HomeMy WebLinkAboutGRAND PLAN I & II 1
A-2005-190
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
111111111111111111111111111111111111111111111111111111111111111111111111111 NO FE E
2005000565108 03:12pm 07121105
11667 A12 70
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
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
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
And
THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC
Dated: August 4, 2005
DOCSOC/II 10339v11124579-0001
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Table of Contents
Page
1. RECITAL S ......................................... .................... ............. .....................................................1
1.1 Purpose. .. .... ............ .............................. .............. ...................................... .... ................1
1.2 C ode Au tho riza ti 0 n .................... ............ .................. ......................................... ..........1
1.3 Own er ...................... ...... .............. ........ ................. ......................... ................ ...............1
1.4 Planning Commission - Council Hearings ................................................................1
1.5 Co un cil Findings ................................... .................. ....................................... ..............2
1. 6 City Ordinance........................ ........ ................... .......... ..... ..................................... ......2
2. D EFINITI ON S ................... ............................... ............... ........................ ............. ...................2
3 . EXHIBIT S ......................................... ................ .................... ... .... ....................................... ..... 7
4. GENERAL PRO VISION S. ..................................................................................................... 7
4.1 Duration of Agreement ............................................................................................... 7
4.2 As si gnm en t ................................... ...... .................... ..................................... ..... ............7
4.3 P ermi tted Assignments ....... ............................ ........... .................................................8
4.4 Amendment or Cancellation of Agreement ..............................................................8
4 .5 Hold Harml ess .......................... ..... ............ ................................... ................. ..............9
4.6 Binding Effect of Agreement ......................................................................................9
4.7 Relationship of the Parties ..........................................................................................9
4.8 N oti ces..... ............... ....... ............................ ............................. ....... ................. ...............9
5. DEVELOPMENT OF THE PROPERTY. ..........................................................................10
5.1 Own er 0 b Ii ga ti 0 ns.............. ............................... ................... ........... .............. ............1 0
5.1.1 Cooperative Agreement ................................................................................1 0
5.1.2 Pu blic Improvements ....................................................................................1 0
5.1.3 Phasing ..................... .................. ...................................................... ..............11
5.1.4 FAA App roval...............................................................................................11
5.1.5 A vigation Easement ......................................................................................11
5.1.6 Limit on Fast Food and Take Out Restaurants .........................................11
5.1.7 Development, Construction and Completion of Public Art ......................11
5.1.8 Inclusionary Housing Fee .............................................................................11
5.1.9 In-Lieu Park Development Fee....................................................................11
5.1.10 Covenants, Conditions, and Restrictions ....................................................12
5.1.11 Parking Structure Easement ........................................................................12
5.1.12 Lake Imp rove m en ts ...... ...... .............. .......................................................... ..13
5.1.13 Use of "City of Santa Ana" ........................................................................13
5.1.14 Compliance With Governmental Requirements ........................................13
5.1.15 Obligation to Submit Working Drawings and Commence
Co nstru cti 0 n ..... ................................... ......................................................... .13
5.2 Ci ty 0 b Ii ga ti 0 ns ........................................ ........................................................... ......13
5.2.1
5.2.2
5.2.3
5.2.4
5.2.5
5.2.6
Vested Rights to Develop..............................................................................13
Non-application of Changes in Applicable Rules.......................................13
Special T axes and Assessments ....................................................................14
Agreed Changes and Other Reserved Powers............................................14
S u bseq uent Development Approvals ...........................................................14
Mora to ria ...................... ..... ............ ..... .......................................................... .14
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Table of Contents
(continued)
Page
5.2.7 Timing of Development ................................................................................14
5.2.8 Development Impact Fees ............................................................................14
5.3 Coop era tiv e Agreement ......... .............................................. ........... ..........................14
6. ANNUAL RE VIE W . ..............................................................................................................14
6.1 City and Owner Respo nsibilities ..............................................................................14
6.2 Revi ew Letter ......... ................... ........................................... .............. ............ ............15
6.3 Failure of Periodic Review ........................................................................................15
7.1
7. D EF A UL T. .............................................................................................................................15
7.2
7.3
7.5
7.6
7.7
7.8
7.9
7.10
E vents of Defa ult by Owner ......................................................................................15
7.1.2 Events of Default by City .............................................................................15
Procedure u po n Breach ............................. ..... ... ......... ..... ................ ............ .............16
T ermina ti 0 n................ ................ ..... ................. ... .... .... .................... ............ .............. .16
Institutio n of Legal Actio n ........................................................................................16
M ul tip Ie Own ers ............... ..................................................... ........... .........................16
Al tern a tiv e Dis p u te Reso I u ti 0 n ........... .............................. ............ ...........................1 7
Interim Relief .......... .... ................. ................................... ........... .................. ..............18
Entitlements Survive T ermination...........................................................................18
MiscellaD eo us. ..................... ....................... ......................... ............... ................ ........18
8. M 0 R TG AGEE PROTECTI ON S .........................................................................................18
8.1 Right to Owner IN oticelMultiple Mortgagees ..........................................................18
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure ...........18
8.3 Mortgagee Not Obligated Under the Agreement....................................................19
8.4 No Lia b ili ty .................... .......................... .............................. .................. ................. .19
8.5 No Amendment or T ermination ...............................................................................19
8.6 Co ndemna tio nor Insurance Proceeds.....................................................................19
8.7 Title by F oreclosure...................................................................................................19
8.8 Del ega ti 0 n to M 0 rtga gee..... .......................................... .................. ........... ...............19
8.9 No Obligation to Cure ...............................................................................................20
8.1 0 Sep ara te Agreem en t ........ .............................................................. ............... .............20
8.11 E stoppel C ertifi ca te ....... .................. ......................................... ............ .....................20
8.12 Conflicts ............. ......... ............................... ............................... ............. .....................20
9 . MISCELLANEOUS PRO VISI ON S.....................................................................................20
9.1 Rul es of Cons tru cti 0 n ............. ................................. .............. .......... ..........................2 0
9.2 Entire Agreement, Waivers and Amendments .......................................................20
9.3 Project as a Private U ndertaking .............................................................................21
9.4 IDCO rporation of Recitals ..........................................................................................21
9.5 Cap ti 0 ns ............................ ..................... ............................ ............... .............. ............21
9.6 Co nsen t ............................ ......................... ..................... ................... ..........................21
Table of Contents
( continued)
Page
9.12 Subdivision of Project ...............................................................................................22
9 .13 Severa b ili ty ......... ................ ................ ... ........... .................. ................. .......................22
9.14 W ai v er ............ ................. ................ ............ .................. ................... ............. .... .........2 2
9 .15 No Personal Liability .................................................................................................22
9.16 Conditions of Discretionary Approvals ...................................................................22
9.1 7 Prec ede DC e......... ................. ........... ..................... ... ................ ........... ..........................2 2
EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
PROPERTY DESCRIPTION
PUBLIC ART PLAN
COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS
PUBLIC IMPROVEMENTS
A VIGA TION EASEMENT
LAKE IMPROVEMENTS
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DOCSOCI1110339vl1/24579-0001
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA,
THE GRAND PLAN 1, LLC AND THE GRAND PLAN 2, LLC
This 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"), THE GRAND PLAN l, LLC, a
California limited liability company ("GP1") and THE GRAND PLAN 2, LLC, a California limited
liability company ("GP2"). GP1 and GP2 are collectively referred to herein, along with their
permitted successors and assigns, as "Owner".
1. RECITALS. The Agreement is entered into with reference to the following facts:
1.1 Purpose.
(1) The purpose of this Agreement is to facilitate the development of
approximately 9.79 acres of real property, located at the southeast corner of MacArthur Boulevard
and Main Street (the "Property") as a mixed use project with for-sale residential condominiums and
office/commerciaVretail uses more particularly described in the definition of "Project" in
Section 2.43.
(2) The Property is described in Exhibit A and consists of an
approximately 2.04 acre parcel currently owned by GPl ("GP1 Parcel"), and an approximately 6.68
acre parcel currently owned by GP2 ("GP2 Parcel") and an approximately .78 acre parcel which is
the subject of a contract to purchase by Owner (the "Fried Parcel"). The GPI Parcel and GP2 Parcel
are referred to in Exhibit A as the "Owner Parcel."
1.2 Code Authorization. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the economic risk of development, the
Legislature of the State of California adopted the Development Agreement Act which authorizes any
city to enter into binding development agreements establishing certain development rights in real
property with persons having legal or equitable interests in such property.
To ensure that the City remains responsive and accountable to its residents while
pursuing the benefits of development agreements contemplated by the Legislature, the City:
(i) accepts restraints on its police powers contained in this Agreement consistent with existing law,
only to the extent and for the duration required to achieve the mutual objectives of the Parties; and
(ii) to offset such restraints, seeks extraordinary and significant public infra structure facilities and
other supplemental benefits, as set forth in Section 5.1, in addition to those available through the
existing regulatory process.
1.3 Owner. Owner represents and warrants that it owns the Owner Parcel and is
under contract to purchase the Fried Parcel. The Property is currently a mix of vacant and occupied
uses.
1.4 Planning Commission - Council Hearings. On May 23, 2005, the Planning
Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code
Sections 65090 and 65091, held a public hearing to consider the Owner's application for this
Agreement. The Planning Commission recommended to the City Council of City that it execute this
DOCSOC/1110339vl1/24579-0001
Agreement. On June 20, 2005, the City Council of the City of Santa Ana ("Council"), after
providing notice as required by law, held a public hearing to consider the Owner's application for
this Agreement.
1.5 Council Findings. The Council finds that this Agreement is consistent with
the General Plan, applicable Specific Planes) as well as all other applicable ordinances, plans,
policies and regulations of the City.
1.6 City Ordinance. On July 5, 2005, the Council adopted Ordinance
No. NS-269l approving this Agreement. The ordinance becomes effective thirty (30) days thereafter
(the "Effective Date").
2. DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Affiliate" means any entity of which not less than fifty percent (50%) is
owned by (i) Owner and/or its managing member and/or Nexus, in the case of Owner or (ii) Integral
or the principal shareholders of Integral, in the case of Integral.
2.2 "Agreement" means this Development Agreement, including all exhibits
attached hereto and all amendments and modifications thereto.
2.3
of this Agreement.
"Annual Review" means the annual review process as described in Section 6
2.4 "Applicable Rules" means all rules, regulations, ordinances and official
plans and policies of the City in force as of the Effective Date as included within the SAMC, this
Agreement and the Entitlements.
2.5 "Applicable Processing Fees and Charges" means all processing fees and
charges required by the City uniformly in connection with all new construction, including, but not
limited to, fees for land use applications, project permits, building applications, building permits,
grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street
vacations, certificates of occupancy and other similar permits. Applicable Processing Fees and
Charges shall not include Development Impact Fees or any exaction, impact fee, sharing fee or other
fee or charge that is in the nature of a Development Impact Fee.
2.6 "Avigation Easement" means the Avigation Easement attached hereto as
Exhibit E and incorporated herein by reference.
2.7 "Breach" is defined in Section 7.2.
2.8 "Cinema Tower" is defined Section 2.43.
2.9 "City Agency" means each and every agency, department, board,
commission, authority, employee, and/or official acting under the authority of the City, including
without limitation the City Council and the Planning Commission.
2.10 "City Attorney" means the City Attorney of the City.
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DOCSOC/1110339vl1/24579-0001
2.11 "City Council" means the City Council of the City which is the legislative
body of the City pursuant to Section 65867 of the California Government Code.
2.12 "City Manager" means the chief administrative officer of the City.
2.13 "Condo-Office Project" is defined in Section 2.44.
2.14 "Commencement of Construction" means the point in time when concrete
is being poured for foundations for a particular Element pursuant to a validly issued permit.
