d� sad € r� i q 4S S i EXHIBIT 8 Page 1 of 2 n 0 z o :c z 0 z> a r _ 'O morn n `O M a Z em va cu wa H ��l ;z•i :v_3; ti. �� m Si R fn I m i j s s ;'Elsa i Q x ae 3 3j=• =. P1�`3^igm a; Y;a #,si.;xs: iri}2;►i.9; is_;;i::e,:,i #}x: € _? 75 9•-i t :its -. i.e'^ea Z e? s Page 2 o f 2 EXHIBIT C Public Art Locational Plan Public art valued at one-half of one percent (0.5%) of the project building permit valuation is required. Public art shall be comprised of a single art piece (or two or more pieces, as agreed to by the City's Planning Commission and Owner) to be placed along Main Street at one or two major entrances to the Project, with the final location to be determined as specified in paragraph 2.5 of this Agreement. The public art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and/or capture or reinforce the unique character of the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed as provided in paragraph 5.8.1 of this Agreement. Review and approvals required by the Planning Commission pursuant to sections 5.8, 5.8.1 or this Exhibit C may be delegated to a committee of same duly constituted pursuant to the Planning Commission's bylaws. 2. Art should be sited to complement features such as plaza or architectural components so that the art is an integral part of the development site. 3. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. 4. No art piece provided pursuant to the public art requirement shall include advertising of any type, including but not limited to products, services or businesses. 5. All public art provided pursuant to the public art requirement shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. 6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the project site and may not be removed without the approval of the Planning Commission. 7. Expenses Not Allowed from Art Allocation i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees. iii. Landscaping around a sculpture that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. v. Lighting elements not integral to the illumination of the art piece. vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. 8. To be eligible, the proposed work of public art shall not be: i. a mass produced object from a standard design; I a reproduction, whether produced by mechanical or other means, of an original work of art; iii. elements of building, designed by the building's architect, as opposed to a public artist commissioned for the express purpose of creating a unique work of public art; nor iv. a water feature, in whole or in part. Development Agreement No. 04-04 EXHIBIT D Phasing Plan I t E T•�q. �c�..lY{„t '� WT���1y1 ,r ,y� l;r � i S• T'. � -�rt7rf �` w6'> ram-+,• � F t itt r W' 1�. fa sr64 14ASE DNE ----�-. -- .----�ƒ-- ---- .. .. \ � | � . | ; � | : | � � | , ,[ NO ( : w!!r®,== Erg| ]' ; !�§•§§||.i-`|;§ K,\;Et ■BK,§,,..�,�§.,;■r;m§} \�. ,#,§fK«;;:§,§�,■|�r;|\,§.\|7/ G ;m• |§§§ - J �.J. J,- - ---- ---- --- - / E ) §!§ ) B 9 2 R �f xy�i t5 il� 11 n 3 M u 3��g�c��ad�9P �tl n, City Place Project Public Improvements Improvement Install a traffic signal Install a crosswalk and associated traffic signal Construct new cub, gutter and sidewalk Construct new sidewalk - Replace damaged curb, gutter and sidewalk Street light installation Repave from centerline to edge of gutter Underground all existing overhead utility lines Location Lawson and Memory Lane Memory Lane and Crescent Property frontage of Lawson Way Property frontage of Memory Lane Property frontage of Main. Street Property frontage of Lawson Way Property frontage of Lawson Way Along property frontage of Memory Lane EXHIBIT E Development Agreement No. 04-04 EXHIBIT F Residential Tower Study Area r ,.�..._ f°CLCLLs