HomeMy WebLinkAbout11A - 200 FIRST AMERICAN WAY
ORDINANCE NO. NS-2680
AN ORDINANCE OF THE CITY COUNCil OF THE CITY OF
SANTA ANA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA ANA, COASTAL RIM
PROPERTIES, INC., AND GENEVA COMMONS, llC
THE CITY COUNCil OF THE CITY OF SANTA ANA ORDAINS AS FOllOWS:
SECTION 1: The City Council hereby finds, determines and declares as follows:
A. 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 City
and owner in the development process.
B. The City enters into this Development Agreement pursuant to the
provisions of the Government Code and applicable City policies.
C. The Planning Commission has, following a duly noticed public hearing, on
November 22, 2004, recommended approval of this Development Agreement.
E. Entering into this Development Agreement would provide the City with
extraordinary and significant benefits that are of regional significance, relate to existing
deficiencies in public facilities, require the owner of Geneva Commons 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.
F. The City Council has held a noticed public hearing on this Ordinance, and
has considered all testimony presented thereto.
G. The City Council has, on April 4, 2005, approved a mitigated negative
declaration in conjunction with this Project and adopted a mitigation monitoring plan.
SECTION 2: The Development Agreement, a true and correct copy of which is
attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the
Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby
authorized and directed to cause this Development Agreement to be recorded with the
County Recorder's Office.
SECTION 3: This ordinance shall not be effective unless and until Ordinance
No. NS-2681 and Resolution No. 2005-040 become effective. If said ordinance and
resolution are for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, or otherwise do not go into effect for any reason, then this
ordinance shall be null and void and have no further force and effect.
Ordinance No. NS-2680
Page 1
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SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that anyone or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
ADOPTED this
day of
,2005
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES:
Cou ncil members
NOES:
Councilmembers
ABSTAIN:
Councilmembers
NOT PRESENT:
Councilmembers
Ordinance No. NS-2680
Page 2
11 A-2
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-2680 to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS-2680
Page 3
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RECORDING 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 Aha, California 92702
FREE RECORDING
GOVERNMENT CODE § 6103
REST A TED AND NOVA TED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
COASTAL RIM PROPERTIES, INC., A CALIFORNIA CORPORATION
and
GENEVA COMMONS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Dated: March 16, 2005
, .
EXHIBIT
11A-4
1
RESTA TED AND NOVATED DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA,
COASTAL RIM PROPERTIES, INC., A CALIFORNIA CORPORATION, AND
GENEVA COMMONS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
This RESTATED AND NOVATED 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
(referred to herein as "City") on the one hand, and COASTAL RIM PROPERTIES, INC., A
CALIFORNIA CORPORATION and GENEVA COMMONS, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY (collectively referred to herein as "Owner" or "Property
Owner") on the other hand.
1.
RECIT ALS. The Agreement is entered into with reference to the following
facts:
1.1 Purpose. (1) The purpose of this Agreement is to facilitate the
development of a small portion of the real property which was the subject of a Development
Agreement entered into on January 4, 1988 and recorded as Document 88-260709 in the Office
of the Recorder of the County of Orange (hereafter the "Original Agreement"). The Original
Agreement was subsequently amended on or about June 4,2001, by Document No.
20010429519 the Office of the Recorder of the County of Orange. The real property which was
the subject of the Original Agreement is zoned by the City as Specific Zoning District No. 43
("SD-43),
(2) A portion of the real property covered by the Original Agreement
was subsequently acquired by Owner, who has applied to the City to amend SD-43 and have
approved a new tentative map.
(3) The City and Owner agree that the changes Owner seeks in the
Original Agreement substantiate the need to replace the Original Agreement with the instant
Development Agreement, rendering the Original Agreement, and any of its amendments, null
and void as applied to Owner's Property (as the word "Property" is defined in section 2.3
herein).
(4) As more particularly set forth in section 2.4 of this Agreement,
Owner has proposed constructing at the northeast comer of MacArthur Boulevard and Imperial
Promenade an approximately 278-unit condominium project consisting of an 18-residential level
high rise project and an eight-story building, together with approximately 13,000 square feet of
ancillary retail, of which no more than 3,000 square feet may be devoted to "fast food" or "take
out" restaurants.
1.2 Code Authorization. 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 City
and Owner in the development process. City enters into the Agreement pursuant to the
provisions of the Government Code and applicable City policies. The parties acknowledge:
11A-5
(1)
the time of development.
This Agreement is intended to assure adequate public facilities at
(2) This Agreement is intended to assure development in accordance
with City's General Plan, applicable Specific Plans and Specific Development District No. 43.
(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. 43.
(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.
(5) This Agreement will allow 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 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.
1.3 Owner. Owner represents and warrants that it has a legal or equitable
interest in the real property located in 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. The Property is currently vacant.
1.4 Interest of Owner. Owner hereby represents that it has an equitable and
legal interest in the Property. Owner further hereby represents that it has approved this
Agreement and is authorized to enter into this Agreement.
1.5 Planning Commission - Council Hearings. On November 22, 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. The Planning Commission recommended to the City Council of
City that it execute this Agreement. On April 4, 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.
1.6
Council Findings. The Council finds that this Agreement is consistent
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with the General Plan, applicable Specific Planes) as well as all other applicable ordinances,
plans, policies and regulations of the City.
NS-
thereafter.
1,7 City Ordinance, On April 18, 2005, the Council adopted Ordinance No.
approving this Agreement. The ordinance becomes effective thirty (30) days
2.
DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Final Design" means the final design documents for work of public art,
which is set forth in greater detail in paragraph 5.8 of this Agreement.
2.2 "Property Owner" or "Owner" means collectively Coastal Rim
Properties, Inc., a California Corporation, and Geneva Commons, LLC, a California Limited
Liability Company, being the person, persons, or entity having a legal or equitable interest in the
Property, and includes Coastal Rim Properties, Inc.'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
Environmental Review No. 2002-215, Tentative Tract Map No. 2004-05 (County Map No. 16556),
Conditional Use Permit 2004-02, Variance No. 2004-11, Zoning Ordinance Amendment No. 2004-
05 (amending SD-43), and Site Plan Review No. 2004-06.
2.5 Public Art Plan means the conceptual Plan attached hereto as Exhibit C,
The parties recognize that the Plan does not set forth certain elements of the Public Art to be
installed in conjunction with this Project, including the location of the Public Art, and is
therefore subject to refinement prior to the time of installation, by agreement of the Owner and
the City's Executive Director of Planning and Building.
3. EXHIBITS, The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
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Exhibit
Desienrltion
Description
Referred to
in Section
A
Property Legal Description
1.2
B
Property Graphical Description (Site Plan)
1.2
C
Public Art Plan
2.5
D
Cooperative Agreement for Off-Site Improvements 5.1.1
E
Remaining Offsite Mitigation Measures
5.1.2
4.
GENERAL PROVISIONS.
4.1 Property Subject to the Agreement. Until released pursuant to the
provisions of Section 8.3 below, no property shall be released from this Agreement until
Property Owner has fully performed its obligations arising out of the Agreement.
4.2 Duration of Agreement. The term of this Agreement shall for ten (10)
years; provided, however that the Owner may request one two-year extension from the Executive
Director of the Planning and Building Agency, which request shall not be unreasonably denied.
