HomeMy WebLinkAboutCOATAL RIMS & GENEVA COMMONS 1
A-2005-108
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
11111111111111111111111111111I111111111111111111111111I11111I11111111111III NO FE E
200500041475201 :26pm 05/31/05
11691 A12 50
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Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30
P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE ~ 6103
REST A TED AND NOVATED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
AND
COASTAL RIM PROPERTIES, mc., A CALIFORNlA CORPORATION,
and
GENEVA COMMONS, LLC, A CALIFORNlA LlMITED LlABILITY COMPANY
Dated: April 4, 2005
RESTATED 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 REST A TED 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.
I. RECITALS. The Agreement is entered into with reference to the following
facts:
I.I 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 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 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:
(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 ofthe 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 ofthe 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.
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1.6 Council Findings. The Council finds that this Agreement is consistent
with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances,
plans, policies and regulations of the City.
1.7 City Ordinance. On April 18, 2005, the Council adopted Ordinance No.
NS-2680 approving this Agreement. The ordinance becomes effective thirty (30) days
thereafter.
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 ofthis 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 ofthe 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
ne~len::ltlon
np,~crlptlon
Referred to
in Se.dlon
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 of the Council is first obtained and any
transfer or assignment of the rights under this Agreement shall include in writing the assumption
of the duties, obligations, and liabilities arising from this Agreement if the City grants written
consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to
assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act,
and any such assignment or transfer shall be wholly void and of no force and effect unless such
written consent thereto be obtained from the Council. Such transfer or assignment shall not
relieve Owner of any duty, obligation or liability to City without the consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shall observe and perform all of the duties and obligations of Owner
contained in this Agreement as such duties and obligations pertain to the portion of the Property
transferred or assigned. Any and all approved successors and assignees of Owner shall have all
of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If
the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated,
assigned, or transferred to persons for development by them in accordance with the provisions of
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this Agreement. Upon assigmnent 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 oftrust 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 Govermnent Code Section 65868.
The term "Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved and executed.
4.5 Enforcement. Notwithstanding Govermnent 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 attomey'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: (I) 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 indenmify, 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 Cmrnnons, LLC
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
telefacsimile: (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 Cal.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, cwnulative residential development in
the City, District, Owner will not object to participation in a community facilities district, assessment
8
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. A vigation 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,
9
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 (I) 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 of land, 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.
Tt~m~ to R~ rompletp.
Trig:g:ering: Fvent (I': g, New Use or New Area)
Prior to issuance of first Building Permit or five
(5) years from the effective date of this
Agreement, whichever comes first.
1. Submit Final Design of Public Art.
Final design must conform to Public Art
Plan.
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 term 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
11
provided by Health & Safety Code section 33413(b)(2)(A)), and/or (b) provide for up to sixty
percent (60%) of these inc1usionary 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 shall be utilized by the City in the Quadrant of the City (as set forth in
the City's Park A&D Fee program) in which the Project is located. If not 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 S 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 ofthe entire unit.
(3) No home occupancy shall be permitted in a unit, except In
accordance with section 41-192 et seq. of the Santa Ana Municipal Code.
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(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 pllblic 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
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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. S 12101 et seq., Government Code S 4450 et seq.,
and the Unruh Civil Rights Act, Civil Code S 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 shall have the duty to demonstrate by substantial evidence its good
faith compliance with the terms of the Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in compliance with the
Agreement after annual review, City shall, 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:
(1) 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
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.
(I) 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
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 ofthe 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 of the parties with respect to the matters set
forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements
between the parties respecting this Agreement. 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
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 of this
Agreement are part of this Agreement.
9.5 Captions. The captions of this Agreement are for convenience and
reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the
interpretation, construction, or meaning of any of the provisions of this Agreement.
9.6 Consent. Where the consent or approval of a party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with
each other in good faith, and assist each other in the performance of the provisions of this
Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
9.9 Conflicts of Law. In the event that state or federal laws or regulations
enacted after this Agreement has been entered into or the action or inaction of any other affected
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
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
IN WITNESS W~;FREOF, this Agreement has been executed by the City of
Santa Ana and by Property Owner.
SV
Dated thisaL day of ~~ i1A td.L-- , 200:2.
By
THE CITY OF SANTA ANA
~.
DAVID N. REAM
City Manager
Approved as to Form:
By
COASTAL RlM PROPERTIES, INC.,
A California Corporation
ATTEST. , "-
ClvJ~~ ~y~~
PA.TRICIA Eo HEALY
&LERK OF THE COllNCIL
Franco Mala
Its Chief Executive Officer
GENEVA COMMONS, LLC,
A California Limited Liability Company
(iIz:!!;J;L-y)
19
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 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 of ., the
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.