2.15 "Cooperative Agreement" means the Cooperative Agreement for Offsite
Improvements attached hereto as Exhibit C and incorporated herein by reference, which Cooperative
Agreement and the obligations hereunder with respect thereto, shall survive termination of this
Agreement.
2.16 "Default" is defined in Section 7.2.
2.17 "Development Agreement Act" means Article 2.5 of Chapter 4 of Division I
of Title 7 (Sections 65864 through 65869.5) of the California Government Code.
2.18 "Development Impact Fees" means impact fees, linkage fees, exactions, or
fair share charges or other similar impact fees or charges (whether collected as a condition to
issuance of demolition, grading and/or building permits, or otherwise) imposed by the City on and in
connection with new development pursuant to the Applicable Rules. If at any time following the
Effective Date it becomes legal for any of the foregoing fees or charges to be collected with property
taxes, then any such amounts collectible in such manner shall constitute Development Impact Fees
hereunder. Development Impact Fees do not include (a) Applicable Processing Fees and Charges,
(b) impact fees, linkage fees, exactions, assessments or fair share charges or other similar fees or
charges imposed by other governmental entities and which the City is required to collect or assess
pursuant to applicable law (e.g., school district impact fees pursuant to Government Code
Section 65995), or (c) increases in Development Impact Fees under the Applicable Rules, occurring
after the Effective Date but only if and to the extent any such increase does not exceed the amount of
such Development Impact Fee as of the Effective Date increased at a rate not to exceed the rate of
increase established by the "Construction Costs Index- Los Angeles" published by Engineering
News-Record or substitute index mutually agreed upon by the parties should that index be
discontinued, from the Effective Date to the date such Development Impact Fee is paid.
2.19 "Effective Date" means August 4, 2005, the date upon which the ordinance
approving this Agreement becomes effective.
2.20 "Element" is defined in 2.43.
2.21 "Entitlements" mean the City approvals for the Project granted pursuant to
the Applicable Rules as set forth in detail in the Final Environmental Impact Report for
Environmental Review No. 2004-02; Tentative Tract Map Nos. 2005-02, 2005-03, 2005-04 (County
Map Nos. 16621, 16622 and 16626); Variance Nos. 2005-05, 2005-07, 2005-10, and 2005-12;
Zoning Ordinance Amendment No. 2005-01 (creating Specific Development No. 76 aka SD-76);
Conditional Use Permit Nos. 2005-10, 2005-11, 2005-12, 2005-13 and 2005-15; and the "MacArthur
Place Master Plan" dated April 11, 2005, as each are conditioned in City Council Resolution
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DOCSOC/11 10339vl 1124579-0001
No. 2005-064. The parties understand and acknowledge that the implementation of the Entitlements
will require Subsequent Development Approvals, the approval, conditional approval or rejection of
which shall be in accordance with the Applicable Rules. The word "Entitlements" shall include an
interior design standard for all Residential Units of 42 dBA CNEL for purposes of attenuating noise,
to be met with all of the unit's windows and doors closed. For each Element that incorporates
Residential Units, a qualified acoustical consultant shall conduct an analysis demonstrating
compliance with said interior noise design standard to be submitted to the City's Building and
Planning Safety Agency for review and approval prior to the issuance of Utility Release(s).
2.22 "Final Design Documents" means the final design documents for the Public
Art consistent with the Public Art Plans.
2.23 "Fried Portion" is defined in Section 2.43.
2.24 "Integral" means Integral Communities I, a Delaware Corporation.
2.25 "General Plan" means the General Plan of the City.
2.26 "Inclusionary Housing Fee" is defined in Section 5.1.8.
2.27 "In-Lieu Park Fee" is defined in Section 5.1.9.
2.28 "Litigation" shall mean any lawsuit or cross-action, including the legal action
and/or alternative dispute resolutions described in Section 7, challenging the validity of this
transaction or any Element thereof or the rights of either party hereunder and/or the rights of either
party to engage in the acts and transactions contemplated by this Agreement.
2.29 "Mezzanine Lender" means a lender who provides funds for the
construction of the Project, or parts thereof, and takes a security interest in an asset other than the
Property or Project such as the ownership interest of the Owner in the Property or Project.
2.30 "Mortgage" means any mortgage, deed of trust, pledge, encumbrance, sale
leaseback, or other security interest with respect to the Property and/or Project and/or the interests of
the Owner in the Property and or Project and/or this Agreement, granted to a lender not affiliated
with Owner, made in good faith and for fair value, encumbering all or any part of the Property and/or
Project or Owner's interest in the Property and/or Project and/or this Agreement, given by Owner for
the purpose of obtaining construction financing of the Project, or any portion thereof.
2.31 "Mortgage Parcel" is defined in Section 8.1.
2.32 "Mortgagee(s)" means (i) any institutional lender that is a mortgagee or
beneficiary under a deed of trust, (ii) a Mezzanine lender and/or (iii) any person or entity acquiring
fee title under a first or second mortgage who has delivered a Mortgagee Notice to the City or any
transferee of the above.
2.33 "Mortgagee Notice" is defined in Section 8.2.
2.34 "Nexus" means Nexus Development Corporation/Central Division, Inc., a
California Corporation.
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2.35 "Notice" and "Notice Period" are defined in Section 7.2.
2.36 "Owner" means GP1, GP2 and/or permitted assignees or transferees each
with respect to the part of the Property owned by it.
2.37 "Owners' Association(s)" means the assocIatIOn of owners of the
Residential Units ("Homeowners' Association(s)) and/or associations formed by the owners of the
retail portions and/or office portions of the Project formed for the purpose of governing and
controlling the common areas associated with each Element and the Project, as a whole.
2.38 "Parties" means collectively Owner and the City.
2.39 "Party" means anyone of Owner or the City.
2.40 "Plaintiff' means any party seeking relief or compensation through Litigation
whether as plaintiff, petitioner, cross-complainant or otherwise.
2.41 "Planning Commission" means the Planning Commission of the City and
the planning agency of the City pursuant to Section 65867 of the California Government Code.
2.42 "Periodic Review" is defined in Section 6.1.
2.43 "Project" is the development of the Property pursuant to the Entitlements,
with the following:
(I) Three (3) twenty-five (25) Story Towers consisting of two (2) towers
with three hundred fifty (350) for sale residential condominium units (each a "Lake Tower" or
together the "Lake Towers") and One (1) tower with one hundred fifty (150) for-sale residential
condominium units (the "Cinema Tower");
(2) A six (6) story tower consisting of fifteen (15) for-sale residential
condominium units on four (4) floors and approximately ten thousand (10,000) square feet of office
on two (2) floors (the "Condo/Office Project");
(3) A five (5) or six (6) story building containing two hundred seventy-
six (276) for-sale residential condominium units (the "Integral Project"); and
(4) Approximately thirteen thousand eight hundred seventy-one (13,871)
square feet of commercial space consisting of approximately eight thousand five hundred eighty
(8,580) square feet of restaurant ("Restaurant Portion") and approximately five thousand two
hundred ninety (5,290) square feet of retail (the "Fried Portion"). The Restaurant Portion and Fried
Portion are collectively referred to herein as the "Retail Project".
Each of the Lake Towers, the Cinema Tower, the Condo/Office Project, Integral Project and
the Retail Project are each an "Element."
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DOCSOC/1 1l0339vl 1/24579-0001
2.44 "Property" is legally described in Exhibit A.
2.45 "Public Art" is defined in Section 5.1.7.
2.46 "Public Art Fee" is defined in Section 5.1.7.
2.4 7 "Public Art Plan" is set forth in Exhibit B attached hereto and incorporated
herein by reference.
2.48 "Public Improvements" are described ill Exhibit D attached hereto and
incorporated herein by reference.
2.49 "Reserved Powers" means the rights and authority excepted from this
Agreement's restrictions on the City's police powers and which are instead reserved to the City. The
Reserved Powers include the power to enact and implement rules, regulations, ordinances and
policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in
conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found
to be injurious or detrimental to the public health and/or safety; (b) are Uniform Codes; (c) are
required to comply with mandates under state and federal laws, rules and regulations (whether
enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of
a state or federal court; (d) relate to Applicable Processing Fees or Charges imposed and/or increased
after the Effective Date; (e) or relate to increases in Development Impact Fees occurring after the
Effective Date but only if and to the extent described in Section 2.17(c), or (f) are consented to by
Owner.
2.50 "Residential Unit(s)" means each of the for-sale residential units within the
Project.
2.51 "Retail Project" is defined in Section 2.43.
2.52 "Restaurant Portion" is defined in Section 2.43.
2.53 "SAMC" means the Santa Ana Municipal Code.
2.54 "Signs" means the gateway entry signs described in Section 5.1.7.
2.55 "Subsequent Development Approvals" means those certain actions taken by
any City Agency after the Effective Date, in connection with the implementation of the Entitlements
or any approved modification of the Entitlements, or any requested minor modifications of the
Entitlements.
2.56 "Term" means the applicable period of time during which this Agreement
shall be in effect and shall bind the City and Owner, as described in Section 4.1.
2.57 "Uniform Codes" means those building, electrical, mechanical, fire and other
similar regulations of a City-wide scope which are based on recommendations of a multi-state
professional organization and become applicable throughout the City, such as, but not limited to, the
California Building Code, the California Electrical Code, the California Mechanical Code, or the
California Fire Code (including those amendments to the promulgated Uniform Codes which reflect
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DOCSOC/l 1 10339vll/24579-0001
local modification to implement the published recommendations of the multi-state organization and
which are applicable City-wide)
2.58 "Utility Release(s)" means the formal approval of the City Building
Department, following its inspection, that Residential Unites) may be released for initial connection
to the electrical power system, water service system, gas service system, and sanitary sewer system.
Utility Release(s) do not include temporary utility service provided to any structure during
construction.
2.59 "Work(s) of Public Art" is defined in Section 5.1.7.
3. EXHIBITS. The following documents referred to in the Agreement are attached to
this Agreement and are identified as follows:
A
Description
Property Legal Description
Referred to
in Section( s)
Exhibit
Designation
B
C
Public Art Plan
Cooperative Agreement for Off-Site
Improvements
Public Improvements
A vigation Easement
Lake Improvements
1.1.1 (2),
2.44
2.46,5.1.7
2.15,5.1.1
D
E
F
2.47,5.1.2
2.6,5.1.5
5.1.12
4. GENERAL PROVISIONS.
4.1 Duration of Agreement. The term of this Agreement shall be for ten (10)
years; provided, however that the Owner may request one two-year extension from the Executive
Director of the Planning and Building Safety Agency, which request shall not be unreasonably
denied and provided further that this Agreement shall automatically terminate upon the latter to occur
of (i) completion of construction of the entire Project or (ii) the granting of Certificates of Occupancy
(or similar permission to occupy) for the final Element of the Project and sale of all Residential units.
4.2 Assignment. Except as provided in Section 4.3 and prior to completion of
the Project or any Element thereof, Owner (and/or Integral with respect to the Integral Project, if
owner assigns the Integral Project to Integral) shall not have the right to transfer or assign this
Agreement with respect to all or any portion of the Property to any person, entity (public or private),
partnership, joint venture, firm or corporation unless the written consent of the City is first obtained,
acting in its reasonable discretion. In exercising its reasonable discretion, the City shall limit its
review to the development experience and financial capability of the proposed assignee or transferee
and shall approve any such assignment or transfer if the proposed assignee or transferee has financial
capability and development experience with respect to the Project equal to or greater than the
managing member of Owner (or Integral in the case of the Integral Project after assignment of the
Integral Project). Any transfer or assignment of rights under (i) Section 4.3, or (ii) requiring City
Council consent under this Section 4.2 shall include an assignment and assumption agreement
confirming that the duties obligations and liabilities arising from this Agreement with respect to all or
any portion of the Property shall be assumed by the transferee. To the extent permitted by law, the
rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or
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DOCSOC/l 1 10339vl1/24579-0001
proceedings under any provisions of the Bankruptcy Act, and such assignment or transfer shall be, to
the extent permitted by law wholly void and of no force and effect unless such assignment or transfer
has been consented to by the City Council.