4.3 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 4.3.1 of this Agreement, the rights of Owner under this Agreement may not
be transferred or assigned unless the written consent ofthe 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 development by them in accordance with the provisions of
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this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the
obligations of Owner and the transferee or assignee shall be joint and several.
4.3.1 Permitted Assignments. The prohibition against transfer of ownership of
the Property as defined in section 4.3 above shall not apply to, and the City hereby consents to,
the following:
a. Associations, including .limited partnerships, limited liability
companies, or joint ventures with other entities for the purpose of performing Owner's
obligations under this Agreement, provided Owner retains sole operational and managerial
control.
b.
Easements or temporary permits to facilitate development of the
Property .
c. Deeds of trust or other financing documents executed for the
purpose of securing loans to Owner made to finance the development of the Property, and
transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such
deed of trust or other, similar, financing documents and any subsequent transfer by any such
person or entity.
4.4 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.
The term "Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved and executed.
4.5 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.
4.6 Hold Harmless. Property Owner agrees to and shall hold 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 their contractors, subcontractors,
agents, employees, or other persons acting on their 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 This hold harmless Agreement
applies to all claims for damages, just compensation, restitution, judicial or equitable relief
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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. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
4.7 Binding Effect of Agreement. To the extent not otherwise provided in
Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the
Agreement inure, to the parties' successors in interest.
4.8 Relationship of the Parties. The contractual relationship between 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.
4.9 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 or other telegraphic communication in the manner provided in this Section, to the
following persons:
If to City, to:
City Manager
City of Santa Ana
20 Civic Center Plaza M~31
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6954
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza M-29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
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If to Owner, to:
Coastal Rim Properties, Inc.
Geneva Commons, LLC
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
telefacsirnile: (714) 708-0873
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, shall be those rules, regulations, and policies applicable to the Property as of the
effective date of this Agreement.
5.1.1 Cooperative Agreement for Off-Site Improvements. The Owner and
the City, together with other parties, have concurrently executed a Cooperative Agreement for
Off-Site Improvements, a true and correct copy of which is attached hereto as Exhibit D and
incorporated herein by this reference. Owner agrees to comply in all respects with its obligations
under said Agreement, and agrees and acknowledges that a material breach of said agreement
shall constitute a material breach of this Agreement.
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5.1.2 Remaining Offsite Mitigation Measures. The additional offsite
mitigation measures, beyond those set forth in the agreement referenced in section 5.1.1 of this
Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement.
All funds or costs for offsite mitigation measures required pursuant to the approvals set forth in
section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said
approvals, or (2) no later than recordation of the final subdivision map for the Project, whichever
comes first.
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 Ca1.3d 465,208 Cal.Rptr. 228, 690 P.2d 701, City retains the right
to enact police power regulations on matters not covered by section 5.1 of this Agreement,
including without limitation:
a. Regulation of the rate and amount of growth is not abrogated by the City,
in that the parties agree and acknowledge that the City hereby retains the police power to provide
for change in regulations, ordinances, policies, and plans relating to moratoria, building permit
allocations, timing, and sequencing of development and the financing and provision of adequate
public facilities at the time of development.
b. Municipal laws and regulations which do not interfere with Owner's vested
rights to develop and use the Property in accordance with section 5.1 of 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) 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.
c. In recognition of the need for City services, including but not limited to
police, fire and park, to meet the demand generated by new, cumulative residential development in
the City, District, Owner will not object to participation in a community facilities district, assessment
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district, or other similar funding mechanism, to provide funds for such services, should any such a
mechanism be established.
d. No vested rights as to any requirements in this section 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, including without
limitation the facilities set forth in the Public Art Plan, shall be subject to applicable design
standards and guidelines 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 FAA Approval. Owner shall obtain and maintain, during the term of the
agreement, any and all necessary approvals from the FAA for the Project. Should such
approvals lapse, and not be reinstated or reapproved prior to the issuance of the first building
permit, the City shall have the right to terminate the agreement.
5.4.1. Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigation easement in a form approved by the City
Attorney, which shall be recorded with the Recorder of the County of Orange. The avigation
easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the Project including but not
limited to noise, sound, vibration, fumes, fuel particles, dust, discomfort or other environmental
effects incident to aircraft operations as well as any inconvenience or annoyances caused by the
operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to
enter or penetrate into or transmit through the airspace above, on or in the vicinity of the
Property for the unobstructed use, passage or operation of all types of aircraft and the right to
create or generate all things and consequences to the Property that may be, or may be alleged to
be, incident to or resulting from the use of said Airspace and any and all related aircraft and
airport operation. The City shall be the benefited party in the avigation easement, but said
easement shall be assignable by the City to a third party, including but not limited to John
Wayne Airport (SNA), without consent of Owner.
5.4.2. Limit on Fast Food and Take Out Restaurants. At no time shall the
Owner permit more than 3,000 square feet of the retail space in the Project to be devoted to "fast
food" and "take out" restaurants. For purposes of this Agreement, a restaurant shall not be
deemed to be a "fast food" or "take out" restaurant if it provide sit-down dining areas and
exclusive table service for ordering and delivering meals and beverages, and take out service
ancillary to such services.
5.5 Future Discretionary Approvals. This Agreement shall not prevent the
City, when considering requests for discretionary approvals not covered by Section 5.1 of this
Agreement subsequent to the effective date of this Agreement, from applying new rules,
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regulations, and policies which are applicable to the Property, including but not limited to,
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 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 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.
5.6 Processing Fees. All fees and charges intended to cover City 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 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 set forth in this Section, the Owner
has been legally vested under paragraph 5.1 with regard to the permitted uses ofland, density,
and intensity of use, Owner shall include within the Project at a prime location visible to the
public, a single or grouped permanent work of public art (the "Public Art"). The Public Art
shall conform in all respects to Exhibit C of this Agreement.
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Facilities specified in section 5.8.1 below must be designed and/or constructed
prior to the triggering event. In the event that Owner fails to meet either of the triggering events
set forth in section 5.8.1., below, Owner shall pay the City an amount equivalent to one-half of
one percent (0.5%) of the estimated value of its Project, as conclusively specified by the
Executive Director of the City's Planning and Building Agency, to be used by the City to acquire
other public art for other locations within the City, in which case, Owner will not be considered
in default under this Agreement.
5.8,1
Work of Public Art.
Items to Be Complete
1. Submit Final Design of Public Art.
Final design must conform to Public Art
Plan.
Triggering Event (E g J New I Jse or New Area)
Prior to issuance of first Building Permit or five
(5) years from the effective date of this
Agreement, whichever comes first.
2. Install Public Art.
Prior to City's issuance of the first Certificate of
Occupancy for any building or structure, or the
expiration of the tenn 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 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 as a condition of issuance of each building permit. This fee shall
be used by the City for planning (including but not limited to preparation of one or more
elements of its general plan or for zoning amendments), conceptual design, final design, bid
preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill,
and/or construction of new or substantially rehabilitated existing affordable housing in the City.
Alternatively, Owner may at any time cease making such payments if it enters into an agreement
with the Community Redevelopment Agency of the City of Santa Ana to either (i) newly
construct or rehabilitate and sell or lease, with affordability covenants as required by State law,
42 inclusionary housing units (that being 15% of the housing units proposed for the Project as
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provided by Health & Safety Code section 33413(b)(2)(A)), and/or (b) provide for up to sixty
percent (60%) ofthese indusionary units to moderate income residents at its Project, consistent
with Health & Safety Code section 33413(b)(2).