NOTARY PUBLIC
20
State of California
County of Orange
}ss.
s/c{7f06
On
Date
before me, Rosa S. Barela. Notary Public
Name and Title of Officer (e.g., "Jane Doe, Notary Public")
personally appeared David N. Ream
Namc(s)ofS~s)
0' personally known to me
o proved to me on the basis of satisfactory
evidence
to be the person{~ whose name~ (Ware
subscribed to the within instrument and
acknowledged to me that ~1....:tl''''J executed
the same in QUiZllCIfthdI authorized
capacity(ies}, and' that by @jlher/tlleir
signature(&) on the instrunIent the personEs}, or
the entity upon behalf of which the person~
acted, executed the instrunIent.
~------------~
ROSA S. BARELA
_. Commission # 1303103 z
~. Notary Public - California s:
Z Orange County f
~ _ _ _ _r.tt~~~res_Ma:30.:.~
W~and and official seal.
, . yJ, ;1n./-vp~
Siaiwlll'CofNotaryPublic
Place NOlary$eal Above
..
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 ~(d. day of U tU e.h , 2005, before me,
-JfS,{1Q~. ~a.dl" i ,a Notary Public in and for said state, personally appeared
WtJK""l~() Molo.... ,personally known to me (or proved to me on the basis
of satisfactory evidence) to be theCh,;"+: OOIl-!ilt' o\t~9f {lwskl elM ~q>2-I-hPs,ll'/!; the
l'W" t'l..t-f 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.@ JESSICA S. MARTINI ~
- Comm. # 1440974
tI).. NOTARY PUBLIC-CALIfORNIA ~
~ OrangeCounly....
My Comm Expires S,p..23,2oo7 I
-2.rv1~
20
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 J'l1,;f- day of ~J-.-- , 200S , before me,
~ a Notary Public in and for said state, personally appeared
. j' e...- , personally known to me (or proved to me on the basis
of sati~factory evidence) to be the Ma,'^"1~ f /AD<.( of ~td- (!o1\M<M5 (J.c, the
~~ ~1lAt:L;V.. 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.
e MONIOUEJlJTEAU
Commission 111337679
~, Notary P~blic . C..lomi.
~ Orange County f
__,.. _ _My:o:m,;,.,~i":J~5.:...2~
~~
NOT RY PlMlLIC
20
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.
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EXHIBIT B
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,..,,,.. "'" """0'''''' COASTAL RIM PROPERTIES
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
Agreemeut.
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.)
11. 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
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
COOPERATIVE AGREEMENT FOR
OFF-SITE IMPROVEMENTS
THIS Agreement is entered into this day of ,2005, by and between
the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public
benefit and federaI501(c)(3) corporation ("Sandpointe"), the NEXUS DEVELOPMENT
CORPORATION/CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2,
LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"),
COASTAL RIM PROPERTIES, INC., 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").
C. 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 term is defmed 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 Project 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
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 of the 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 of the 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 of the 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).
2
2. COMPENSA nON 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 (referred 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. of this 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 determines 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 of the 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 of the 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, inform both Geneva
Commons and Nexus in writing of the fInal determination 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 of the estimated cost of the Nexus
Improvements as set forth in paragraph I.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
permit 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 permit 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.
1
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 of Performance 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
informally as frequently as is necessary to insure that the formal 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 of Performance 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 of the Final Plans if the Final Plans do
not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A
to this Agreement, or are incomplete.
4
C. The City shall state in writing the reasons for disapproval of the 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
conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the
cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and
the approved Final Plans, exceeds the funds in the Nexus Escrow, Nexus and Geneva Cornmons
shall be solely responsible for said costs, with each responsible for any additional cost to the same
percentage as is set forth in paragraph I.R of this Agreement. Nexus shall complete or fund, as the
case may be, the construction of the improvements in conformance 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 permission of each of these individual property owners to construct this
Block Wall and to permit the City to permanently 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 permit 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 hannIess from any claim by any and all property owners
including such hold outs arising out of the construction of the Block Wall in which Sandpointe, or its
officers, directors, employees or agents are named. Nexus shall be permitted 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.
~
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 of the residential units have been constructed within five (5) years of the 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 of the 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 conformance 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 fa~ade easement with the
City in a form approved by the City Attorney permitting 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 hannless 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 and save
n
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, iri 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 of the 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 ofliability
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 and electrical codes, and all
other provisions of the City and its Municipal Code, and all applicable disabled and handicapped
7
access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C.
S 12101 et seq., Government Code S 4450 et seq., and the Unruh Civil Rights Act, Civil Code S 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.
II. 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 of this Agreement.
12. APPLICABLE LAW
Tlris 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.
Tlris 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 of this 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.
