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HomeMy WebLinkAboutSANDPOINT NEIGHBORHOOD ETAL - 2005 :i A-200S-169 '-",:",: 'fiT! '-[ - J-l) "o~i ", ;,;i'. j', ,~. ~) ',) G' f'eo It tV- F~o) COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS THIS Agreement is entered into this "I tf' day of .Ar' i I ,2005, by and between the SANDPOINTE NE1GHBORHOOD ASSOCIATION, INC., a California, non-profit public benefit and federaI501(c)(3) corporation ("Sandpointe"), the NEXUS DEVELOPMENT CORPORATION/CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"), COASTAL RIM PROPERTIES, INC., a California corporation ("Geneva Commons"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"). WITNESSETH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23-residentiallevel condominium high-rise and one 24-residentiallevel condominium (for a total not to exceed 835 condominium units), together with ancillary retail not to exceed 14,000 square feet (the "Nexus Project"). B. Geneva Commons has proposed constructing at the northeast corner of MacArthur Boulevard and Imperial Promenade an approximately 278-unit condominium project consisting of an 18-residentiallevel high rise project and an eight-story building, together with ancillary retail (the "Geneva Commons Project"). C. Sandpointe is a non-profit corporation that serves as a conduit between the Sandpointe Neighborhood ("Neighborhood") and outside community and political interests. Sandpointe Neighborhood is a residential neighborhood of single family and some multi-family homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of approximately 800 residences. Sandpointe does not have the authority to bind any individual resident of the Sandpointe Neighborhood. D. The Agency is a community redevelopment agency, as that term is defined in California Health & Safety Code S 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 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 ("Improvements"). F. The Agency is willing to assist in the funding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to fund specified improvements that would reduce blight and benefit the Project Area. G. The City's participation in this Agreement is limited to coordination of funding and/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to construct some of the improvements, and pay for the construction of others, as more fully set forth below ("Nexus Improvements"). I. Geneva Commons has agreed to pay for a portion of the Nexus Improvements. NOW, THEREFORE, the parties hereto do mutually agree as follows: 1. SCOPE OF WORK A. Nexus shall construct and/or fund the improvements identified as "Nexus 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 Improvements. 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 of residential units approved for it and Nexus. C. Ifthe entire Nexus and Geneva Commons Projects are constructed, Agency shall cause the construction of the improvements identified as "Publicly-Owned Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto and incorporated herein by this reference. The parties acknowledge and agree that the total cost of the publicly owned improvements, including studies, design and overhead, shall not exceed Five Million Dollars ($5,000,000.00). 2 2. 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 2.0. of this Agreement, Nexus and Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the Nexus Improvements. If, at any time, either Geneva Commons or Nexus determines that such agreement is not possible, then the objecting party shall submit its dispute in writing, together with any evidence upon which it relies to the Executive Director of the City's Public Works Agency and the other party. Within fIfteen (15) days of its receipt of said notice, the non-objecting party shall then have fIfteen (15) days to submit any response it has to the City and the objecting party. The Executive Director of the City's Public Works Agency or designee shall then, within thirty (30) days of receipt of the response, if any, or the expiration of said deadline, inform both Geneva Commons and Nexus in writing of the fInal determination of the estimated total cost, which all parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter, Nexus and Geneva Commons shall deposit their respective shares of the estimated cost of the Nexus Improvements as set forth in paragraph LB. of this Agreement, less $1,000.00, into the Nexus Escrow no later than the date specifIed in paragraph 2.0. of this Agreement. D. Nexus shall pay into the Nexus Escrow no later than (i) the date the fIrst building permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance of entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been f1!ed 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 f1!ed and served on the City, whichever comes later. , E. The Agency shall pay the City its cost incurred by the City for the Publicly-Owned Improvements set forth in Exhibit A to this Agreement; provided, however that total commitment by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE MILLION DOLLARS ($5,000,000.00). If the items set forth as Publicly-Owned Improvements in Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and absolute discretion, limit or eliminate Publicly-Owned Improvements set forth in Exhibit A; provided, however, that the Agency shall proceed with the Publicly-Owned Improvements in the order as set forth in said Exhibit. 3. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS A. Nexus shall prepare and submit construction drawings and related documents for items listed on Exhibit A to the City for review (including, but not limited to, architectural review) and written approval as and at the times established in the Schedule of Performance set forth in Exhibit B to this Agreement. The construction drawings and related documents shall be submitted in two stages: (i) the Preliminary Site Plans and (ii) Final Site Plans. B. During the preparation of all drawings and plans, City staff and Nexus shall hold regular progress meetings to coordinate the preparation of, submission to, and review of construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the City can receive prompt and speedy consideration. C. Any revision or correction of plans required by the City shall be deemed approved by the Agency, Geneva Commons and Sandpointe. D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any ownership interest in, or any right to use, the Preliminary Site Plans or the Final Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity. 4. APPROVAL OF NEXUS PLANS, ORA WINGS AND RELATED DOCUMENTS A. The City shall have the right of reasonable review (including, but not limited to, architectural review) of all plans, drawings and related documents including any proposed changes therein. The City shall approve or disapprove such plans, drawings, and related (and any proposed changes therein) within the times established in the Schedule of Performance set forth in Exhibit B hereto. Such approval shall not be unreasonably withheld. B. Any disapproval shall state in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A to this Agreement, or are incomplete. 4 C. The City shall state in writing the reasons for disapproval of the Final Plans within sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60) day period shall not be grounds for resubmittal. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawings or related documents in a manner that reasonably satisfies the reasons for disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of the notice of disapproval. Plans, drawings, and related documents receiving City approval shall not be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related documents comply with all Governmental Requirements. 5. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS IMPROVEMENTS a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements in conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and the approved Final Plans, exceeds the funds in the Nexus Escrow, Nexus and Geneva Cornmons shall be solely responsible for said costs, with each responsible for any additional cost to the same percentage as is set forth in paragraph 1.B. of this Agreement. Nexus shall complete or fund, as the case may be, the construction of the improvements in conformance with the schedule set forth in Exhibit B to this Agreement. b. The parties acknowledge and agree that the Block Wall identified as Item No. I on Exhibit A will be constructed on the properties of dozens of individual homeowners in the Sandpointe neighborhood, none of whom are parties to this Agreement. The parties agree to use their best efforts to obtain permission of each of these individual property owners to construct this Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the wall. However, it is the parties understanding and intent that should any property owner refuse to agree to permit the construction and/or exterior ivy maintenance ("hold outs"), that the Block Wall will be constructed regardless of any hold-outs, and that Nexus shall construct the Block Wall in such fashion as to join the Block Wall to existing wall segments owned by hold outs and minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents 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 ofa potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees and costs of independent counsel selected by Sandpointe for defense of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. 'i 6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS Upon the issuance of a certificate of occupancy pursuant to the California Building Code for (i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to proceed to design and construct the Publicly-Owned Improvements as set forth in Exhibit A. If only a portion of the residential units have been constructed within five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the Publicly-Owned improvements, and the City's obligation to complete these Publicly-Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from the project-specific tax increment generated by the Nexus Project; provided, however, that City and Agency shall construct item no. l.a. on the list of Publicly-Owned Improvements in Exhibit A to this Agreement regardless of the project-specific tax increment received by the Agency. 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS a. City shall construct the Publicly-Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency and City shall have no obligation once the cost of the Publicly-Owned Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly-Owned Improvements, including all design, administrative and construction costs exceed $5,000,000.00, then the City shall construct only that portion of the Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's sole and absolute discretion. b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside ofthe 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 indenmifY 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 Ii 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 hannless Agency, City and their respective officers, directors, agents and employees from and against all damages to property or injuries to or death of any person or persons, in any way resulting from the negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or subcontractors. This Agreement shall not be interpreted or construed to obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnifY or to answer in any way for the Agency the City or their respective officers, directors, agents or employees for such claims. B. Prior to the commencement of construction, Nexus or any other party working within the real property 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 of liability insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the