5.8.3 No Redevelopment Subsidy. The Owner shall not be entitled to request
or accept any agreement with the Santa Ana Community Redevelopment Agency for economic,
debt service payments, or other assistance for the development of the Project. Failure to comply
with this provision shall be deemed in and of itself to constitute a failure to in good faith comply
with terms or conditions of this Agreement pursuant to the terms of Government Code section
65865.1.
5.8.4. In-Lieu Park Development Fee. The Owner shall pay an in-lieu park
development fee amount equivalent to the Park Dedication requirement referenced in the site
plan review letter for Site Plan Review No. 2004-06. The fee shall be assessed 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 said City's site plan review
letter; provided, however that the fee may be increased yearly beginning twelve months
following the effective date of this agreement, by the average rate of increase in land costs in the
City of Santa Ana, as that increase is established by the "Construction Cost Index-Los Angeles,"
published by Engineering News-Record, or substitute index chosen by the Executive Director of
Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance
of each building permit. The City shall use said fees for new parkland, capital improvements at
existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of
amount of the fee), and seventy five percent (75%) of said fees shall be utilized by the City in the
Quadrant ofthe City (as set forth in the City's Park A&D Fee program) in which the Project is
located. Ifnot used or appropriated this fee shall be returned to Developer, consistent with the
provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act,
Government Code § 66000 et seq.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC&R's) must be provided and approved by the Planning and Building Agency's
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 unit, except that for three-bedroom
units, there shall be no more than five residents per unit.
(2) To the extent permitted by law, all residential and live-work units
shall remain owner occupied and shall not allow rental of the entire unit.
(3) No home occupancy shall be permitted in a unit, except in
accordance with section 41-192 et seq. ofthe Santa Ana Municipal Code.
12
11 A-16
(4) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC&R's in the event of
damage.
(5) Disclosure and release: 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., MacArthur Place, Griffin Towers, 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)
Terms and Content:
1.
CC&R's are to be in effect in perpetuity.
ii. Any proposed modifications to the CC&R's will reqUIre
approval by the Agency's Executive Director.
111. CC&R's shall provide a significant financial penalty (i,e" the
maximum permitted by law) that shall be imposed by the Home
Owner's Association to any member who violates these provisions
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 Plan.
5.10 Moratoria. Moratoria enacted by the City for the public health, safety,
and welfare, which are imposed on the Property or Project, shall toll the time periods set forth in
this Agreement.
5.11 City to Receive Contract Documents. Owner shall furnish City, upon
written request, copies of contracts and supporting documents relating to the work of public art.
5.13 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.
5.14 Compliance With Governmental Requirements. Owner shall carry out
the design, construction, and operation of the Project in substantial conformity with all
13
11 A-17
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. 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 shaIl 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 annual review, City shaIl, upon written request by Owner, issue a Review Letter
to Owner (the "Letter") stating that based upon information known or made known to the City
Council, the City Planning Commission and/or the City Planning 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 Events of Default. Property Owner is in default under this Agreement
upon the happening of one or more of the following events or conditions:
(I) If a warranty, representation, or statement made or furnished by
Property Owner to the City in conjunction with the Project is false or proves to have been false
in any material respect when it was made;
(2) A finding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 that upon the
14
11 A-18
basis of substantial evidence the Property Owner has not complied in good faith with one or
more of the terms or conditions of this Agreement;
(3)
Failure to comply with Governmental Requirements;
(4) Any other event, condition, act, or omission of Owner, or of its
officers, agents, employees, consultants, special counsel, or representatives, which materially
interferes with the intent and objectives of this Agreement.
7.2 Procedure upon Default.
(1) Upon the occurrence of default, City shall give Property Owner
(the "defaulting party") thirty (30) days written notice specifying the nature of the alleged
default and, when appropriate, the manner in which said default may be satisfactorily cured.
After proper notice and expiration of said thirty (30) day cure period without cure, City may
terminate or amend this Agreement in accordance with the procedure adopted by the City as to
all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be
cured within said thirty (30) day cure period, City may terminate or amend this Agreement in
accordance with the procedure adopted by the City should at any time Owner fail to diligently
proceed in curing the default. Failure or delay in giving notice of default shall not constitute a
waiver of any default, nor shall it change the time of default.
(2) 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.
(3)
Non-performance shall not be excused because of a failure of a
third person.
(4) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Property Owner, shall be sufficient to terminate this
Agreement and a hearing on the matter shall not be required.
(5) 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.
(6) 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 City upon lawful termination of this Agreement.
15
11 A-19
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
security device securing financing with respect to the Property or its improvement.
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 shall, upon written request to City, be entitled to receive from City
written notification of any default by Owner of the performance of Owner's obligations under the
Agreement which has not been cured within thirty (30) days following the date of default.
8.3 Releases. 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, City may 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.
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 ofthe 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. All waivers of the provision of this Agreement
must be in writing and signed by the appropriate authorities of City or of Owner. All
amendments to this Agreement must be in writing signed by the appropriate authorities of 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
16
11 A-20
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 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) 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 I ofthis
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
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
parties 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.
17
11A-21
9.10 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.
18
11 A-22
IN WITNESS W~7nREOF, this Agreement has been executed by the City of
Santa Ana and by Property Owner.
GV 111
Dated thisaL day of -+\ iJA ~ , 2002.
THE CITY OF SANTA ANA
By
DA VID N. REAM
City Manager
Approved as to Form:
By
JOSEPH W. FLETCHER
City Attorney
COASTAL RIM PROPERTIES, INC.,
A California Corporation
Franco Mola
Its Chief Executive Officer
GENEVA COMMONS, LLC,
A California Limited Liability Company
~:ty)
19
11 A-23
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF ORANGE
On this day of , 200_, before me,
, a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city
that executed the within instrument, known to me to be the person who executed the within
instrument on behalf of the municipal corporation therein named, and acknowledged to me that
such municipal corporation executed the within instrument pursuant to its bylaws or a resolution
of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF ORANGE
~ On this 2 ':Jrd. day of U (JJ eh , 2005, before me,
~, a Notary Public in and for said state, personally appeared
~r:rO,t')~t") ~CL , personally known to me (or proved to me on the basis
of sat~sfactory evidence) to be the~;~ ærL11(t' oÇÇ{.:Q'f (lQl}std eit'(\ Pí¥-(~II~; the
DY'J (t..L( that executed the within instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board.
WITNESS my hand and official seal.
XiÞ' JESSICA S. MÂRmÎl .~
- Comm. # 1440974
( ).. NOTARY PUBLIC. CALIFORNIA ~
Orange County ""
My Comm. Expires Sep.. 23, 2007
t-2.rVÎ~
TARY PUBLIC
20
11 A-24
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF ORANGE
On this day of , 200_, before me,
, a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city
that executed the within instrument, known to me to be the person who executed the within
instrument on behalf of the municipal corporation therein named, and acknowledged to me that
such municipal corporation executed the within instrument pursuant to its bylaws or a resolution
of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA
)
) ss,
)
COUNTY OF ORANGE
n this ..)\ t;f- day of ~ , 200S , before me,
~ a Notary Public in and for said state, personally appeared
. j' ¡z,... , personally known to me (or proved to me on the basis
of sati~factory evidence) to be the \\At~~ ~ tAt4 of ~ ~OI1NU1M5 Ü~ the
~ ~D.A~ that executed the wIthin instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board.