R
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 of this 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
Ann: 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
Ann: 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
l)
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
I MacArthur Place, Suite 300
Santa Ana, Califomia 92707
Attention: Cory W. Alder
Geneva Commons:
Coastal Rim Properties, Inc.
139 East Alton Avenue
Santa Ana, Califomia 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 addre.ssed 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 frames, weekends, federal, state, County or City holidays hall be excluded.
10
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 of the governing bodies thereof and shall be effective
until completion and acceptance of the 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 of the Nexus Improvements under this Agreement, but
shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the
Nexus Improvements specified in Exhibit A as a guide, designate which of the 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 of the Nexus Improvements shall be constructed using Nexus seventy-five percent (75%)
share of the estimated cost of the total Nexus Improvements.
17. COMMENCEMENT DATE
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 daie 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
writing the assumption of the duties, obligations, and liabilities arising from this Agreement if
11
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, We.
~~m~
Its ('f(,I,r:~i'W
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DMSION, INC.
By
Name
Its
12
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 CORPORATION/
CENTRAL DIVISION, INC.
By
Name
Its
~)LOJ
12
ATTEST:
Patricia E. Healy
Clerk ofthe Council
APPROVED AS TO FORM:
JOSep~1;:,Fletc e
Ci pomey
THE GRAND PLAN 2, LLC
By
1Jc~J.-w-
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INe.
By
Name
Its
THE CITY OF SANTA ANA
By
David N. Ream
City Manager
n
ATTEST:
Patricia E. Healy
Clerk of the Council
THE GRAND PLAN 2, LLC
By
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INe.
By 1\ [~,
Name
Its
THE CITY OF SANTA ANA
By
David N. Ream
City Manager
11
A TrEST:
Patricia E. Healy
Secretary of Agency
COMMUNITY DEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA
By
Patricia C. Whitaker
Executive Director
14
EXHIBIT A
OFF-SITE IMPROVEMENTS
Nexus Tmprovempnh
1. Block Wall
a. Main Street between Murphy & Sunflower, and house located at !OI W. Murphy
b. North side of Sunflower between Main & alley adjacent to four pIexes, excluding
sections of wall at corner 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. of this 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 of the
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. I.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
IS
replacement improvements.
e. Window specifications shall be established pursuant to paragraph 4 of this
Agreement.
3. 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.
PlIhlidy-Ownprl Trnprovpmpnts
I Utility Undergrounding
a. Main Street - MacArthur to Sunflower
b. MacArthur - Main to Flower
c. Sunflower - Main to Flower (north side of street)
Hi
Single Family Homes:
. I. 101 W. Murphy
2. 3701 5. Alder
3. 37055. Aldel'
4. 3709 S. Alder
5. 3713 S. Alder
6. 3717 S. Ald.r
7. 37215. Alder
8. 3725 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. Aid...
15. 38215. Alder
16. 3825 S. Alder
17. 3829 S. Aldel'
18. 390 I S. Aida
19. 3905 S. Alder
20. 3909 s. Alder
21. 102 W. St....,.
22. 106 W. Steven.'
23. 110 W. Stevens
24. 114 W. Stev....
25. 118 W. Stc.en:l
26. 122W.S.......s
27. 202 W.S~
28. 206 W. StevC11.
29. 210 W. Steven.
30. 214 W. S.....,.
31. 3926 S. limber
32. 302 W. SWV<t1.
33. 306 W. Sh:v<nS
34. 310 W. Slevell.
35. 314 W. Steven..
36. 318 S. Stev....
37. 3922 S. Birch
Fourplexll:S
38. 3925 5. Ros"
39. 401 W. Sunflower
40. 405 W. Sunflower
41. 409 W. Sunflower
42. 501 W. S.nflower
43. 50S W. SunflOW<!"
44. 509 W. 5unflo_
45. 513 W. Sunflower
Main Attraction Condominium.
46. 3620 A S. Mojn
47.3632 A 5. Main
48.3632 B S. Main
49.3632 C S. Main
EXHIBIT A-I
List of 49 Residential Units
Lis! ofEligiblc Hom.. for
Window Replacemenl:s
Along Main Jl'ld Sunflower
(sid.. to Main)
(backs to Mllin)
(backs to Main)
(backs.o Main)
(bal:ks tn Main)
(backs to Main)
(back.. to Main)
(backs l<l Main)
(backs to Main)
(backs to Main)
(hac:k.. l<l Main
(backs to Main)
(backs to Main)
(backs In Maln)
(backs to Main)
(backs '0 Alder)
(backs '0 Main)
(back. to Main)
(backs to Main)
(bac:k.. to Main)
(backs to Main ..d MiniMarket)
(bBcks to Mojn and Mini Marl<et)
(bBcks to Main and Mini Marlcct)
(hac.. to Sunflower and Mini Markot)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(backs [0 Sunllower)
(backs to Sunflower)
(backs to Sunflower)
(aides '0 Sunflower)
(backs to SunflowOT)
(backs to Sunflower)
(bac:k.. to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(.ides to 5unllower)
(mmts Sunflower)
(flvnts Sunflower)
(flvnts Sunflower)
(fTonts Sunflower)
(!Tonl' Sunflower)
(mml.Sunllower)
(franlS Sunflower)
(sides to Main)
(lfanls Main)
(fTonls Main)
(fronts Mein)
17
EXHIBIT B
SCHEDULE OF NEXUS IMPROVEMENTS
I. Construction of Item No. I to Exhibit A shall conform to the following schedule:
a. Preliminary Site Plans - Due within thirty (30) days of the Commencement Date.