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 this Agreement. Following a
permitted assignment herewith the assignor shall have no further rights or obligations with respect to
the Project or Element assigned, as the case may be.
4.3 Permitted Assignments. The prohibition against transfer of this Agreement
with respect to all or any portion of the Property as described in Section 4.2 above shall not apply to,
and the City hereby consents to, any transfer of this Agreement with respect to all or any portion of
the Property to:
a. Any business entities such as limited partnerships, limited liability
companies, joint ventures or other similar entities formed for the purpose of performing Owner's
obligations under this Agreement, provided Owner, Nexus and/or Curtis R. Olson retains operational
and managerial control of any such entity.
b. Nexus and/or Curtis R Olson or any Affiliate.
c. One or more Mortgagees.
d. Integral or any Affiliate thereof with respect to the Integral Project or
any single purpose entity created by Integral, or any Affiliate thereof, formed for the purpose of
constructing the Integral Project.
e. DF#1 LLC, David R. Fried, and/or A&D Properties, and/or any
company or corporation more than fifty percent (50%) owned by DF#1 LLC, David R. Fried and/or
A&D Properties.
f. Buyer's of Residential Units.
g. Owners' Association(s) with respect to common areas.
h. Tenants, ground lessees and/or purchasers of the retail and/or office
spaces.
4.4 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the same
manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term
"Agreement" or "Development Agreement" as used herein shall include any amendment properly
approved and executed.
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4.5 Hold Harmless. Owner agrees to and shall hold City, its officers, agents,
employees, consultants, special counsel, and representatives harmless from liability for damages,
restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from construction
activities with respect to the Project by the Owner or their contractors, subcontractors, agents,
employees, or other persons acting on their behalf; the Owner further agrees to provide a defense on
behalf of the City, including fees and costs for special counsel to be selected by the City and
approved by the Owner, regarding any Litigation. Notwithstanding the above, in the event of any
Litigation the parties hereby agree to affirmatively cooperate in defending said action.
4.6 Binding Effect of Agreement. The burdens of the Agreement bind, and the
benefits of the Agreement inure, to the parties' successors in interest.
4.7 Relationship of the Parties. The contractual relationship between City and
Owner ansmg out of the Agreement is one of independent contractor and not agency. This
Agreement does not create any third party beneficiary rights.
4.8 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
Ifto Owner, to:
Cory W. Alder
President, Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
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and
Matt Kaufman
Senior Vice President, Development and Operations Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
and
Thomas P. Clark, Jr., Esq.
Stradling Y occa Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
telefacsimile (949) 725-4100
and
R. Michael Joyce, Esq.
Allen Matins Leck Gamble & Mallory LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
telefacsimile (949) 553-8354
A party may change its address by giving notice in wntmg 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 te1efacsimile, 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 Owner Obligations. In consideration for the City entering into this
Agreement and performing its obligations hereunder and in order to effectuate the premises, purposes
and intentions set forth in this Agreement and the Development Agreement Act, Owner hereby
agrees to the following obligations.
5.1.1 Cooperative Agreement. The Owner and the City, together with
other parties, have concurrently executed the Cooperative Agreement. Owner agrees to comply in all
respects with its obligations under said Cooperative Agreement.
5.1.2 Public Improvements. Owner shall construct the Public
Improvements prior to the issuance of a Certificate of Occupancy for the first Element unless
otherwise approved by the Director of Public Works.
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5.1.3 Phasing. The Owner acknowledges and agrees that the
Commencement of Construction of the Integral Project cannot commence until the Commencement
of Construction has occurred on either of the Lake Towers or the Cinema Tower.
5.1.4 FAA Approval. Owner shall obtain and maintain, during the term of
this 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 a building permit for
either of the Lake Towers and/or Cinema Tower, the City shall have the right to delay the issuance of
building permits for either of the Lake Towers and/or Cinema Tower until such approvals are
reinstated or reapproved.
5.1.5 Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute the Avigation Easement in favor of the City. Owner and City
may make non-substantive alterations in the A vigation Easement prior to its execution, to the extent
such changes are approved by Owner and City (as to content by the City Manager, and as to form by
the City Attorney).
5.1.6 Limit on Fast Food and Take Out Restaurants. At no time during
the Term shall the Project include retail space which is 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 provides sit-down dining areas and primary table service for ordering and
delivering meals and beverages, and take out service ancillary to such services.
5.1.7 Development, Construction and Completion of Public Art. Owner
shall include within the Project, (i) two (2) gateway entry signs ("Signs"), and (ii) a single or grouped
permanent work(s) of public art ("Work(s) of Public Art") consistent with the Public Art Plan
(collectivelv referred to herein as the "Public Art") at a cost not to exceed Five Hundred Thousand
Dollars ($500,000) ("Public Art Fee").
5.1.8 Inclusionary Housing Fee. Owner shall pay to the City the sum of
Three Thousand Dollars ($3,000) for each Residential Unit contained in each Element ("Inclusionary
Housing Fee"). The Inclusionary Housing Fee shall be paid with respect to each Element containing
Residential Units at such time as 75% of the Residential Units within such Element have received
Utility Releases. The Inclusionary Housing 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.
5.1.9 In-Lieu Park Development Fee. The Owner shall pay an in-lieu
park development fee in the amount of Two Million Six Hundred Thousand Dollars ($2,600,000)
with respect to the Residential Units within the Project ("In-Lieu Park Development Fee") payable
for each Element in which Residential Units are located at such time as 75% of the Residential Units
within such Element have received Utility Releases, based on a fraction the numerator of which is the
total number of Residential Units in an Element and the denominator of which is the total number of
Residential Units in the Project.
The City shall use not more than twenty five percent (25%) of the In-lieu Park
Development Fee for the acquisition of the land for parks and the construction of capital
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improvements and deferred maintenance at existing parks at any location within the City and not less
than seventy five percent (75%) ofthe In Lieu Park Development Fee 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 a special tax district, benefit assessment district or other obligation is created for park
purposes, inclusionary housing purposes and/or to fulfill any obligation under the Cooperative
Agreement such district or other obligation shall not include the Property.
5.1.10 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) To the extent permitted by law, no more than four residents
shall occupy a Residential Unit with less than three (3) bedrooms and no more than five (5) residents
shall occupy a Residential Unit with three (3) bedrooms.
(2) No home occupancy shall be permitted in a unit, except in
accordance with Section 41-192 et seq. of the Santa Ana Municipal Code.
(3) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC&R's in the event of damage.
(4) Patios and balconies shall not be utilized for the storage of
household items, except (A) furniture designed for outdoor use, (B) barbecues, and (C) plants
including plant racks and stands.
(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, John Wayne (SNA) Airport, and surrounding property zoned
and/or devoted to high density residential and commercial use), and shall provide a release of claims
against the City by the buyer of each Residential Unit which may arise from or relate to the disclosed
matters.
(6) Terms and Content:
i. CC&R's are to be in effect for an initial period of
ninety-nine years and then automatically expanded for successive one hundred year periods unless
terminated by the joint consent of the City and not less than seventy five percent of those entitled to
vote.
ii. Any proposed material modifications to the CC&R's
which effect the City's interests will require approval by the Executive Director of Planning and
Building Safety Agency.
5.1.11 Parking Structure Easement. Owner shall assign any and all rights
it has to use the "Teacher's" parking structure located on Assessor's Parcel Number 411-081-22,
together with any transfer or assignment of the Restaurant Portion.
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5.1.12 Lake Improvements. Owner shall use commercially reasonable
efforts to obtain approval of the Hutton Centre Owners' Association to install the lake improvements
specified in Exhibit F to this Agreement.
5.1.13 Use of "City of Santa Ana." All advertising, stationary and other
identification of the Project controlled by Owner shall identify it as being located in the "City of
Santa Ana" or "Santa Ana." The postal address of the project shall at all times be denominated as
"Santa Ana, California."
5.1.14 Compliance With Governmental Requirements. Owner shall carry
out the design and construction of the Project in substantial conformity with the Applicable Rules
and all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the
United States, the State of California, the County of Orange, 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, 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").
5.1.15 Obligation to Submit Working Drawings and Commence
Construction. Owner shall submit building permit applications for the first Element of the Project
to the City's Building Department on or before the third (3rd) anniversary date of the Effective Date
and Commencement of Construction of the first phase Element shall occur on or before the sixth (6th)
anniversary date of the Effective Date.
5.2 City Obligations. In consideration for Owner entering into this Agreement
and performing its obligations hereunder and in order to effectuate the purposes and intentions set
forth in this Agreement and the Development Agreement Act, the City hereby agrees during the
Term as follows:
5.2.1 Vested Rights to Develop. Owner is hereby granted the vested right
to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved
Powers.
5.2.2 Non-application of Changes in Applicable Rules. Any change in,
or addition to, the Applicable Rules, including, without limitation, any change in the General Plan,
zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after
the Effective Date, including, without limitation, any such change by means of ordinance, initiative,
referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason
whatsoever, however denominated, and adopted by the City Council, Planning Commission or any
City Agency, or by the electorate, as the case may be, which would, absent this Agreement,
otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not
be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or
are otherwise expressly allowed by this Agreement. In the event that state or federal laws or
regulations enacted after this Agreement has been entered into, prevent or preclude compliance with
one or more provisions of this Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations.
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DOCSOC/II10339vl1/24579-0001
5.2.3 Special Taxes and Assessments. Owner shall have the right, to the
extent permitted by law to protest, oppose and vote against any and all special taxes, assessments,
levies, charges and/or fees imposed with respect to any assessment districts, Mello-Roos or
community facilities districts, maintenance districts or other similar districts.
5.2.4 Agreed Changes and Other Reserved Powers. This Agreement
shall not preclude application to the Project of rules, regulations, ordinances and officially adopted
plans and policies in conflict with the Applicable Rules where such additional rules, regulations,
ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner
and the City in accordance with the requirements of Section 6.7 of this Agreement or (b) result from
the Reserved Powers.
5.2.5 Subsequent Development Approvals. The City shall require Owner
to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or
the Reserved Powers. City hereby agrees that it shall condition any Subsequent Development
Approvals based only on the Applicable Rules and/or Reserved Powers.
5.2.6 Moratoria. In the event an ordinance, resolution or other measure is
enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount,
timing, sequencing, or phasing of the development or construction of the Project on all or any part of
the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or
other measure shall not apply to the Project, Property or this Agreement, unless such changes are
adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision, of this
Agreement.
5.2.7 Timing of Development. The parties acknowledge that Owner
cannot at this time predict when or if the Property will be developed. Such decisions depend upon
numerous factors which are not within the control of Owner such as market orientation and demand,
interest rates, absorption, completion and other similar factors. Because the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of
the parties therein to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over such parties' agreement, it is the parties' intent
to cure that deficiency by acknowledging and providing that except as provided in Section 5.1.3, and
subj ect to Section 5.1.15, Owner shall have the right to develop the Property at such rate and at such
time as Owner deems appropriate within the exercise of its subjective business judgment.
5.2.8 Development Impact Fees. Except as to increases permitted under
Section 2.l7(c), Development Impact Fees imposed by the City with respect to the Project shall be
only those Development Impact Fees in force and effect as of the Effective Date.
5.3 Cooperative Agreement. The City shall comply in all respects with its
obligations under the Cooperative Agreement.
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 ("Periodic Review"). Pursuant to Government Code
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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 by Owner. Owner is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by 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 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 substantially comply with Governmental Requirements;
(4) The failure of Owner to comply with the requirements of Section 5.1
hereof.