WITNESS my hand and official seal.
i .-. ..-. ..-. ..-. ..-. .. ~ ~ ...... "- -;:;
MONIQUE JUTEAU
~e Commission # 1337679 t
~. Notary Public - CaUfomia ~
2 ~
~ ",' Orange County f
My Comm. Expires Jan 5, 2006.
,....................---II(t".--'-""......~--.....
~p~
20
11 A-25
EXHIBIT" A"
LEGAL DESCRIPTION OF GENEVA COMMONS PROPERTY
REAL PROPERTY IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
LOT 1 OF LOT LINE ADJUSTMENT NO. 98-001 IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 9, 1998, AS
INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
11 A-26
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INTERNATIONAL
10.04.04
21-173
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EXHIBIT C
Public Art Plan
1. Public art valued at one-half of one percent (0.5%) of the total Project building permit
valuation is required. Public art shall be comprised of a single art piece or grouped art pieces
to be placed at a 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.
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
1.
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.
24
11 A-28
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.
25
11 A-29
COOPERATIVE AGREEMENT FOR
OFF-SITE IMPROVEMENTS
THIS Agreement is entered into this day of ,2005, by and between
the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INe., a California, non-profit public
benefit and federaI501(c)(3) corporation ("Sandpointe"), the NEXUS DEVELOPMENT
CORPORATION/CENTRAL DIVISION, INe. a California corporation and The Grand Plan 2,
LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"),
COASTAL RIM PROPERTIES, INe., a California corporation ("Geneva Commons"), the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body
corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal
corporation duly organized and existing under the Constitution and laws of the State of California
(the "City").
WITNESSETH
A. Nexus has proposed constructing at Hutton Center a five level residential
condominium project, two 23-residentiallevel condominium high-rise and one 24-residentiallevel
condominium (for a total not to exceed 835 condominium units), together with ancillary retail not
to exceed 14,000 square feet (the "Nexus Project").
B. Geneva Commons has proposed constructing at the northeast corner of MacArthur
Boulevard and Imperial Promenade an approximately 278-unit condominium project consisting of
an 18-residentiallevel high rise project and an eight-story building, together with ancillary retail
(the "Geneva Commons Project").
e. Sandpointe is a non-profit corporation that serves as a conduit between the
Sandpointe Neighborhood ("Neighborhood") and outside community and political interests.
Sandpointe Neighborhood is a residential neighborhood of single family and some multi-family
homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of
approximately 800 residences. Sandpointe does not have the authority to bind any individual
resident of the Sandpointe Neighborhood.
D. The Agency is a community redevelopment agency, as that tenn is defined in
California Health & Safety Code § 33100. In 1982, the Agency created the South Main
Redevelopment Project Area ("Project Area"), and Nexus and Geneva Commons are located within
the Proj ect Area.
E. Sandpointe has identified certain physical improvements needed in the area of the
Neighborhood that are necessitated by or would in some way offset the impact of the two
development projects. Nexus and Geneva Commons desire to contribute towards the cost and/or
construction of those improvements to the Sandpointe neighborhood in addition to and to
EXHIBIT D
1
11 A-30
supplement the mitigation measures and conditions of approval imposed by the City of their
respective developments. Those improvements are set forth in Exhibit A, attached hereto and made
a part hereofby this reference ("Improvements").
F. The Agency is willing to assist in the funding of the improvements but only from a
portion ofthe tax increment actually generated by the Nexus and Geneva Commons Projects and to
fund specified improvements that would reduce blight and benefit the Project Area.
G. The City's participation in this Agreement is limited to coordination of funding
and/or construction of certain, herein specified publicly owned improvements.
H. Nexus has agreed to construct some of the improvements, and pay for the
construction of others, as more fully set forth below ("Nexus Improvements").
I.
Geneva Commons has agreed to pay for a portion ofthe Nexus Improvements.
NOW, THEREFORE, the parties hereto do mutually agree as follows:
1.
SCOPE OF WORK
A. Nexus shall construct and/or fund the improvements identified as "Nexus
Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit B to this
Agreement, attached hereto and incorporated herein by this reference. Nexus shall be entitled to
full use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements.
B. In consideration for Nexus' agreement to construct and/or fund the Nexus
Improvement, Geneva Commons agrees to contribute a sum equal to its pro-rata share of residential
units between itself and Nexus (which is currently twenty-five percent (25%) pursuant to those
numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus
Improvements, towards the cost thereof payable at the time called for below. Notwithstanding the
foregoing, if Nexus has not executed this Agreement prior to the date this Agreement becomes
binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day
upon which this Agreement has been executed by Geneva Commons, the City, the Agency and
Sandpointe), then Geneva Commons pro-rata share contribution to the Nexus Escrow shall be
conclusively fixed at twenty-five (25%) regardless of the actual number of residential units
approved for it and Nexus.
C. If the entire Nexus and Geneva Commons Projects are constructed, Agency shall
cause the construction ofthe improvements identified as "Publicly-Owned Improvements" in
Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto
and incorporated herein by this reference. The parties acknowledge and agree that the total cost of
the publicly owned improvements, including studies, design and overhead, shall not exceed Five
Million Dollars ($5,000,000.00).
EXHIBIT D
2
11A-31
2.
COMPENSATION AND METHOD OF PAYMENT
A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow
account at First American Title Insurance Company, 2 First American Way, Santa Ana, California,
or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for
deposit of funds to be used to pay for the Nexus Improvements (refeITed to herein as the ''Nexus
Escrow").
B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow
Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of
this Agreement.
C. Prior to the deadline specified in paragraph 2.D. ofthis Agreement, Nexus and
Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the
Nexus Improvements. If, at any time, either Geneva Commons or Nexus detennines that such
agreement is not possible, then the objecting party shall submit its dispute in writing, together with
any evidence upon which it relies to the Executive Director ofthe City's Public Works Agency and
the other party. Within fifteen (15) days of its receipt of said notice, the non-objecting party shall
then have fifteen (15) days to submit any response it has to the City and the objecting party. The
Executive Director ofthe City's Public Works Agency or designee shall then, within thirty (30)
days of receipt of the response, if any, or the expiration of said deadline, infonn both Geneva
Commons and Nexus in writing of the final detennination of the estimated total cost, which all
parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter,
Nexus and Geneva Commons shall deposit their respective shares ofthe estimated cost ofthe
Nexus Improvements as set forth in paragraph 1.B. of this Agreement, less $1,000.00, into the
Nexus Escrow no later than the date specified in paragraph 2.D. of this Agreement.
D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building
pennit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance
of entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been
filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus
Escrow no later than (i) the date the first building pennit is issued by the City for the Geneva
Commons Project, or (ii) a date ninety (90) days after the issuance of entitlements to Geneva
Commons, provided no litigation or referendum petition challenging Geneva Commons has been
filed and served on the City, whichever comes later.
EXHIBIT D
1
11A-32
E. The Agency shall pay the City its cost incurred by the City for the Publicly-Owned
Improvements set forth in Exhibit A to this Agreement; provided, however that total commitment
by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE
MILLION DOLLARS ($5,000,000.00). If the items set forth as Publicly-Owned Improvements in
Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and
absolute discretion, limit or eliminate Publicly-Owned Improvements set forth in Exhibit A;
provided, however, that the Agency shall proceed with the Publicly-Owned Improvements in the
order as set forth in said Exhibit.
3.
NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS
A. Nexus shall prepare and submit construction drawings and related documents for
items listed on Exhibit A to the City for review (including, but not limited to, architectural review)
and written approval as and at the times established in the Schedule ofPerfonnance set forth in
Exhibit B to this Agreement. The construction drawings and related documents shall be submitted
in two stages: (i) the Preliminary Site Plans and (ii) Final Site Plans.
B. During the preparation of all drawings and plans, City staff and Nexus shall hold
regular progress meetings to coordinate the preparation of, submission to, and review of
construction plans and related documents by the City. The City staff and Nexus shall communicate
and consult infonnally as ftequently as is necessary to insure that the fonnal submittal of any
documents to the City can receive prompt and speedy consideration.
C. Any revision or correction of plans required by the City shall be deemed approved
by the Agency, Geneva Commons and Sandpointe.
D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any
ownership interest in, or any right to use, the Preliminary Site Plans or the Final Site Plans
submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the
right to use any such plans or drawings to any person or entity.
4.
APPROVAL OF NEXUS PLANS, DRAWINGS AND RELATED DOCUMENTS
A. The City shall have the right of reasonable review (including, but not limited to,
architectural review) of all plans, drawings and related documents including any proposed changes
therein. The City shall approve or disapprove such plans, drawings, and related (and any proposed
changes therein) within the times established in the Schedule ofPerfonnance set forth in Exhibit B
hereto. Such approval shall not be unreasonably withheld.
B. Any disapproval shall state in writing the reasons for disapproval. The City shall
have the right to disapprove, in its reasonable discretion, any ofthe Final Plans if the Final Plans do
not confonn to the Approved Plans, the approved Preliminary Plans or do not confonn to Exhibit A
to this Agreement, or are incomplete.
EXHIBIT D
4
11 A-33
C. The City shall state in writing the reasons for disapproval ofthe Final Plans within
sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60)
day period shall not be grounds for resubmittal.
D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the
plans, drawings or related documents in a manner that reasonably satisfies the reasons for
disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of
the notice of disapproval. Plans, drawings, and related documents receiving City approval shall not
be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related
documents comply with all Governmental Requirements.
5.
COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS
IMPROVEMENTS
a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements in
confonnance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the
cost ofthe Nexus Improvements, constructed in confonnance with Exhibit A to this Agreement and
the approved Final Plans, exceeds the funds in the Nexus Escrow, Nexus and Geneva Commons
shall be solely responsible for said costs, with each responsible for any additional cost to the same
percentage as is set forth in paragraph 1.B. ofthis Agreement. Nexus shall complete or fund, as the
case may be, the construction ofthe improvements in confonnance with the schedule set forth in
Exhibit B to this Agreement.
b. The parties acknowledge and agree that the Block Wall identified as Item No. I on
Exhibit A will be constructed on the properties of dozens of individual homeowners in the
Sandpointe neighborhood, none of whom are parties to this Agreement. The parties agree to use
their best efforts to obtain pennission of each of these individual property owners to construct this
Block Wall and to pennit the City to pennanently maintain the climbing ivy along the exterior of
the wall. However, it is the parties understanding and intent that should any property owner refuse
to agree to pennit the construction and/or exterior ivy maintenance ("hold outs"), that the Block
Wall will be constructed regardless of any hold-outs, and that Nexus shall construct the Block Wall
in such fashion as to join the Block Wall to existing wall segments owned by hold outs and
minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe
and its officers, directors, employees and agents harmless from any claim by any and all property
owners including such hold outs arising out of the construction ofthe Block Wall in which
Sandpointe, or its officers, directors, employees or agents are named. Nexus shall be pennitted to
select counsel to defend Sandpointe at the expense of Nexus. In the event of a potential conflict of
interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent
counsel. All fees and costs of independent counsel selected by Sandpointe for defense of any claim
arising out of or relating to any claims described herein shall be paid by Nexus on behalf of
Sandpointe.
EXHIBIT D
'i
11 A-34
6.
AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF
PUBLICLY OWNED IMPROVEMENTS
Upon the issuance of a certificate of occupancy pursuant to the California Building Code
for (i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project,
and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a
notice to proceed to design and construct the Publicly-Owned Improvements as set forth in Exhibit
A. If only a portion ofthe residential units have been constructed within five (5) years ofthe date
of the Commencement Date, then the Agency shall only give the City a notice to proceed with a
partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for
the Publicly-Owned improvements, and the City's obligation to complete these Publicly-Owned
Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from
the project-specific tax increment generated by the Nexus Project; provided, however, that City and
Agency shall construct item no. l.a. on the list of Publicly-Owned Improvements in Exhibit A to
this Agreement regardless ofthe project-specific tax increment received by the Agency.
7.
COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY
OWNED IMPROVEMENTS
a. City shall construct the Publicly-Owned Improvements in confonnance with the
schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however,
that the Agency and City shall have no obligation once the cost of the Publicly-Owned
Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly-Owned
Improvements, including all design, administrative and construction costs exceed $5,000,000.00,
then the City shall construct only that portion of the Publicly Owned Improvements as specified in
Exhibit C in the exercise of the Agency's sole and absolute discretion.
b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B,
additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of
the block wall, referenced in item no. I on Exhibit A hereto, but the City's obligation to maintain
the climbing vines shall only apply to those property owners who execute a façade easement with
the City in a fonn approved by the City Attorney pennitting the City to maintain said climbing
vines and indemnifYing the City from any liability caused by said climbing vines and/or irrigation.
Sandpointe shall be responsible for obtaining signatures from these individual homeowners.
8.
LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY
INJURY AND PROPERTY DAMAGE INSURANCE
A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall
indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents
and employees harmless from and against all damages to property or injuries to or death of any
person or persons, including employees or agents of Agency or City, and shall defend, indemnify
EXHIBIT D
Ó
11 A-35
and save Agency, City and Sandpointe, and their officers, agents, and employees, from any and all
claims, demands, suits, actions, or proceedings of any kind or nature, including, but not by way of
limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting from
the negligent or wrongful acts or omissions of Nexus or Geneva Commons or their respective
employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold harmless
Agency, City and their respective officers, directors, agents and employees from and against all
damages to property or injuries to or death of any person or persons, in any way resulting from the
negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective
employees, agents or subcontractors. This Agreement shall not be interpreted or construed to
obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or
to answer in any way for the Agency the City or their respective officers, directors, agents or
employees for such claims.
B. Prior to the commencement of construction, Nexus or any other party working
within the real property ofthe City or Agency, shall obtain at its sole cost and file with the City and
Agency, and maintain for the period covered by this Agreement, a policy or policies of liability
insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the
City and Sandpointe, their officers, directors, agents, and employees, as insured or additional
insured, which provides coverage not less than that provided in the form of a comprehensive
general liability insurance policy against liability for any and all claims and suits for damages or
injuries to persons or property resulting from or arising out of operations of Nexus, its officers,
directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both
bodily injury and property damage in not less than One Million Dollars ($1,000,000) combined
single limit, or its equivalent. Said policy or policies shall also contain a provision that no
termination, cancellation, or change of coverage of insured shall be effective until after thirty (30)
days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and
City prompt and timely notice of claim made or suit instituted arising out of Nexus operations
hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and
amounts of insurance, which in its own judgment may be necessary for its proper protection in the
prosecution of the work. All insurance policies shall be written by responsible and solvent
insurance companies and shall include an additional insured endorsement in substantially the form
of Exhibit D, attached hereto and incorporated herein by this reference
9.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
Nexus shall carry out the design, construction, and operation of the Nexus Improvements 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 or Nexus, 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
EXHIBIT D
7
11 A-36
and electrical codes, and all other provisions of the City and its Municipal Code, 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").