City and Sandpointe, their officers, directors, agents, and employees, as insured or additional insured, which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of operations of Nexus, its officers, directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000) combined single limit, or its equivalent. Said policy or policies shall also contain a provision that no termination, cancellation, or change of coverage of insured shall be effective until after thirty (30) days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and City prompt and timely notice of claim made or suit instituted arising out of Nexus operations hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which in its own judgment may be necessary for its proper protection in the prosecution of the work. All insurance policies shall be written by responsible and solvent insurance companies and shall include an additional insured endorsement in substantially the form of Exhibit D, attached hereto and incorporated herein by this reference 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Nexus shall carry out the design, construction, and operation of the Nexus Improvements in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of Cali fomi a, 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. ill2101 et seq., Government Code il4450 et seq., and the Unruh Civil Rights Act, Civil Code il51 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 I MacArthur Place, Suite 300 Santa Ana, California 92707 Attention: Cory W. Alder Geneva Commons: Coastal Rim Properties, Inc. 139 East Alton Avenue Santa Ana, California 92707 Attention: Franco Mola A party may change its address by giving notice in writing to the other parties. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays hall be excluded. 10 16. EFFECTIVE DATE AND TERM OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to official action of the governing bodies thereof and shall be effective until completion and acceptance of the Nexus Improvements and Publicly-Owned Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Geneva Commons twenty- five percent (25%) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and acknowledge that all references herein to Nexus shall be deemed to be references to Geneva Commons. If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointe shall meet and confer in good faith, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Nexus seventy-five percent (75%) share of the estimated cost of the total Nexus Improvements. 17. COMMENCEMENT DATE For purposes of this Agreement the term "Commencement Date" shall refer to the period after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The Commencement Date shall be tolled should a valid referendum petition be presented challenging either project, or timely litigation be filed and served challenging any of the entitlements, including approval pursuant to the California Environmental Quality Act. 18. INTEGRATION This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreement between the parties with respect to all or any the matters addressed herein. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by the appropriate authorities of the parties. 19. ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in whole, to any person, entity (public or private), partnership, joint venture, firm or corporation who is the owner of the real property referenced in the Recital hereto at any time during the term of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this Agreement may not be transferred or assigned unless the written consent of the City Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in 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, INe. w~~ Its r ftA iP./J1lJtV 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 CORPORA nON! CENTRAL DIVISION, INC. By Name Its .t.L ,'2 "';;--- 12 THE GRAND PLAN 2, LLC By Curtis R. Olson Managing Partner COASTAL RIM PROPERTIES, INC. THE CITY OF SANTA ANA >; / (! . , ~/')2 L- til-j-..-- /j /, i~ David N. Ream v - City Manager By Name Its ATTEST: ~~f~~ Patricia E. Healy Clerk of the Council By , I 4 ~L- , -- 11 THE GRAND PLAN 2, LLC By 4 Q~-.k.~ Curtis R. Olson Managing Partner COASTAL RIM PROPERTIES, INC. By Name Its ATTEST: THE CITY OF SANTA ANA ~lcQ- -C",~.~ Patricia E. Healy Clerk of the Council By APPROVED AS TO FORM: / ~! /}. / /./... .."jiI."1:.-/ 1/7;;",<" ~--' David N. Reamv City Manager 11 ATTEST: Cau:v~ I ....-eatricia E. Healy 0- Secretary of Agency APPROVED AS TO FORM: COMMUNITY REDEVELOPMENT AGENCY OF THE C OF SANTA ANA By Pa ricia C. Whitaker Executive Director 14 EXHIBIT A OFF-SITE IMPROVEMENTS NpYlI!iIl Tmprnvpmpnh I. Block Wall a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy b. North side of Sunflower between Main & alley adjacent to four plexes, excluding sections of wall at comer of Main & Sunflower at rear of commercial building c. Plaster and paint with one color selected by Association d. $3,000 per house payment for repair/replacement oflandscaping associated with wall improvements upon execution of Nexus right-of-entry for construction and exterior-wall maintenance easement. This payment shall be made by Nexus at the time the individual property owner executes the construction easement in favor of Nexus and permanent maintenance easement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement, Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out. e. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association. . f. Remove and replace 4 sections of white concrete block wall along West Alton Avenue and paint with one color selected by Association. g. Nexus shall install climbing vines, species identified by the City, along the outer edge of the wall, install irrigation to feed said climbing vines which shall be connected and metered by Nexus at the nearest City water supply, and shall reconstruct the sidewalk to the City's specifications after installation of the irrigation lines and block wall. h. Wall replacement specifications shall be established pursuant to paragraph 4 of this Agreement. 1. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety (90) day plant establishment phase following item no. I.g. 2. Window Replacements a. Nexus shall provide $3,500 construction allowance per house for sound proof window replacements for up to 49 residential units located along Main Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A-I to this Agreement. b. Nexus shall assist Sandpointe in obtaining/preparing necessary construction bids, documents and permits. c. Allowance will be paid by Nexus to Sandpointe for any applicable home upon receipt of bona fide construction or material invoices. d. Allowance shall expire 12 months following the completion of the concrete wall lS 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. Pnhlirly-Ownpfi lmprovprnpnh Utility Undergrounding a. Main Street - MacArthur to Sunflower b. MacArthur - Main to Flower c. Sunflower - Main to Flower (north side of street) Iii Single Family Homes: . I. 101 W. Murphy 2. 3701 S. Alder 3. 3705 S. Alder 4. 3709 S. Alder 5. 3713 S. Alder 6. 3717 S. Alder 7. 3721 S. Alder 8. 372'1 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. Alder IS. 382 I 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. SteVen. 24. 114 W. Steven. 25. 118 W. Stevens 26. 122 W. S...... 27. 202 W. 5""'"" 28. 206 W. Sleven' 29. 210 W. Stevt:n, 30. 214 W. 5.....,. 31. 3926 S. Timber 32. 302 W. Sleven' 33. 306 W. Sleven. 34. 310 W. St..... 35. 314 W. Sreven.. 36. 318 S. Steven. 37. 3922 S. Bln:h FDUrplexe..ot 38. 3925 S. Ros. 39. 401 W. Sunflower 40. 405 W. Suntlower 41. 409 W. Sunflower 42. 501 W. Sunflower 43. 505 W. Sunflower 44. 509 W. Sunflower 45. 513 W. Suntlower Main Attraction Condominium. 46. 3620 A S. Main 47.3632 A S. Mllin 48.3632 B S. Mllin 49.3632 C S. Main EXHIBIT A-I List of 49 Residential Units List ofEJigible Home.q fOf Window Replacements Along Main .Tld Sunflowv (.ides lQ Main) (baclcs to Main) (bacIcs to Main) (1)llcks to Msln) (backs ta Main) (baclcs to Main) (back.. to Main) (bac:kJ t<> M.in) (bocks to Main) (bock..to Main) (back.. to Main (backs to Main) tbaclcs to Main) (1)llclcstnMain) (backs to M.In) (haclcs to Alder) (backs to Main) (bock. to Main) (baclcs to Main) (back.. to M.in) (backs to M.in lll1d MiniMarket) (b4Cks to Mllin and Mini Marlcel) (baeb to M8i~ and Mini Market) (back. to Sunflower and Mini Market) (bacIcs to Suntlow..) (boclcs to Sunflower) (baclcs to Sunflower) (bocks to Sunflower) (baclcs to Sunflower) (boclcs to Sunflower) (.ides to SunflQWet') (baclcs to Sunflower) (baclcs to Sunflower) (backR to Sunflower) (backs 10 Sunflower) (backs to Sunflower) (boCks to Sunflower) (~idcs to Sunflower) (fronts Sunflower) (I'tonts Sunflower) (flunts Sunflower) (fronts Sunflower) (tronl'Sunflower) (flunt. Sunflower) (fronts Sunflower) (sides to Moin) (ftnnts Main) (fron" Main) (lTonts Main) 17 EXHIBIT B SCHEDULE OF NEXUS IMPROVEMENTS 1. Construction ofItem No. I to Exhibit A shall conform to the following schedule: a. Preliminary Site Plans - Due within thirty (30) days of the Commencement Date. c. Final Plans - Due within sixty (60) days of City approval of Preliminary Site Plans, together with proposed Right-Of-Entry and Maintenance Easement for review of City and Sandpointe. d. Building Permits, Construction Right-Of-Entry (in favor of Nexus), and Permanent Maintenance Easement for Exterior of Wall (in favor of City) - Application, right of entries and easements shall be submitted no late than sixty (60) days after City approval of Final Plans. e. Construction Commencement - Within thirty (30) days after approval of Building Permits. f. Construction Complete - Within one hundred twenty (120) days of commencement of construction. g. Ninety (90) day plant establishment phase after completion of construction of climbing vines and irrigation. 2. Construction ofItem No.2 to Exhibit A shall conform to the following schedule: a. Final building permit plans shall be submitted by individual Sandpointe homeowners to City no later than construction complete date for item no. I, above. b. Construction shall be complete pursuant within one hundred twenty (120) days of issuance of City Building Permit. 3. Construction of Item No.3 to Exhibit A shall conform to the following schedule: a. Nexus shall submit executed Definitive Easement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to meet this deadline, which may be extended in writing by Nexus and Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a separate escrow with terms providing for its withdrawal by Sandpointe, which are mutually agreeable to all parties, for use by Sandpointe on other projects to benefit the Sandpointe neighborhood. b. Nexus shall complete this item not later than eighteen (18) months from the lR Commencement Date. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final map for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Council. 5. Construction of Item 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. TIlls preliminary estimate shall be updated, if necessary, upon the City's receipt of Nexus application to fmal any portion of its tentative tract map. Said estimate shall be conclusive. b. Nexus shall pay the City the estimated cost of this item not later than approval of the first final map for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupancy for the Nexus Project. Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and the City Manager or designee. . lCJ EXHIBIT C SCHEDULE FOR PUBLICLY -OWNED IMPROVEMENTS I. City shall complete item no. La. on Exhibit A of Publicly-Owned Improvements not later than June 2005. 2. City shall complete item no. I .b. on Exhibit A of Publicly-Owned Improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. 3. City shall complete item no. I.e. 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