(5) Any other event, condition, act or omISSIOn of Owner which
materially interferes with the intent and objectives of this Agreement.
7.1.2 Events of Default by City. City is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by City to the Owner in conjunction with the Project is false or proves to have been false in any
material respect when it was made;
(2) Failure of the City to comply with the provisions of Section 5.2.
hereof.
(3) Any other event, condition, act or omission of City Agency which
materially interferes with the intent and objective of this Agreement, including, without limitation,
the construction of the Project.
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7.2 Procedure upon Breach. Upon the occurrence of any of the events
described in Sections 7.1 and/or 7.1.2,and prior to termination (a "Breach"), the non-defaulting party
shall give the defaulting party written notice specifying the nature of the alleged Breach and, when
appropriate, the manner in which said Breach may be satisfactorily cured ("Notice"). If the
defaulting party fails to cure within thirty (30) days after receipt of Notice ("Notice Period"), or in a
case where a Breach cannot be reasonably cured within such Notice Period, fails to commence such
cure within the Notice Period and/or, thereafter, fails to diligently pursue such cure to completion
then the defaulting, party is in "Default". Failure or delay in giving Notice shall not constitute a
waiver of any Breach, nor shall it change the time of Default.
7.3 Termination. This Agreement may be terminated by either party in the event
of Default by the other. Owner's obligation to pay the fees set forth in Sections 5.17, 5.18 and 5.19
of this Agreement shall survive termination, if termination is due to Owner's Default.
7.4 Damages and Remedies.
(1) In no event shall either party be entitled to any damages against the
other upon termination of this Agreement in the absence of a Default.
(2) The Owner shall not be liable for any general, special or
compensatory damages to City or the Owner's Default hereunder; provided however Owner shall be
responsible for any Default under Sections 5.1.7,5.1.8 and/or 5.1.9 but only to the extent of the fees
set forth therein, without penalty, but including interest from the date such fees were due until paid at
the same rate of interest imposed by the Orange County Superior Court as post-judgment interest.
(3) The City shall not be liable for any general, special or compensatory
damages to Owner or to any successor or assignee or transferee of Owner for the City's Default
hereunder.
(4) In the event of the failure of the obligation described ill
Section 5.1.15, the City's sole remedy shall be termination.
7.5 Institution of Legal Action. In addition to any other rights or remedies, and
except as provided in Section 7.4, either party may institute legal action to cure, correct, or remedy
any Default, terminate or confirm or reject the propriety of a termination, specifically enforce any
covenants or agreements set forth in the Agreement, or enjoin any threatened or attempted violation
of the Agreement; or to obtain any remedies consistent with the purpose and term of the Agreement.
Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or
in the Federal District Court in the Central District of California, Southern Division.
7.6 Multiple Owners. Because the Project may be developed by Owner or by
one or more assignees of Owner, the Parties acknowledge and agree that the provisions of this
Section 7 relating to any Default by Owner with respect to its obligations, and the City's enforcement
rights with respect thereto, including any rights of termination and the limited rights to seek damages,
shall relate only to the portion of the Property actually owned by the specific Owner whose act or
omission constituted such Default. Other portions of the Property owned by a different non-
defaulting Owner (provided such non-defaulting Owner is not in Default hereunder with respect to its
Property) and/or any other permitted assignee provided such permitted assignee(s) are not in Default
hereunder with respect to its/their Property shall not be affected nor shall the rights of such non-
16
DOCSOC/II10339vll/24579-0001
defaulting Owner or other assignee(s) hereunder be impaired by any such Default relating to the
portion of the Property not owned by it.
7.7 Alternative Dispute Resolution. Owner may elect in its sole and absolute
discretion, to have any legal disputes described herein determined by arbitration in Santa Ana,
California, before a sole arbitrator in accordance with the laws of the State of California. The
arbitration shall be administered by JAMS pursuant to its Streamline Arbitration Rules and
Procedures. Judgment on the "award", as defined in Code of Civil Procedure Section 1283.4, may be
entered in any court having jurisdiction. Each party shall bear its own costs.
ARBITRATION NOTICE: BY INITIALING IN THE SPACE BELOW EACH PARTY IS
AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF
OR RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL BINDING
ARBITRATION, AND EACH PARTY IS GIVING UP ANY RIGHTS EACH SUCH PARTY
MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR WRY TRIAL.
BY INITIALING IN THE SPACE BELOW EACH PARTY IS GIVING UP ITS WDICIAL RIGHT
TO DISCOVERY AND APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE
COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. THE PAR TIES
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
EACH PARTY HAS READ AND UNDERSTANDS THE FOREGOING AND AGREES TO
SUBMISSION OF ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR
RELATING TO THIS AGREEMENT TO NEUTRAL BINDING ARBITRATION IN ACCORDANCE
WITH THIS AG~NT.
Owner
City
The "award" shall be made by the arbitrator within sixty (60) days after the matter has been
submitted to arbitration.
Prior to the appointment of the arbitrator and within ten (10) days of the date of
commencement of the arbitration the parties shall submit the dispute to JAMS for mediation. The
parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of
neutrals, and then promptly scheduling the mediation proceedings. The parties covenant that they
will participate in the mediation in good faith, and that they will share equally in its costs. All offers,
promises, conduct and statements, whether oral or written, made in the course of the mediation by
any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS
employees are confidential, privileged and inadmissible for any purpose, including impeachment, in
any arbitration or other proceeding involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its
use in the mediation. If the dispute is not resolved within thirty (30) days from the date of the
submission of the dispute to mediation (or such later date as the parties may mutually agree in
writing) the administration of the arbitration shall proceed forthwith while the mediation may
continue, if the parties so agree. Unless otherwise agreed by the parties, the mediator shall be
disqualified from serving as arbitrator in the case. Pendency of the mediation shall not preclude a
party from seeking provisional remedies in aid of the arbitration from a court of appropriate
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jurisdiction, and the parties agree not defend against any application for provision relief on the
ground that a mediation is pending.
7.8 Interim Relief. In the event that Project, or any part, is delayed as a result of
any action under Section 7.5 and/or Section 7.7, Owner's obligation to pay fees under Sections 5.1.7,
5.1.8 and/or 5.1.9 shall be suspended until such action is resolved in favor of continuing the Project.
7.9 Entitlements Survive Termination. The parties acknowledge that the
Entitlements survive termination of this Agreement unless and until the City takes action, within its
police power authority to modify and/or revoke all or any portion of such Entitlements, or unless and
until termination of the Entitlements occurs automatically, if ever. Accordingly, if this Agreement is
terminated and, provided that the Entitlements are not modified or revoked in accordance with the
City police power, the City shall not collect and/or impose the fees set forth in Sections 5.1.7, 5.1.8
and/or 5.1.9 in connection with development pursuant to the Entitlements.
7.10 Miscellaneous.
(1) City does not waive any claim of defect in performance by Owner, if
on Periodic Review the City does not propose to modify or terminate this Agreement.
(2) Non-performance shall not be excused because of a failure of a third
person.
(3) Adoption of a law or other governmental activity making
performance by either party unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the other party.
8. MORTGAGEE PROTECTIONS
8.1 Right to OwnerlNoticelMultiple Mortgagees. Owner shall have the
absolute right to encumber Owner's right, title and interest in, to and under this Agreement and the
Property pursuant to one or more Mortgages. Because certain portions of the Project may be
developed by one or more assignees, the Parties acknowledge and agree that different Mortgages
may encumber the Property and that there may be a separate Mortgage in effect with respect to
separate parcels within the Property. It is the intention of the Parties that the rights and protections
granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such
Mortgagee's Mortgage is a lien (each a "Mortgage Parcel"), and to the rights, privileges and
obligations under this Agreement relating to such Mortgage Parcel.
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure.
With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the
City delivers any Notice or demand to Owner with respect to any Breach by Owner under this
Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall
deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect
that Owner has failed to cure a Breach ("Mortgagee Notice"); provided that Owner or Mortgagee has
provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights
granted by the City are concerned) have the right, at its option, within thirty (30) days after the
receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the
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mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented
from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall
be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Agreement shall
be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or
any portion thereof, without first having expressly assumed Owner's obligations to the City by
written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be
deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or
remedy a Owner default which requires title and/or possession of the Site (or portion thereof) if and
to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to
obtain title and/or possession and thereafter the Mortgagee diligently pursues such proceedings to
completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults
shall be waived.
8.3 Mortgagee Not Obligated Under the Agreement. Unless a Mortgagee
expressly assumes Owner's Obligations to the City in accordance with 8.2 above, no Mortgagee shall
in any way be obligated by the provisions of this Agreement, nor shall any covenant or any other
provision in this Agreement be construed so to obligate such Mortgagee. Nothing in this Agreement
shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel
to any uses or to construct any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
8.4 No Liability. No Mortgagee shall have any personal liability beyond its
interest in the Mortgage Parcel acquired by it through enforcement of its Mortgage for the
performance or payment of any covenant, liability, warranty or obligation hereunder, and the City
agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for
payment or discharge of any such covenant, liability, warranty or obligation.
8.5 No Amendment or Termination. This Agreement shall not, without the
prior written consent of all Mortgagees holding Mortgages on each portion of the Property to be
affected thereby, be amended so as to (a) terminate this Agreement prior to the expiration of the
Term hereof (except as provided in Section 8.4 above with respect to such Property); or (b) change
any provision of this Agreement which, by its terms is specifically for the benefit of Mortgagees or
specifically confers rights on Mortgagees. No amendment to this Agreement affecting the Property
or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such
Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest
should it become a party hereto. '
8.6 Condemnation or Insurance Proceeds. Nothing in this Agreement shall
impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and/or
condemnation proceeds which are otherwise payable to Owner granting such Mortgage.
8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the
provisions contained in this Agreement applicable to any of the Mortgage Parcel shall be binding on
and for the benefit of any person who acquires title to the property, or any part thereof, by
foreclosure under a Mortgage or transfer by deed in lieu.
8.8 Delegation to Mortgagee. Owner may delegate and/or assign irrevocably to
any Mortgagee the non-exclusive authority to exercise any or all of Owner's obligations and/or rights
hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City
19
DOCSOC/1] 10339v] 1/24579-000]
unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a
written instrument effecting such delegation. Such delegation of authority may be effected by the
terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or
conformed copy of said Mortgage, together with written notice specifying the provisions therein
which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice
of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage
Parcel of any of its obligations hereunder with respect to such Mortgage Parcel.
8.9 No Obligation to Cure. Nothing herein contained shall reqUire any
Mortgagee to cure any default of Owner referred to above.
8.10 Separate Agreement. The City shall, upon request, execute, acknowledge
and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense
of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees,
agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs
incurred by City in reviewing same.
8.11 Estoppel Certificate. Within thirty (30) days after written request therefore,
the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage
and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance
satisfactory to Owner and such Mortgagee ("Estoppel Certificate"). The City hereby agrees to
reasonably cooperate in including in any such Estoppel Certificate from time to time any provision
which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the
Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable
means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the
non-applicability of the provisions of this Agreement to such Mortgagee as it relates to parcels other
than the Mortgage Parcel, and/or such other terms and provisions as are customarily required by
Mortgagees (taking into account the customary requirements of their participants, syndication
partners or ratings agencies) in connection with any such financing; provided, however, that no such
Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase
any obligations of City under this Agreement.
8.12 Conflicts. If there is any conflict between this Section 8 and any other
provision contained in this Agreement, this Section 8 shall control
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
20
DOCSOCIlII 0339v 11/24579-000 1
of Orange County, California. Upon the completion of performance of this Agreement with respect
to the completion of construction of each Element 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. Unless another standard is specifically given, 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.