10.
DEFAULTS AND REMEDIES
If any party defaults in performance of its obligations, covenants or agreements hereunder,
the defaulting party shall be entitled to cure the default in accordance with this section. The injured
party shall give written notice of default to the party in default, specifying the default complained of
by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor
shall it change the time of default. The defaulting party must, within thirty (30) days, following
service of said notice, commence to cure, correct or remedy such failure or delay and shall complete
such cure, correction, or remedy with reasonable diligence.
11.
INSTITUTION OF LEGAL ACTIONS
Subject to the provisions of Section 13 hereof, in addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any default to recover damages for any
default, or to obtain any other remedy consistent with the purpose ofthis Agreement.
12.
APPLICABLE LAW
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed and construed in accordance with the laws of the State of California.
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. All parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason ofthis Agreement.
13.
RIGHTS AND REMEDIES ARE CUMULATIVE
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the parties are cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
EXHIBIT D
R
11A-37
14.
DAMAGES
In the event that the Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva
Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva
Commons in the performance ofthis Agreement and shall not extend to compensation for loss of
future income, profits or assets.
15.
NOTICES, DEMAND AND COMMUNICATIONS
Formal notices, demands and communications between the parties shall be sufficiently given if
dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal
offices of the Agency and the Developer as designated below. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may from
time to time designate by mail as provided in this section.
City:
City of Santa Ana
Planning and Building Agency
20 Civic Center Plaza, M-20
Santa Ana, CA 92702
Attn: Steve Harding, Executive Director
Phone: (714) 667-2700
Fax: (714) 973-1461
with copy to:
City Attorney
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Agency:
Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M-25
Santa Ana, CA 92702
Attn: Patricia C. Whitaker, Executive Director
Phone: (714) 647-5360
Fax: (714) 647-6549
with copy to:
Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza, M-29
Santa Ana, California 92702
EXHIBIT D
9
11 A-38
Sandpointe:
Sandpointe Neighborhood Association, Inc.
P.O. Box 27122
Santa Ana, California 92799
Attention: Bob Black
Nexus:
Nexus Development Corporation/Central Division, Inc.
The Grand Plan 2
1 MacArthur Place, Suite 300
Santa Ana, California 92707
Attention: Cory W. Alder
Geneva Commons:
Coastal Rim Properties, Inc.
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
A party may change its address by giving notice in writing to the other parties. 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 facsimile, 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 ftames, weekends, federal, state, County or City holidays hall be excluded.
EXHIBIT D
10
11A-39
16.
EFFECTIVE DATE AND TERM OF AGREEMENT
This Agreement shall take effect from and after the date of adoption and approval by the
City and the Agency pursuant to official action ofthe governing bodies thereof and shall be
effective until completion and acceptance ofthe Nexus Improvements and Publicly-Owned
Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva
Commons shall take over Nexus' obligations to construct a portion ofthe Nexus Improvements
under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe,
and using the order ofthe Nexus Improvements specified in Exhibit A as a guide, designate which
ofthe Nexus Improvements shall be constructed using Geneva Commons twenty-five percent
(25%) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and
acknowledge that all references herein to Nexus shall be deemed to be references to Geneva
Commons. If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and
Sandpointe shall meet and confer in good faith, and using the order of the Nexus Improvements
specified in Exhibit A as a guide, designate which ofthe Nexus Improvements shall be constructed
using Nexus seventy-five percent (75%) share ofthe estimated cost of the total Nexus
Improvements.
17.
CO~ENCEMENTDATE
For purposes of this Agreement the term "Commencement Date" shall refer to the period
after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the
issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The
Commencement Date shall be tolled should a valid referendum petition be presented challenging
either project, or timely litigation be filed and served challenging any of the entitlements, including
approval pursuant to the California Environmental Quality Act.
18.
INTEGRATION
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto,
and supersedes all negotiations or previous agreement between the parties with respect to all or
any the matters addressed herein. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate authorities of the parties, and all amendments hereto must
be in writing and signed by the appropriate authorities of the parties.
19.
ASSIGNMENT
Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in
whole, to any person, entity (public or private), partnership, joint venture, firm or corporation
who is the owner of the real property referenced in the Recital hereto at any time during the term
of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this
Agreement may not be transferred or assigned unless the written consent of the City Council is
first obtained and any transfer or assignment of the rights under this Agreement shall include in
EXHIBIT D
11
11A-40
the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva
Commons 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 City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons 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 Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
BY~
Name &gðt-A c.I<
Its CI{4/~¡J '-
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, INC.
By
Name
Its
12
11A-41
the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva
Commons 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 City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons 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 Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
By
Name
Its
NEXUS DEVELOPMENT CORPORA TIONI
CENTRAL DIVISION, INe.
By
Name
Its
k GLO J..., r--
12
11A-42
ATTEST:
Patricia E. Healy
Clerk of the Council
THE GRAND PLAN 2, LLC
By
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INC.
By
Name
Its
4~
THE CITY OF SANTA ANA
By
11A-43
David N. Ream
City Manager
n
ATTEST:
Patricia E. Healy
Secretary of Agency
APPROVED AS TO FORM:
Joseph W. Fletcher
Agency General Counsel
COMMUNITY DEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA
By
Patricia C. Whitaker
Executive Director
EXHIBIT D
14
11A-44
EXHIBIT A
OFF-SITE IMPROVEMENTS
Nexus Improvements
1.
Block Wall
a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy
b. North side of Sunflower between Main & alley adjacent to four plexes, excluding
sections of wall at comer of Main & Sunflower at rear of commercial building
c. Plaster and paint with one color selected by Association
d. $3,000 per house payment for repair/replacement oflandscaping associated with
wall improvements upon execution of Nexus right-of-entry for construction and
exterior-wall maintenance easement. This payment shall be made by Nexus at the
time the individual property owner executes the construction easement in favor of
Nexus and permanent maintenance easement (for the climbing vines) in favor of
the City. For any "hold outs" (as defined in paragraph 6.b. ofthis Agreement,
Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out.
e. Remove and replace 16 sections of white concrete block wall in immediate area of
MacArthur Boulevard and Flower Street, and paint with one color selected by
Association.
f. Remove and replace 4 sections of white concrete block wall along West Alton
Avenue and paint with one color selected by Association.
g. Nexus shall install climbing vines, species identified by the City, along the outer
edge of the wall, install irrigation to feed said climbing vines which shall be
connected and metered by Nexus at the nearest City water supply, and shall
reconstruct the sidewalk to the City's specifications after installation ofthe
irrigation lines and block wall.
h. Wall replacement specifications shall be established pursuant to paragraph 4 of
this Agreement.
1. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety
(90) day plant establishment phase following item no. 1.g.
2.
Window Replacements
a. Nexus shall provide $3,500 construction allowance per house for sound proof
window replacements for up to 49 residential units located along Main Street and
Sunflower Avenue behind the existing concrete wall to be replaced. The 49
residential units are identified in Exhibit A-I to this Agreement.
b. Nexus shall assist Sandpointe in obtaining/preparing necessary construction bids,
documents and permits.
c. Allowance will be paid by Nexus to Sandpointe for any applicable home upon
receipt of bona fide construction or material invoices.
d. Allowance shall expire 12 months following the completion of the concrete wall
EXHIBIT D
1:'5
11A-45
3.
replacement improvements.
e. Window specifications shall be established pursuant to paragraph 4 of this
Agreement.