c. 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.
d. 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.
e. Construction Commencement - Within thirty (30) days after approval of Building
Permits.
f. Construction Complete - Within one hundred twenty (120) days of
commencement of construction.
g. Ninety (90) day plant establishment phase after completion of construction of
climbing vines and irrigation.
2. Construction ofItem 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. I,
above.
b. Construction shall be complete pursuant within one hundred twenty (120) days of
issuance of City Building Permit.
3. Construction of Item 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
lR
Commencement Date.
4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final
map for the Nexus Project. The City shall follow the Neighborhood Traffic Management
Plan Policy adopted by the City Council.
5. Construction ofItem No.5 to ExhibitA shall conform 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 fmal 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 fmal 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. .
19
EXHIBIT C
SCHEDULE FOR PUBLlCL Y -OWNED IMPROVEMENTS
1. City shall complete item no. I.a. on Exhibit A of Publicly-Owned Improvements not later
than June 2005.
2. City shall complete item no. I.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. I.c. 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.
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.
20
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' comer cut-off
N/E comer of MacArthur & Imperial
Promenade
Sidewalk easement
10' along property frontage 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. Management\To Be Fited\Geneva Commons Public improv.doc
James P. Kousoulas
Attorney
Direct: (949) 223-7177
January 24, 2006
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza.
Santa Ana, California 92701
Re: BANK MIDWEST N.A./GENEVA COMMONS GROUP, L.P., a
California limited partnership ("Loan")
Master Declaration of Covenants, Conditions, Easements and Restrictions
and the Second Amendment to Master Declaration of Covenants, Conditions,
Easements and Restrictions
To Whom It May Concern:
This letter shall serve as notice, pursuant to Article XIII of that Master Declaration
of Covenants, Conditions, Easements and Restrictions recorded on July 31, 1991,
as Instrument No. 91-405476 in the Official Records of Orange County, California
(as the same has been or may be amended from time to time, "Declaration") and
pursuant to Sections 16.7(d) and 16.12 of the Second Amendment to Master
Declaration of Covenants, Conditions, Easements and Restrictions recorded on
April 9, 1998, as Instrument No. 19980210010 in the Official Records of Orange
County, California ("Second Amendment"), that BANK MIDWEST N.A.
("Lender") shall be the holder of the beneficial interest under that certain
Construction Deed of Trust, Assignment of Leases and Security Agreement
(Including Fixture Filing) ("Deed of Trust"), and executed by GENEVA
COMMONS GROUP, L.P., a California limited partnership ("Borrower"), as
trustor, to First American Title Company, as trustee, in favor of Lender, as
beneficiary.
Bryan Cave LLP
2020 Main Street, Suite 600
Irvine, CA 92614-8226
Te1~949-223-7000
Fax 1949; 223-7100
www.bryancave.com
Chicago:
Hong Kang
Irvine
Jefferson City
Kansas City
Kuwait
Los Angeles
New York
Phoenix
fliyadh
Shanghai
St. Louis
United Arab Emirates (Dubai)
Washington, DC
And Bryan Cave,
A Multinational Partnership,
London
,/
As the holder of the first trust deed lien on a portion of the property ("Covered , ~ ~% ,~ (~\
Property") described in the Declaration, Lender requests that it be provided with ~~'"~" ~ Q~
written notice by the "City" (as defined in the Declaration) of any default in the ~/~~~' ` •~
performance of obligations under the Declaration, and any amendments thereto, ~"
at the following address:
IROIDOCS\307854.1
1 ~-
~ n „,
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r) ~~ ~~
a°
•
Clerk of the Council
January 24, 2006
Page 2
Attn: Scott Gauldin
Bank Midwest N.A.
1100 Main Street Kansas City
Missouri 64105-2105
Please contact me at 949.223.7177 if you have any questions. Thank you.
Sincerely,
J
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Bryan Cave LLP
IROIDOCS\307854.1