9.10 Enforced Delay; Extension of Time of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be deemed to
be in Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to Litigation; inability to secure necessary labor materials or tools;
or inability to secure debt and/or equity financing on commercially reasonable terms or withdrawal
21
DOCSOC/1110339vl1/24579-0001
of such financing not caused by any act or omission of Owner; war; insurrection; strikes; lockouts;
riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; building moratoria; unusually severe weather; acts or omissions of the other
party; acts or failures to act of any other public or governmental agency or entity (other than the acts
or failures to act of the City which shall not excuse performance by the City); or any other causes
beyond the control or without the fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause
shall be for the period reasonably attributable to the enforced delay and shall commence to run from
the time of the commencement of the cause. Times of performance under this Agreement may also
be extended in writing by the mutual agreement of the Parties.
9.11 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.
9.12 Subdivision of Project. The City agrees that, pursuant to the Applicable
Rules, Owner may modify the boundaries of existing lots of the Property within the Property by
means of lot line adjustments. This Section 9.12 shall survive termination of this Agreement.
9.13 Severability. If any provisions, conditions, or covenants of this Agreement,
or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable,
the remainder of this Agreement or the application of such provision, condition, or covenant to
persons or circumstances other than those as to whom or which it is held invalid or unenforceable
shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
9.14 Waiver. No waiver of any provision of this Agreement shall be effective
unless in writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and such waiver refers expressly to this Section. No waiver of any
right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or
remedy in respect of any other occurrence or event.
9.15 No Personal Liability. No board member, councilmember, official or
employee of the City shall be personally liable to Owner nor shall any individual, principal, partner,
member or shareholder of Owner be personally liable to City in the event of any default or breach.
9.16 Conditions of Discretionary Approvals. Entitlements shall be governed by
the terms of the approvals of such Entitlements and, in no event, shall such Entitlements be affected
by the termination, rescission, revocation, Default or expiration of this Agreement.
9.17 Precedence. In the event of a conflict between the terms of this Agreement
and the terms of the Entitlements, the terms of this Agreement shall prevail.
22
DOCSOClll10339vl1/24579-0001
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner. ff (1.JIM~
Dated this :)/ day ottJ-=4-' 200 $"
THECITYO~
By ~~
DAVID N. REAM
City Manager
Approved as to Form:
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A californial:ited Liability Company
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PA TRJ'CIA E.. HeAL Y
CLERK OF fhll (:OUNCIL
THE GRAND PLAN 2, LLC
A California I,-imited Liability Company
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Its fv\lm\o1K
23
DOCSOC/l 1 I0339vll/24579-0001
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange } SS.
On July 21,2005, before me,
Claudia M. Fernandez-Shaw, Notary Public,
Name and Title of Officer (e.g., "lane Doe, Notary Public")
personally appeared David N. Ream
,-- - - - -
~ - -- ~..-. ."
~ CLAUDIA M. FERNAI'lL/CZ-":liANl'
~ .. ' Commission' 1336674 f
2: .- Notary P'jbllc - CaiiForr.ia ~
Ordnge County '..
MyComm. Expires Jan 25.2006
Name(s) OfSig~
LJ personally known to me
D proved to me on the basis of satisfactory
evidence
to be the personcs5 whose name{sj~
subscribed to the within instrument and
acknowledged to me that-llelshc/thcy executed
the same in lWlherftlreir authorized
capacity(ies}; and that by ~her/their
signature(s}-on the instrument the perso~ or
the entity upon behalf of which the perso~
acted, executed the instrument.
(7ESS~
~
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
And could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner -- D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
RIGIIT rIllJMBPRIN r ;g,
OF SIGNER ~
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Ilcda.chluserslCShawlDesktoplGeneral NotaryForm.doc
. .
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 ? () ;-h day of J (/ n <... , 200 r before me,
M.~(W ~. JI,p, u f~l), a Notary Public in and for said state, personally appeared
C"^ {' +-.. s (L. 0 l.sc>"" , personally known to me (or proved to me on the basis of
satisfactS)fy evidence) to be the In am be ,- of ,.,- k (;..ra h d f/ It:( n 1/ t..LC:, the
e.n 171-~ that executed the within instrument, known to me to be the person who
executed e wIthm mstrument 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.
.MATTHEW B. KAU
. . COMM. , 1365970
NOTMYPWUCe ~
. ORANGE COUNTY
. Camm. .... .... y 22, ....
STATE OF CALIFORNIA )
) ss.
)
On this '3 () -fh day of J V n .e.. , 200~ before me,
(Vlc...ij-htw ~. ~ V -",.,,.,, a Notary Public in and for said state, personally appeared
CA.(-h 'So ol~oV") , personally known to me (or proved to me on the basis of
satisfact,ory evidence) to be the ~t11k/' of --rlt.t. GruncJ p/t:tn 2,W" the
er1..J-, f::J that executed the within instrument, known to me to be the person who
/?,1/~~
NOTARY PUBLIC
COUNTY OF ORANGE
DOCSOC/III0339vl1124579-0001
24
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.
;;::~~
8. MATTHEW 8. KAUF
COMM. , 1385870
NOrMY PUaJC. CM.IPOMIA
ORANGE COUNTY
Canm .... JUly 22 2llOII
25
DOCSOC/III0339vll/24579-0001
EXHIBIT A
PROPERTY DESCRIPTION
OWNER PARCEL
PARCELS 1,2,3 & 5 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 262,
PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY
THAT PORTION OF FRACTIONAL SECTION 31, IN TOWNSHIP 5 SOUTH, RANGE 9 WEST,
BEING A PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN, IN THE FINAL
DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN
CASE NO. 1192, ENTERED SEPTEMBER 12, 1868 IN BOOK B, PAGE 410 OF JUDGEMENTS
OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET
WIDE, SAID CENTER LINE BEING THE WESTERLY LINE OF SAID SECTION 31, SAID
POINT BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM THE
INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT
AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7, RECORD
OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY;
THENCE ALONG COURSES 1, 2 AND 3 DESCRIBED IN A FINAL ORDER OF
CONDEMNATION, A COPY OF WHICH WAS RECORDED APRIL 9,1964 IN BOOK 6998,
PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE FOLLOWING COURSES
AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET; NORTH 46 DEG. 28' 17" EAST,
35.36 FEET; SOUTH 88 DEG. 31' 41" EAST, 127.00 FEET TO THE INTERSECTION WITH A
LINE THAT IS PARALLEL WITH AND 202.00 FEET EASTERLY, MEASURED AT RIGHT
ANGLES FROM SAID CENTER LINE OF MAIN STREET; THENCE SOUTH 1 DEG. 28' 19"
WEST, ALONG SAID PARALLEL LINE 160.00 FEET; THENCE NORTH 88 DEG.31' 41"
WEST, AT RIGHT ANGLES TO SAID CENTER LINE, 202.00 FEET TO SAID CENTER LINE;
THENCE NORTH 1 DEG.28' 19" EAST, ALONG SAID CENTER LINE, 135.00 FEET, MORE
OR LESS, TO THE POINT OF BEGINNING.
PARCEL 1 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT NO.
01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA,
RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF OFFICIAL
RECORDS.
FRIED PARCEL
PARCEL 2 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE
ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO.
20010566652, OF OFFICIAL RECORDS.
A-I
DOCSOClll10339vl1!24579-0001
EXHIBIT B
PUBLIC ART PLAN
1. The Work(s) of Public Art shall be designed, constructed and installed by the Owner;
provided however, that the Signs shall be designed by the City at its sole expense.
2. A Final Design Plan consistent herewith, which proposes specific Work(s) of Public Art for
specific locations and/or applications, shall be submitted to the City's Planning Commission
within thirty sixty five (365) days from the issuance of the first building permit for the
Project. Owner shall install the Public Art not later than the issuance by the City of the first
certificate of occupancy for any Element.
3. 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.
4. The Public Art should be constructed using durable materials and finishes including but not
limited to stone or metal.
5. The Work(s) of Public Art should be comprised ofa single or grouped permanent work(s) at
a prime location visable to the public and sited to complement features such as plaza or
architectural components so that the Public Art is an integral part of the development site.
6. No Public Art shall include advertising of any type, including but not limited to products,
services or businesses.
7. All Public Art shall be properly maintained at all times, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
8. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public
Work(s) of Art to one or more Owners' Association(s). The City shall be solely responsible
for maintaining the Signs.
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses not included in the Public Art Fee.
1. Expenses to locate the artistes) (e.g., airfare for artist interviews, etc.)
11. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
111. Landscaping around Public Work(s) of Art 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.
tv. Utility fees associated with activating electronic or water generated artwork.
B-1
DOCSOC/111 0339v 11/24579-000 1
V. Lighting elements not integral to the illumination of the Public Work(s) of Art.
VI. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
Vll. Dedication ceremonies, including sculpture unveilings or grand openings.
EReept as provided in this Pai"agraph 10, all other eosts iRel:HTea by Owner in conneetioR with
the Public .L\rt shall be oredited agaiRst the Public f~rt Fee.
11. All molds, dies, or other patterns used in constructing the t\'/O (2) gateway 6Rtry s~igns,
together with all plans, shall be property of the City.
B-2
DOCSOC/1110339vl1/24579-0001
A-2005-169
COOPERATIVE AGREEMENT FOR
OFF-SITE IMPROVEMENTS
THIS Agreement is entered into this 1f1't- day of Afri\ I , 2005, by and between
the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public
benefit and federal 501 (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 comer 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
~XH'BIT C
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 hereof by this reference ("hnprovements").
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 offunding
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 hnprovements").
1. Geneva Commons has agreed to pay for a portion of the Nexus hnprovements.
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
hnprovements" 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 hnprovements.
B. In consideration for Nexus' agreement to construct and/or fund the Nexus
hnprovement, 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 hnprovements,
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 o[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 hnprovements" 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. COMPENSATION AND METHOD OF PAYMENT
A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow
account at First American Title Insurance Company, 2 First American Way, Santa Ana, California,
or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for
deposit of funds to be used to pay for the Nexus Improvements (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 g<?od 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 [lIst 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
hnprovements 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 docmnents 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 docmnents receiving City approval shall not
be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related
docmnents comply with all Governmental Requirements.
5. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS
IMPROVEMENTS
a. Nexus shall construct and/or fimd, 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 fimds in the Nexus Escrow, Nexus and Geneva Commons
shall be solely responsible for said costs, with each responsible for any additional cost to the same
percentage as is set forth in paragraph I.B. of this Agreement. Nexus shall complete or fimd, 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.1 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 nllnimize
any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its
officers, directors, employees and agents harmless from any claim by any and all property owners
including such hold outs arising out of the construction 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 ofSandpointe.
')
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
~~hedule 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 fayade 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 harmless from and against all damages to property or injuries to or death of any person or
persons, including employees or agents of Agency or City, and shall defend, indemnify and save
()
Agency, City and Sandpointe, and their officers, agents, and employees, from any and all claims,
demands, suits, actions, or proceedings of any kind or nature, including, but not by way of limitation,
workers' compensation claims of or by anyone whomsoever, in any way resulting from the negligent
or wrongful acts or omissions of Nexus or Geneva Commons or their respective employees, agents
or subcontractors. For itself and no other, Sandpointe agrees to hold harmless Agency, City and
their respective officers, directors, agents and employees from and against all damages to property or
injuries to or death of any person or persons, in any way resulting from the negligent or wrongful
acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or
subcontractors. Ibis 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 ofIiability
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
thereofhas 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 hnprovements 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.
~ 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.
11. INSTITUTION OF LEGAL ACTIONS
Subject to the provisions of Section 13 hereof, in addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any default to recover damages for any
default, or to obtain any other remedy consistent with the purpose of this Agreement.
12. APPLICABLE LAW
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed and construed in accordance with the laws of the State of California.