Taft Elementary Loading Zone
a. Nexus shall construct all improvements necessary to effectuate Definitive
Easement Agreement between Santa Ana Unified School District, Nexus and
South Coast Church.
b. Improvements to loading zone shall include driveway approaches, traffic lanes on
site, striping, church building renovations, portable classroom relocations,
computer lab on school and church properties, etc. as provided for in plans
included as part of Definitive Easement Agreement.
4.
Pay City $200,000 for City to implement a Neighborhood Traffic Management
Plan ("NTMP") to mitigate changes in traffic patterns or increased cut through
traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe
Neighborhood. NTMP costs shall include traffic studies, staff time to process
neighborhood traffic plan, and the construction of appropriate traffic calming
devices, including but not limited to semi-diverters, diagonal diverters, and street
closures. The implementation of the NTMP shall be pursuant to procedures
adopted by the City Council.
5.
Nexus shall pay the City the full cost (see Exhibit B) for the installation of a
Traffic Signal at the intersection of MacArthur Boulevard and Birch Street.
Publicly-Owned Improvements
1
Utility Undergrounding
a. Main Street - MacArthur to Sunflower
b. MacArthur - Main to Plower
c. Sunflower - Main to Plower (north side of street)
EXHIBIT D
ló
11A-46
SinE11! Family Homes:
. I. 101 W. Murphy
2. 3701 S. Alder
3. 3705 S. Alder
4. 3709 S. Alder
5. 3713 S. Alder
6. 3717 S. Alder
7. 3721 S. Alder
8. 3m S. Alder
9. 3729 S. Alder
10. 3801 S. Alder
11. 3805 S. Alder
12. 3809 S. Alder
13. 3813 S. Alder
14. 3817 S. Alrkr
IS. 3821 S. Alder
16. 3825 S. Alder
17. 3829 S. Alder
18. 3901 S. Alder
19. 3905 S. Alder
20. 3909 S. Alder
21. 102 W. SteveN!
22. 106 W. Stevens
23. 110 W. SteVena
24. 114 W. SteVens
25. 118 W. Steven:¡
26. 122 W. Stevens
27. 2()2 W. Stevens
28. 206 W. SteVens
29. 210 W. Stevens
30. 214 W. Ste'Yel)S
3 . 3926 S. Timber
32. 302 W. SleVens
33. 306 W. StcvaIs
34. 310 W. Stevens
35. 314 W. Sævens
36. 318 S. Srevens
:n. 3922 S. Bireh
I"OQ.-pIe:Xt....
38. 3925 S. Ross
39. 401 W. Sunflower
40. 4()5 W. Sunflower
41. 409 W. Sunflower
42. 501 W. Sunflower
43. 505 W. Sunflower
44. S09 W. Sunflower
45. 513 W. Sunflower
Main AttnadÌGn Condominium.
46. 3620 ^ S. Main
47.3632 AS. Mo1n
48. 3632 B S. Main
49.3632 C S. Main
EXHIBIT A-I
List of 49 Residential Units
Lisl ofEligÎblc Home!! for
Window Replacements
Along Main lnd Sunflower
(side!; I() Main)
(backs to Main)
(backs to Main)
(bacia to Mllin)
(backs to Main)
(bades lo Main)
(back.c¡ to Main)
(bac:lcJ m Main)
(backs to Main)
(badc..c¡ to Main)
(back... to Main
(backs to Main)
~cksto Mail'\)
(bades ta Main)
(backs to Main)
(baclcs to Aldo-)
(backs to Main)
(becks to Main)
(backs to Main)
(badcs to Main)
(backs to Main a\1d MiniMarket)
(bocks to Ml1in and Mini Market)
(bacia to Main and Mini Market)
(backs to Sunflower and Mini Markel)
(backs to Sunflower)
(Ncks to Sunflower)
(backs to Sunflower)
(badG to Sunflower)
(backs to Sunflower)
(bJIcIG to Sunflower)
(Aides to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(badc.c¡ to Sunflower)
(bacJc, to Sunflower)
{b¡\c:ks [0 Sunflower)
(baCks to Sunflower)
(lIidcs to Sunflower)
(fronts Sunnower)
(/'roots Sunflower)
(fTonts Sunflower)
(fronts Sunflower)
(fronl~ Sunflower)
(&ant.. Sunflower)
(fronts Sunflower)
(sides to Main)
(fmnts Main)
(fronts Main)
(lTonts Ml1in)
17
11A-47
,
1.
2.
3.
EXHIBIT B
SCHEDULE OF NEXUS IMPROVEMENTS
Construction of Item No.1 to Exhibit A shall conform to the following schedule:
a.
c.
Preliminary Site Plans - Due within thirty (30) days of the Commencement Date.
Final Plans - Due within sixty (60) days of City approval of Preliminary Site
Plans, together with proposed Right-Of-Entry and Maintenance Easement for
review of City and Sandpointe.
Building Permits, Construction Right-Of-Entry (in favor of Nexus), and
Permanent Maintenance Easement for Exterior of Wall (in favor of City) -
Application, right of entries and easements shall be submitted no late than sixty
(60) days after City approval of Final Plans.
Construction Commencement - Within thirty (30) days after approval of Building
Permits.
Construction Complete - Within one hundred twenty (120) days of
commencement of construction.
Ninety (90) day plant establishment phase after completion of construction of
climbing vines and irrigation.
d.
e.
f.
g.
Construction ofltem No.2 to Exhibit A shall conform to the following schedule:
a.
Final building permit plans shall be submitted by individual Sandpointe
homeowners to City no later than construction complete date for item no. 1,
above.
b.
Construction shall be complete pursuant within one hundred twenty (120) days of
issuance of City Building Permit.
Construction ofltem No.3 to Exhibit A shall conform to the following schedule:
a.
Nexus shall submit executed Definitive Easement Agreement to all parties no
later than one hundred eighty (180) days of the Commencement Date. If Nexus
fails to meet this deadline, which may be extended in writing by Nexus and
Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a
separate escrow with terms providing for its withdrawal by Sandpointe, which are
mutually agreeable to all parties, for use by Sandpointe on other projects to
benefit the Sandpointe neighborhood.
b.
Nexus shall complete this item not later than eighteen (18) months from the
EXHIBIT D
lR
11A-48
Commencement Date.
4.
Nexus shall pay City for item no. 4 to Exhibit A not later than approval ofthe first final
map for the Nexus Project. The City shall follow the Neighborhood Traffic Management
Plan Policy adopted by the City Council.
5.
Construction ofltem No.5 to Exhibit A shall confonn to the following schedule:
a.
The City shall provide Nexus with a preliminary estimate of this cost within thirty
(30) days of the Commencement Date. This preliminary estimate shall be updated,
if necessary, upon the City's receipt of Nexus application to final any portion of its
tentative tract map. Said estimate shall be conclusive.
b.
Nexus shall pay the City the estimated cost of this item not later than approval of
the first final map for the Nexus Project.
c.
The City shall complete construction of this item prior to the first certificate of
occupancy for the Nexus Project.
Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus
and the City Manager or designee.
EXHIBIT D
19
11 A-49
EXHIBIT C
SCHEDULE FOR PUBLICLY-OWNED IMPROVEMENTS
1.