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. All parties further agree that Orange
County, California, shall be the venue for any action or proceeding that may be brought or arise out
of, in connection with or by reason 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
Attn: Steve Harding, Executive Director
Phone: (714) 667-2700 .
Fax: (714) 973-1461
with copy to:
City Attorney
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Agency:
Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M-25
Santa Ana, CA 92702
Attn: Patricia C. Whitaker, Executive Director
Phone: (714) 647-5360
Fax: (714) 647-6549
with copy to:
Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza, M-29
Santa Ana, California 92702
9
Sandpointe:
Sandpointe Neighborhood Association, Inc.
P.O. Box 27122
Santa Ana, California 92799
Attention: Bob Black
Nexus:
Nexus Development Corporation/Central Division, Inc.
The Grand Plan 2
1 MacArthur Place, Suite 300
Santa Ana, California 92707
Attention: Cory W. Alder
Geneva Commons:
Coastal RUn Properties, Inc.
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
A party may change its address by giving notice in writing to the other parties. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be
effective or deemed to have been given three (3) days after it has been deposited in the United States
mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by
facsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed
to have been given twenty-four (24) hours after the time set forth on the transmission report issued
by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating
these time 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 hnprovements and Publicly-Owned hnprovements. 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 hnprovements specified in Exhibit A as a guide, designate which of the Nexus hnprovements
shall be constructed using Geneva Commons twenty-five percent (25%) share of the estimated cost
of the total Nexus hnprovements, 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 Cormnons is not, then Nexus, the Agency and Sandpointe shall meet and confer in good
faith, and using the order of the Nexus hnprovements specified in Exhibit A as a guide, designate
which of the Nexus hnprovements shall be constructed using Nexus seventy-five percent (75%)
share of the estimated cost of the total Nexus hnprovements.
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 date ninety (90) days after the
issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The
Commencement Date shall be tolled should a valid referendum petition be presented challenging
either project, or timely litigation be filed and served challenging any of the entitlements, including
approval pursuant to the California Environmental Quality Act.
18. INTEGRATION
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto,
and supersedes all negotiations or previous agreement between the parties with respect to all or
any the matters addressed herein. All waivers ofthe 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, INC.
BY~
Name
Its r hA il<.JJ1AttJ
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, 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
~l2"~
12
ATTEST:
w~~ ~
PatriCia E. Healy ~
Clerk of the Council
THE GRAND PLAN 2, LLC
By
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INe.
By
Name
Its
4~
THE CITY OF SANTA ANA
By DaTId[jfha-
City Manager
n
-
ATTEST:
~lc.Q - -t:~~
Patricia E. Healy
Clerk of the Council
APPROVED AS TO FORM:
THE GRAND PLAN 2, LLC
By
4 Q<>j...~
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INC.
By
Name
Its
THE CITY OF SANTA ANA
By
ad;tL-
David N. Ream
City Manager
1:1
ATTEST:
~~
J A~atricia E. Healy
C5 Secretary of Agency
APPROVED AS TO FORM:
COMMUNITY REDEVELOPMENT AGENCY
OF THE C OF SANTA ANA
By
r
Pa ricia C. Whitaker
Executive Director
14
EXHIBIT A
OFF-SITE IMPROVEMENTS
Nexus Improvements
1. Block Wall
a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy
b. North side of Sunflower between Main & alley adjacent to four plexes, excluding
sections of wall at comer of Main & Sunflower at rear of commercial building
c. Plaster and paint with one color selected by Association
d. $3,000 per house payment for repair/replacement of landscaping 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. l.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
1')
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 $200,000 for City to implement a Neighborhood Traffic Management
Plan ("NTMP") to mitigate changes in traffic patterns or increased cut through
traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe
Neighborhood. NTMP costs shall include traffic studies, staff time to process
neighborhood traffic plan, and the construction of appropriate traffic calming
devices, including but not limited to semi-diverters, diagonal diverters, and street
closures. The implementation of the NTMP shall be pursuant to procedures
adopted by the City Council.
5. Nexus shall pay the City the full cost (see Exhibit B) for the installation of a
Traffic Signal at the intersection of MacArthur Boulevard and Birch Street.
PnhlicJy-Ownerl Improvements
I Utility Undergrounding
a. Main Street - MacArthur to Sunflower
b. MacArthur - Main to Flower
c. Sunflower - Main to Flower (north side of street)
]()
Single Family Homes:
. L 101 W. Murphy
2. 3701 S. Alder
3. 3705 S. Alder
4. 3709 S. Alder
5. 3713 S. Alder
6. 3717 S. Alder
7. 3721 S. Alder
8. 3725 S. Alder
9. 3729 S. Alder
10. 3801 S. Alder
11. 3805 S. Alder
12. 3809 S. Alder
13. 3813 S. Alder
14. 3817 S. AIdE:!'
15. 3821 S. Alder
16. 3825 S. Alder
17. 3829 S. Alder
18. 3901 S. Alder
19. 3905 S. Alder
20. 3909 S. Alder
21. 102 W. Stevens
22. 106 W. Steven.~
23. 110 W. SteVens
24. 114 W. SteVens
25. 118 W. Stevens
26. 122 W. Stevens
27. 202 W.Slevens
28. 206 W. SteVens
29. 210 W. Stevens
30. 214 W. Stevens
3 t. 3926 S. Timber
32. 302 W. Stevens
33. 306 W. Stevens
34. 310 W. Stevens
35. 314 W. Smoen.~
36. 318 S. Stevens
37. 3922 S.Birch
FDDllllexcs
38. 392$ S. Ross
39. 401 W. Sunflower
40. 405 W. Sunflower
41. 409 W. Sunflower
42. 501 W. Sunflower
43. 505 W. Sunflower
44. 509 W. Sunflower
45. 513 W. Sunflower
Main Att....~tion Condominiumll
46. 3620 A S. Main
47.3632 A S. MBin
48. 3632 B S. Main
49.3632 C S. Main
EXHIBIT A-I
List of 49 Residential Units
List of Eligible Home., for
Window Replacements
Along Main 1I11d Sunflower
(sides to Main)
(backs to Main)
(hacks to Main)
(backs to Mllin)
(backs to Main)
(backs 10 Main)
(back.~ to Main)
(back! to Main)
(backs to Main)
(backs to Main)
(back.~ 1.0 Main
(backs to Main)
(hac1c:s to Main)
(backs to Main)
(backs to Mtlin)
(bac1c:s to Alder)
(backs to Main)
(becks to Main)
(backs to Main)
(back.'1 to Main)
(backs to Main and MiniMarket)
(bllCks to Main and Mini Market)
(backs to Mai~ and Mini Market)
(backs to Sunflower and Mini Market)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(backs to Sunflower)
(aides to Sunflower)
(backs to S\lnflowcr)
(backs 1.0 SunflowC1)
(back.'1 to Sunflower)
(back9lo SunfJOWl:l')
(backs to SUI)t1o\Vel'}
(baCkS to SunflOwer)
(~idcs to Sunflower)
(fronts Sunflower)
(fronts Sunflower)
(fTonts Sunflower)
(fronts Sunflower)
(&on1.'I Sunflower)
(fronl.1 Sunflower)
(fronts Sunflower)
(sides to Main)
(fi'nnts Main)
(fronts Main)
(fronts Main)
17
EXHIBIT B
SCHEDULE OF NEXUS IMPROVEMENTS
1. Construction ofItem No. 1 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. 1,
above.
b. Construction shall be complete pursuant within one hundred twenty (120) days of
issuance of City Building Permit.
3. Construction ofItem 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 Exhibit A 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 [mal 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 [mal 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 PUBLICLY -OWNED IMPROVEMENTS
1. City shall complete item no. 1.a. on Exhibit A of Publicly-Owned Improvements not later
than June 2005.
2. City shall complete item no. 1.b. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
3. City shall complete item no. 1.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 D
PUBLIC IMPROVEMENTS]
Improvement Location
Street Reconstruction Hutton Centre Drive between Sandpointe
A venue and MacArthur Blvd. Sandpointe
A venue between Main Street & Hutton Centre
Drive Hutton Centre Loop Road between Hutton
Centre Drive to the most easterly driveway on
the north side Eastbound MacArthur Blvd. lanes
between Main Street and Hutton Centre Drive
Construct eastbound right-turn lane MacArthur Blvd. east of Main Street
Provide second northbound right-turn lane Hutton Centre Drive between MacArthur Blvd.
and Hutton Centre Loop Road
New traffic signal Hutton Centre Drive and Hutton Centre Loop
Road
Raised median Hutton Centre Drive from MacArthur Blvd. to
280 feet south of Hutton Centre Loop Road
Raised median Hutton Centre Loop Road to most easterly
driveway on north side
Colored crosswalk Hutton Centre Loop Road east of Hutton Centre
Drive and sidewalk on north side to most
westerly driveway
Street widening to provide fourth eastbound lane MacArthur Blvd. between Hutton Centre Drive
and SR55 southbound on-ramp
Traffic signal modification to provide second MacArthur Blvd. at Hutton Centre Drive
northbound right-turn lane
Raised median Main Street between Sandpointe A venue and
MacArthur Blvd.
Owner shall be obligated to pay prevailing wages in connection with the construction of the Public
Improvements in accordance with the requirements set forth in Attachment No.1, attached hereto and incorporated
herein by reference.
D-l
DOCSOC/1110339vl1/24579-0001
ATTACHMENT NO.1
TO EXHIBIT D
PREVAILING WAGE REQUIREMENT
A. Owner agrees to pay all workers employed in connection with the work to be performed
pursuant to the Agreement, not less than the prevailing rates of wages, as provided in the
statutes applicable to public works contracts of the City of Santa Ana ("Agency"), including
without limitation Sections 1770-1780 of the California Labor Code.
B. Owner shall maintain accurate records showing the name, occupation and actual per diem,
regular, overtime and holiday wages paid to each worker and fringe benefits (as appropriate)
paid to or on behalf of each worker employed in connection with the work to be performed
pursuant to the Agreement, the hours worked by such workers and amounts withheld
pursuant to law. Such records shall be open to inspection by City staff at reasonable hours.
C. Owner shall cooperate with City staff or its consultants in carrying out any investigation of
any claim made by a worker employed by Owner that less than prevailing wages were paid
for work performed pursuant to the Agreement. Owner shall promptly pay any amount
determined by City to be the difference between the applicable prevailing wage for the
number of hours worked by the claimant and the amount actually paid to the claimant.
D. Owner agrees that, if requested by City, funds due to employee under the Agreement may be
withheld pending the completion of any investigation pursuant to Section C hereof to ensure
that the amount of any restitution, which may be required, is available.
E. Owner agrees that, if City determines that Owner has violated any prOViSion of this
attachment/exhibit, funds otherwise due to Owner pursuant to the Agreement may be
withheld, or Owner may be required to post a bond or provide a Letter of Credit or other
security, in an amount sufficient to ensure that workers employed in connection with the
Agreement will receive the prevailing wages for the work to be performed, as determined to
be appropriate by City staff or consultants.
F. In the event that Owner subcontracts with an independent contractor for all or any part of the
work to be performed pursuant to the Agreement, and such subcontractor employs workers to
perform such work:
1. Owner shall assure that such subcontract includes and incorporates this
attachment/exhibit and requires such subcontractor to comply with and be bound by
the provisions hereof as the "Owner" with regard to the workers so employed.
2. In the event any such subcontractor is being investigated by City staff or consultants
pursuant to Section C hereof Owner shall, at the request of City, withhold funds from
such subcontractor prior to the completion of such investigation, to ensure that the
amount of any restitution which may be required is available.
Attachment No. 1-1
to Exhibit D
DOCSOC/1 I 10339vl1/24579-0001
3. In the event that the City staff determines that any such subcontractor has violated the
provisions of this attachment/exhibit, Owner agrees to cooperate with City in
withholding funds from such subcontractor or requiring such subcontractor to post
security, in accordance with Section E hereinabove.
G. In the event of a dispute between Owner and City staff with respect to a City staff
determination, Owner shall have the opportunity to bring the dispute before City Board for
review. The City Council may take such action, as it deems appropriate, including:
I. Affirming the City staff determination.
2. Referring the matter back to City staff for further investigation.
3. Reversing or modifying the City staff determination.
4. Directing the City staff to appoint an independent hearing exammer for further
investigation.
5. Such other action as the Board may deem appropriate under the circumstances.
H. The parties to the Agreement stipulate and agree that the City is a third party beneficiary of
the provisions of this attachment/exhibit and may enforce the same as such through any
appropriate remedies in law or equity.
1. The provisions of this attachment/exhibit shall be interpreted and applied in accordance with
that certain "Policy on Payment of Prevailing Wages by Private ReOwners or Owner-
Participants", adopted by the Community Redevelopment Agency of the City of Santa Ana
on May 20, 1986, subject to any and all amendments thereto to the date of the Agreement, a
public record on file in the offices of the Agency.
J. Owner shall no later than the 15th day of each month during construction of the Project
submit to the City a self-audit report declaring under penalty of perjury and demonstrating
that during the prior month it has complied with the provisions of this attachment/exhibit and
California prevailing wage law. The self-audit report or statement not be binding nor
conclusive, nor shall the filing or failure to file such report or statement preclude the City
from conducting an audit.
K. Owner shall keep and preserve for a period of not less than four (4) years all records as may
be necessary to determine whether it has paid prevailing wage as required by this
attachment/exhibit, which records shall be made available to the City or its consultants and
agents at all reasonable times for purposes of conducting an audit. Owner shall permit an
examination of such books and records at a location within the City. In the event such books
and records cannot be made available within the City, the operator shall reimburse the City
for the cost of all transportation, lodging, meals, portal-to-portal travel time and other
incidental costs reasonably incurred by the City in conducting the audit. Appropriately
identified confidential or proprietary information furnished to the city as part of an audit shall
remain confidential, except in case of civil action or criminal prosecution.
Attachment No. 1-2
to Exhibit D
DOCSOC/1J J0339vJ1/24579-000J
L. Should any City conducted audit conclude that Owner has failed to pay prevailing wage in at
least five percent (5%) of the audited transactions (with a single pay day of a single wage
earner constituting one transaction), then Owner shall reimburse City for all actual costs of
the audit within thirty (30) days of receipt by Owner of the City's invoice.
Attachment No. 1-3
to Exhibit D
DOCSOC/l 1 10339vl1/24579-0001
EXHIBIT E
A VIGATION EASEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Clerk of the Council of the City of Santa Ana
20 Civic Center Plaza, M-30
P.O. Box 1988
Santa Ana, California 92702
EXEMPT FROM FILING FEES. CAL. GOV'T CODE & 6103
(Space Above Line for Recorder's Use)
GRANT OF A VIGATION EASEMENT
(John Wayne Airport)
ASSESSOR PARCEL #
RECITALS:
1. The Grand Plan 1, LLC, a California limited liability company and The Grand Plan 2,
LLC, a California limited liability company (collectively, the "Grantor"), is the owner of the fee
simple estate in and to that certain real property situated in the County of Orange, State of California,
commonly described as 1, 9 and 10 Hutton Centre and 101 E. Sandpointe Avenue, Santa Ana,
California and more particularly described in Attachment No.1, attached hereto and incorporated by
this reference ("Subject Property");
2. It is the desire of Grantor, for itself, its heirs, administrators, executors, successors,
assigns, tenants, guests, and other persons in or using the Subject Property with the implied or
express consent of Grantor, to grant to the City of Santa Ana, a political subdivision of the State of
California (the "City"), an air and avigation easement, also known as a perpetual air, flight or noise
easement, on, upon, over, across, above, or in the vicinity of the Subject Property, and to all of the
Airspace (as hereinafter defined) above the Subject Property, whereby Grantor relinquishes certain
rights relative to the Subject Property, as described in this Grant of Avigation Easement (this
"Avigation Easement");
3. The purpose of this Avigation Easement, and its acceptance by the City, includes
granting the City an A vigation Easement permitting the unencumbered and unrestricted flight of
aircraft to or from John Wayne Airport ("JW A"), owned and operated by the County of Orange,
without liability to the City, to the aircraft operator, or to any other person lawfully operating aircraft
to or from JW A in the navigable airspace of the United States (as defined at 49 U.S.C.S.
S40102(a)(30)), and as that section of the United States Code (and the referenced regulations) existed
on the effective date of this A vigation Easement, and in accordance with relevant regulations of the
United States of America and the State of California, pursuant to the authority granted to the County
Grant of Avigation Easement
DOCSOCIlII0339vll/24579-0001
E-l
~
by the people and the State of California. As agreed upon by the parties, this A vigation Easement is
calculated by reference to the Airport Environs Land Use Plan ("AELUP") for JWA Years
1990/2005 "Project Case" noise contours (as depicted in Appendix D of the AELUP for JWA dated
December 19,2002) plus 1.5 decibels ("dB") Community Noise Equivalent Level ("CNEL");
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged:
WARRANTIES AND COVENANTS:
Grantor warrants and covenants to the City that as of the date hereof:
Grantor holds the entire fee simple interest in the Subject Property;
Grantor shall not convey its interest in the Subject Property, or execute, deliver, or
permit hereafter recordation of any interest in the Subject Property, or any lien or encumbrance
against the Subject Property (or any interest therein), until the earlier of the following events: (i) this
A vigation Easement has been properly executed by Grantor, accepted by the City, and recorded by
the Orange County Recorder; or (ii) thirty (30) days have elapsed after Grantor have delivered this
Avigation Easement to the City, properly and fully executed and notarized.
If the person executing this A vigation Easement is other than the Grantor, the person
executing this Avigation Easement has represented to the City, in documentation separate from this
grant, that he/she has been duly and lawfully authorized by Grantor to execute this A vigation
Easement on behalf of Grantor.
GRANT OF A VIGATION EASEMENT
Grantor, individually and for its heirs, administrators, executors, tenants, guests, agents,
successors, assigns, and other persons in or using the property with the implied or express consent of
Grantor, hereby grants, conveys and assigns to the City and its successors, and assigns, a perpetual
non-exclusive and assignable A vigation Easement and the right to enter or penetrate into or transmit
through the Airspace above, on or in the vicinity of the Subject 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 Subject Property that may be, or may be alleged to be, incident to or resulting
from the use and enjoyment of said Airspace and any and all related aircraft and airport operations,
including, but not limited to, those impacts and effects described in Section 5.
This A vigation Easement shall be for air navigation, airport operations, aircraft sound and
noise, aircraft avigation and flight in, to, over and through the Airspace above the Subject Property,
as well as the imposition in, on, over, upon or in the vicinity of the Subject Property of noise, sound,
vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such
aircraft operations and any and all resulting annoyance, inconvenience, or other interference with the
use and enjoyment of the Subject Property and any consequent reduction in market value, all due to
the operation of aircraft to and/or from JW A, including landing at, taking off from, taxiing,
maintenance, or other aircraft or related facility operations at or on JW A.
This A vigation Easement is for the use of such airspace by any aircraft, present or future, in
whatever form or type, during operations at, on, to, or from JW A, including any future change to or
increase in JW A's boundaries and/or in the volume or pattern of aircraft traffic or aircraft noise, by
Grant of A vigation Easement
DOCSOC/1J J0339vJ 1/24579-000J
E-2
all existing or future types of aircraft, up to and including the AELUP for JW A Years 1990/2005
"Project Case" noise contours (as depicted in the AELUP for JW A, Appendix D) plus 1.5 dB CNEL,
including the imposition on the surface of the Subject Property and on any and all structures on the
Subject Property of such noise, vibration, fumes, fuel particles, dust, discomfort or other
environmental effects incident to such aircraft operations and any and all resulting annoyance,
nuisance, inconvenience, taking of or damage to the Subject Property, or any portion of the Subject
Property, or other interference with the use and enjoyment of the Subject Property and any
consequent reduction in market value. This A vigation Easement shall continue notwithstanding any
future changes or increases in the type, volume, frequency, duration, or location of operations to,
from or at JW A up to and including the AELUP for JW A Years 1990/2005 "Project Case" noise
contours (as depicted in the AELUP for JW A, Appendix D) plus 1.5 dB CNEL.
This A vigation Easement also includes all things that may be alleged to be incident to or
resulting from the use and enjoyment of this Easement, including, but not limited to, the Grantee's
continuing right to prevent, prohibit, clear and keep clear from the Airspace above the Property any
buildings, portions of buildings, structures or improvements of any kind, and of trees, vegetation, or
other objects that may cause interference with aircraft navigation and/or operations at JW A,
including the right to remove or demolish those portions of such buildings, structures, improvements,
trees, vegetation, or other objects which extend into the Airspace and, in the reasonable judgment of
the Grantee, may cause interference with aircraft navigation and/or operations at JW A, and, at the
reasonable discretion of the Grantee, the right to mark and light, or cause or require to be marked and
lighted, as obstructions or hazards to air navigation or aircraft operations, any and all buildings,
structures, or other improvements, and trees, vegetation, or other objects, which extend into the
Airspace above the Property. This A vigation Easement also includes the Grantee's right of ingress to,
passage within, and egress from the Property to inspect the Property, improvements or vegetation of
any type on the Property and, to remove any building, structure, other improvement, tree or
vegetation (or portion thereof) which extends into the Airspace in violation of this Section, or to
install such lighting, or marking of any such improvement or vegetation as permitted by this Section;
and for all other purposes described in this Section at reasonable times and after reasonable notice.
Grantee shall use reasonable efforts to minimize any disturbance of the occupants of the Subject
Property in exercising its rights hereunder. If any building, structure, other improvement, tree or
vegetation (or portion thereof) extends into the Airspace in violation of this A vigation Easement,
Grantee shall so notify Grantor, or its successors, of such violation and the requested corrective
measure, which may include, but not be limited to, the installation of such lighting, or marking of any
such improvement or vegetation, as required by law. If the Grantor, or its successors, do not correct
such violation within thirty (30) days, or such shorter time period as may be required by Grantee due
to an emergency or some other circumstance requiring more immediate action, the Grantee shall have
the right of ingress to, passage within, and egress from the Property to remove any building,
structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace
in violation of this A vigation Easement, or to install such lighting, or marking of any such
improvement or vegetation, as required by law or as reasonably required by Grantee.
The cost to remove any building, structure, other improvement, tree or vegetation (or portion
thereof) which extends into the Airspace in violation of this A vigation Easement, or to install such
lighting, or marking of any such improvement or vegetation as permitted by Section 7; and for all
other purposes described Section 7 shall be borne exclusively by Grantor.
As used in this Avigation Easement, the term "aircraft" shall mean any and all types of
aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be
Grant of Avigation Easement
DOCSOC/1110339vl1124579-0001
E-3
limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft,
military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence
or hereafter developed for the purpose of transporting persons or property through the air, by
whomever owned or operated.
As used in this Avigation Easement, the term "Airspace" shall mean the entire area above
those certain imaginary surfaces over the ground surface of the Property that are within the Federal
Aviation Regulations ('''FAR'') Part 77 Surfaces, as specified in Advisory Circulars 7017460-2K
(height criteria) and 7017460-1H (standards for marking and lighting) and any and all successor
revisions or regulations by the Federal Aviation Administration, any successor agency, or any other
agency of the federal, state or local government of the United States of America exercising
comparable authority except that additional area below those certain imaginary surfaces over the
ground surface of the Property particularly described in Exhibit "A" attached hereto.