City shall complete item no. 1.a. on Exhibit A of Publicly-Owned Improvements not later
than June 2005.
2.
City shall complete item no. 1.b. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
3.
City shall complete item no. l.c. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost ofthe
proj ect.
Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate the
completion of these Publicly-Owned Improvements (which, under current law. must be designed
and constructed by Southern California Edison and not the City) prior to the dates specified above.
EXHIBIT D
20
11 A-50
Exhibit "E"
Geneva Commons
Public Improvements
Improvement
Location
New sidewalk
Property frontage on First American Way
New driveway ("pan" style)
First American Way
Dedication for 25' x 25' corner cut-off
NIE corner of MacArthur & Imperial
Promenade
Sidewalk easement
10' along property 1Tontage of MacArthur
Blvd.
Street dedication
60' from street centerline along MacArthur
Blvd.
4" depressed curb
Emergency access on MacArthur Blvd.
Triple-left traffic mitigation measure
Southbound Imperial Promenade at
MacArthur Blvd.
Slurry Seal (including crack repair)
On Imperial Promenade and First American
Way along property frontage from curb to
street centerline
Installation of new public fire hydrants
Along MacArthur Blvd. and First American
Way
K:\Sr. I\lanagement\To Be Fikd\Geneva Commons Public lmprov.doc
11A-51
ORDINANCE NO. NS-2681
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AMENDING SPECIFIC DEVELOPMENT NO.
43, PERTAINING TO MACARTHUR PLACE (SD-43) (ZOA
NO. 2004-05)
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find, determine
and declare as follows:
D.
E.
A.
B.
C.
Zoning Ordinance Amendment No. 2004-05 has been filed with the City of
Santa Ana to amend the Specific Development No. 43 (SD-43) to increase
the allowed residential units to a total of 624, which includes the existing 346
and the proposed 278-unit development.
On January 4, 1988, the City Council created Specific Development No. 43
(NS-1941).
The Planning Commission of the City of Santa Ana held a duly noticed
public hearing on November 22, 2004, and by a vote of 5:0 (De La Torre
and Sinclair absent) voted to recommend that the City Council:
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2002-215.
Adopt an ordinance approving Development Agreement No. 2004-03.
Adopt an ordinance approving Zoning Ordinance Amendment No.
2004-05.
Adopt a resolution approving Conditional Use Permit No. 2004-24
as conditioned.
2.
3.
4.
5.
Adopt a resolution approving Tentative Tract Map No. 2004-05 as
cond itioned.
Adopt a resolution approving Variance No. 2004-11 as conditioned.
Adopt a resolution approving Site Plan Review No. 2004-06 as
cond itioned.
6.
7.
MacArthur Place (SD-43) original concept was to encourage the "village"
concept. The proposed amendments to SD-43 will allow additional
residential units to be constructed to exceed the 400 residential units
originally permitted in MacArthur Place.
Zoning Ordinance Amendment No. 2004-05 is consistent with the General
Plan, including but not limited to its goals and policies to:
Ordinance No. NS- 2681
Page 1 of 3
11A-52
Support high density residential development within the City's District
Centers as apart of master-planned mixed use development. Land
Use Element Policy 1.2.
Target areas in the City for the creation of new housing units and
opportunities for all segments of the community. Housing Element
Policy 4.1.
Encourage a balance of land uses that promote livable communities.
Housing Element Policy 6.2.
Zoning Ordinance Amendment No. 2004-05 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.
The Mitigated Negative Declaration and Mitigation Monitoring Program for
Environmental Review No. 2002-215, was approved and adopted by
resolution which came before the City Council on April 4, 2005. This
ordinance incorporates by reference, as though fully set forth herein, this
resolution and the Mitigated Negative Declaration and Mitigation
Monitoring Program.
Section 2. Specific Development No. 43 (SD-43) is hereby amended as set forth
in Exhibit "A", attached hereto and incorporated as though fully set forth herein.
Section 3. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that anyone or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
1.
2.
3.
F.
G.
ADOPTED this - day of April, 2005.
Miguel A. Pulido
Mayor
Ordinance No. NS- 2681
Page 2 of 5
11 A-53
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Kylee O. Otto
Assistant City Attorney
AYES:
Councilmembers
NOES:
Councilmembers
ABSTAIN:
Councilmembers
NOT PRESENT:
Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Ordinance No. NS-2681 to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS- 2681
Page 3 of 3
11 A-54
A.
III.
MAXIMUM PERMITTED BUILDING DENSITY/INTENSITY
MAXIMUM DENSITIES
The maximum authorized building densities/intensities for the MacArthur Place District Center are
as follows:
1.
4,051,000 square feet of Floor Area of office/commercial use; plus
2.
624 residential units;
3.
The maximum office/commercial density with no residential use is 4,175,000 square
feet of Floor Area.
The maximum densities can be converted or exchanged as follows:
a, 1,000 square feet of Floor Area for office
exchanged for 2 hotel rooms (common areas
determination of maximum densities).
space can be converted into and
in hotels are not calculated in the
b. 1,000 square feet of Floor Area of office space can be converted into and
exchanged for 3.23 residential units.
c. 1,000 square feet of Floor Area of office can be exchanged for 280 square feet of
retail commercial.
Parking structures are not included in the calculation of Floor Area.
The MacArthur Place District Center will be developed contingent on the installation of major
infrastructure improvements as set forth in the EIR. The applicable infrastructure improvements
corresponding to each phase of development within the MacArthur Place District Center are
required to be substantially completed as follows:
(i)
With respect to the first phase of the Development, fifty percent (50%) of all applicable
first phase off-site improvements set forth in Section 2.4 and Table 1 of the EIR shall
be completed prior to the issuance of any tenancy occupancy permits with respect to the
last building to be constructed in such phase, and the remainder of all first phase off-
site improvements shall be completed not later than one year following the date of
issuance of such tenant occupancy permit. Notwithstanding the foregoing, as a
condition to such one-year extension of the obligation to complete such first phase off-
site improvements, Developer shall deliver to City sufficient security to ensure the
completion of the remaining first phase off-site improvements within such one-year
period;
5
Ordinance No. NS- 2681
Page 4 of 5
11 A-55
2. No refuse collection areas shall be permitted between a frontage street and the building
line.
H.
Telephone and Electrical Service
All "on site" electrical lines and telephone lines shall be placed underground.
Transformers or terminal equipment shall be visually screened from view from streets and
adjacent properties.
RESIDENTIAL
A.
Buildine Heiehts
Building heights shall be as designated
Office/Commercial/Retail Hotel designation.
the
Professional/Building
III
B.
Permitted Density
Maximum density shall not exceed the 624 dwelling units for the entire MacArthur Place
District Center.
C. Minimum Lot Area
None.
D. Minimim Lot Width
None.
E. Usable Open Space
Ground level open space must be provided within 500 feet of any residential unit on the site
at a rate of 250 square feet of area for each unit. Such usable open space shall be divided
between common and private open space. Private and open space shall be required to be
provided for each unit at a rate of no less than ninety (90) square feet of the total open
space required.
F.
Yard Requirements
Refer to setbacks for Professional and Business Offices/Commercial/Retail/Hotel.
G.
Maximum Lot Coverage
None; provided, however, minimum setbacks complying with requirements of this Specific
Development Plan shall be required.
16
Exhibit "A"
11 A-56