It is expressly intended by Grantor and the City that this A vigation Easement shall not
supersede or impair any existing prescriptive, avigation, or other easements, rights, or interests of the
City, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any
remedies related thereto are expressly reserved by the City.
In furtherance of this A vigation Easement, and rights herein granted, Grantor, and the heirs,
administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times
hereafter, that it/they will not take any action or knowingly cause any electronic, light or other
transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust or smoke
on the Subject Property which would conflict or interfere with or infringe on the City's rights herein
granted, or to otherwise impair the usability or function of JW A.
The rights, easements, benefits, restrictions, covenants and agreements granted herein,
including this A vigation Easement, shall continue notwithstanding any increase or other change in
the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air
traffic to, from or at JW A. This A vigation Easement may not be modified, amended, terminated, or
abandoned except by execution and delivery of an instrument executed and acknowledged by the
City, or its agents, successors, and assigns, and Grantor agree(s) that, in the absence of such an
instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be
construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall any conduct
by the City, or its agents, successors and assigns, or increase, diminution, or change in use of this
A vigation Easement, or the operation or use of JW A by Grantee constitute an overburdening of this
A vigation Easement or a termination or abandonment of this A vigation Easement.
Construction of the "MacArthur Place" project (the "Project") at the Subject Property will
require the use of construction cranes and related construction equipment. For purposes of this
A vigation Easement, the City will not consider the temporary utilization of the construction cranes
and related construction equipment that have a height that exceeds JW AFAR Part 77 imaginary
surfaces as an encroachment on or in violation of this A vigation Easement, provided that all of the
following apply:
The Federal Aviation Administration ("FAA") has conducted any required
aeronautical study of the proposed object(s) pursuant to FAA Order 7400.2E, and any and all
successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation"
for the proposed objects; and
Grant of Avigation Easement
DOCSOC/ll10339vll/24579-0001
E-4
All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
Extraordinary maintenance and repair activities (e.g., boiler replacement, fa9ade replacement,
elevator equipment replacement, cooling tower replacement, seismic damage repair) may be required
after construction of the Project. For purposes of this A vigation Easement, the City will not consider
these types of extraordinary maintenance and repair activities as encroachment(s) on, or violations of,
this A vigation Easement, provided that all of the following apply:
The FAA has conducted any required aeronautical study of the proposed object(s)
required to be utilized during the extraordinary maintenance and repair activities pursuant to FAA
Order 7400.2E, and any and all successor revisions or regulations, and has issued a "Determination
of No Hazard to Air Navigation" for the proposed objects; and
All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
In the event of any disaster or other casualty directed against or affecting the bui1ding(s)
located on the Subject Property which damages or destroys the bui1ding(s), Grantor shall be entitled
to demolish, reconstruct, repair or replace the bui1ding(s) on the terms set forth above in Section 14
of this Avigation Easement, subject to any required FAA determination(s) and recommendation(s).
The parties to this A vigation Easement acknowledge and agree that the easement, and all the
rights, easements, benefits, restrictions, covenants and agreements set forth herein shall run with the
land of the Grantor and the City, and any grantee, heir, agent, successor or assign of the Grantor who
acquires any estate or interest in or right to use the Subject Property shall be bound by this A vigation
Easement for the benefit of JW A and the City, and its agents, successors and assigns, including,
without limitation, the tenants and licensees of the City, and all users of JW A. This A vigation
Easement and all rights pertaining hereto is hereby vested in the Grantee, its successors and assigns,
forever and without limit in time, and shall be binding upon and inure to the benefit of the successors
and assigns of Grantor.
Grantor, and the grantees, heirs, agents, successors, and assigns of Grantor, hereby fully
waive and forever release, and covenant not to assert or bring any right or cause of action, which it or
they might now have, or which it or they may have in the future, against the City, its agents,
successors, and assigns, or against the tenants, licensees, permittees, or users of JW A, caused by or
relating to the use of this A vigation Easement or the exercise of rights under this A vigation
Easement. This grant of this easement shall not operate to deprive the Grantor, its heirs, agents,
successors, and assigns, of any rights which may from time to time arise against any air carrier or
private operator for negligent or unlawful operation of aircraft.
In the event that anyone or more covenant, condition, right or other provision contained in
this A vigation Easement is held to be invalid, void, or illegal by any court of competent jurisdiction,
the same shall be deemed severable from the remainder of this A vigation Easement and shall in no
way affect, impair, or invalidate any other covenant, condition, right or other provision contained in
this A vigation Easement.
This A vigation Easement constitutes an enforceable restriction pursuant to the provisions of
California law, including, but not limited to, Section 21652 of the California Public Utilities Code,
Grant of Avigation Easement
DOCSOC/Il10339vll/24579-0001
E-5
and shall bind Grantor and the grantees, heirs, administrators, executors, lessees, tenants, permittees,
agents, successors, and assigns of Grantor(a), and each and all of them, and shall be appurtenant to,
and for the benefit of, the real property commonly known as JW A, which is more particularly
described in Attachment No.2 attached hereto.
Dated:
_,2005
GRANTOR:
THE GRAND PLAN 1, LLC, a California limited
liability company
By:
Name:
Title:
THE GRAND PLAN 2, LLC, a California limited
liability company
By:
Name:
Title:
Grant of Avigation Easement
DOCSOC/ll10339vll/24579-000l
E-6
ATTACHMENT NO.1
TO EXHIBIT E
SUBJECT PROPERTY DESCRIPTION
Grant of Avigation Easement
DOCSOClll10339vl1/24579-0001
Attachment No. 1-1
to Exhibit E
ATTACHMENT NO.2
TO EXHIBIT E
JW A PROPERTY DESCRIPTION
Grant of Avigation Easement
DOCSOCIlII0339vl1/24579-0001
Attachment No. 2-1
to Exhibit E
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in the real property conveyed by the Easement Deed dated
from THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC to
the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California, is hereby accepted by the undersigned officer or
agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS-2352 and
Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1998, in
compliance with California Government Code Section 27281 and the grantee consents to recordation
thereof by its duly authorized officer.
Dated:
CITY OF SANTA ANA
By:
Name:
Title: City Manager
Grant of A vigation Easement
DOCSOC/lII0339vll/24579-0001
Certificate of Acceptance
ACKNOWLEDGMENT
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
On
, 20 , before me
personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature ( s) on the instrument the person( s ), or the
entity upon behalf of which the person( s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Grant of Avigation Easement
DOCSOC/ll10339vll/24579-0001
Acknowledgment
EXHIBIT F
LAKE IMPROVEMENTS
1. Exercise path with markers
2. Upgraded/enhanced landscaping around the Lake with large water oriented shade trees
3. Dancing water jets in the Lake
4. An amphitheatre on the green (back side of the Lake Towers facing the lake)
5. A terraced pedestrian plaza at the base of the Lake Towers
F-l
DOCSOC/1110339vll/24579-000l
ESTOPPEL CERTIFICATE
June 9, 2006
From: The City of Santa Ana
22 Civic Center Plaza
Santa Ana, California 92701
Attn: David N. Ream
Telephone No.: (714) 647-5200
Facsimile No.: (714) 647-6954
Re: The development commonly known as "MacArthur Place" (the "Project"), located in the
City of Santa Ana (the "City"), County of Orange (the "County"), State of California
The City understands that Fremont Investment & Loan, a California industrial bank and
Lehman Brothers Holding, Inc., doing business as Lehman Capital, a division of Lehman
Brothers Holdings, Inc., a Delaware corporation (the "Lenders"), intend to make construction
and mezzanine loans to NDC Skyline Associates, LLC, a Delaware limited liability company
(the "Borrower") with respect to the Project.
Lenders have requested City to confirm certain matters pertaining that certain
Development Agreement, dated effective as of August 4, 2005 and recorded in the Official
Records of Orange County on July 21, 2005 as Instrument No. 2005000565108 (the
"Development Agreement"), by and among the City, and The Grand Plan I, LLC, a California
limited liability company, and The Grand Plan 2, LLC, a California limited liability company, (
collectively "Grand Plan"), Borrower's predecessors in interest with respect to the Project.
In connection with the foregoing, the City hereby certifies for the benefit of Lenders, as
follows:
I. The Development Agreement is in full force and effect, has not been modified,
supplemented or amended, and constitutes the binding obligation ofthe City.
2. Neither the City, nor to the City's actual knowledge, Grand Plan nor Borrower are
in default under any of the terms or conditions set forth in the Development Agreement and the
City knows of no circumstances or occurrences which, solely due to the passage of time or
otherwise, would constitute a default by the City, Grand Plan or the Borrower under the
Development Agreement.
3. The City has full authority to execute this Estoppel Certificate. The person
signing this Estoppel Certificate on behalf of the City is authorized to do so.
780S97.02/OC
N600J.044/6-9-06/sij/sij
IN WITNESS WHEREOF, The City has executed and delivered this Estoppel Certificate
as of the day and year first written above.
CITY OF SANTA ANA,
a charter city and municipal corporation
ATTEST:
A TRICIA E. HEALY
Clerk ofthe Council
DAVIDb!df}~
City Manager
APPROVED AS TO FORM:
780597.02/0C
N6003-044/6-9-06/sij/sij
2
ESTOPPEL CERTIFICATE
May 9, 2007
From: The City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attn: David N. Ream, City Manager
Telephone No.: (714) 647-5200
Facsimile No.: (714) 647-6954
The undersigned, the City of Santa Ana ("City") is a party to that certain Development
Agreement recorded in the official records of Orange County, California on July 21, 2005 as
Document Number 2005000565108 (the "Agreement"), by and between the City on one hand,
and The Grand Plan 1, LLC, a California limited liability company and The Grand Plan 2, LLC,
a California limited liability company (collectively "Nexus") on the other hand, with respect to
the real property described therein (the "Property"). The City understands that Nexus ~
subsequently conveyed -a portion of the Property to Integral Communities I, a Delaware
corporation ("Integral"). City has been advised .that an affiliate of Integral is obtaining a loan
from Fremont Investment & Loan, a California industrial bank (together with its successors and.
assigns, "Lender") having a notice address of 2727 East Imperial Highway, Brea, California
9282, Loan No. 950115127. City hereby states to Lender as follows:
1. The Agreement has not been amended.
2. The Agreement is presently in full force and effect according to its terms.
3. To the best of the City's actual knowledge after reasonable inquiry, neither the
City nor Integral is in default under the Agreement.
This Statement does not (a) constitute a waiver of any rights the City may have under the
Agreement, or (b) modify, alter, waive, or change any of the terms or conditions of the
Agreement nor otherwise constitute any discharge or waiver of any claims that the City has, or
may have, against Integral.
No officer or employee signing this Statement on behalf of the City shall have any
liability as a result of having given this statement.
The statements contained in this Statement are not affirmative representations,
warranties, covenants or waivers, and the City shall not be liable to Integral, Lender or any third
party on account of any information herein contained, notwithstanding the failure, for any
reason, to disclose and/or correct relevant information. Notwithstanding the preceding sentence,
the City shall be estopped from asserting any claim or defense against Lender to the extent such
claim or assertion is based upon facts, now known to the person(s) signing below on behalf of
the City, which are contrary to those contained herein, if Lender has acted in reasonable reliance
Estoppel Certificate
May 9, 2007
Page 2
upon such statements without knowledge of facts to the contrary. This Statement is given solely
for Lender's information and may not be relied upon by anyone other than Lender, or in
connection with any transaction other than the transaction described above.
IN WITNESS WHEREOF, the City has executed and delivered this Estoppel Certificate
as of the day and year first written above.
ATTEST:
CITY OF SANTA ANA,
a charter city and municipal corporation
PATRICIA E. HEAL
Clerk of the Council
DAVID NfJ:fl; 4-
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Benj
Chief.
RECOMMENDED FOR APPROVAL:
~
. ~cutive Director, Planning
and Building Agency