HomeMy WebLinkAboutNS-2700 - Approving a Development Agreement Between City of Santa Ana and Steadfast CourtyYards
ORDINANCE NO. NS-2700
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA ANA AND STEADFAST
COURTYARDS, L.P.
THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS:
SECTION 1: The City Council hereby finds, determines and declares as follows:
A. The City is authorized pursuant to Government Code Sections 65864 through
65869.5 to enter into development agreements with persons having legal or equitable
interests in real property for the purpose of establishing certainty for both City and owner in
the development process.
B. The City enters into this Development Agreement pursuant to the provisions
of the Government Code and applicable City policies.
C. The Planning Commission has, following a duly noticed public hearing, on
September 12, 2005, recommended approval of this Development Agreement.
E. Entering into this Development Agreement would provide the City with
extraordinary and significant benefits that are of regional significance, relate to existing
deficiencies in public facilities, require the owners of the Cordoba for-sale condominium
project to contribute a greater percentage of benefits than would otherwise be required, and
represent benefits which would not otherwise be required as part of the development
process.
F. The City Council has held a noticed public hearing on this Ordinance, and has
considered all testimony presented thereto.
G. The City Council has, on October 3, 2005, approved a mitigated negative
declaration in conjunction with this Project and adopted a mitigation monitoring plan.
SECTION 2: The Development Agreement, a true and correct copy of which is
attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the
Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby
authorized and directed to cause this Development Agreement to be recorded with the County
Recorder's Office.
SECTION 3: This ordinance shall not be effective unless and until the ordinance
approving Amendment Application No. 2005-07 (SD-79) and the resolution approving
Ordinance NS-2700
Page 1 0141
Environmental Review No. 2005-18, Tentative Tract Map No. 2005-08, and Site Plan Review
No. 2005-03 both become effective. If said ordinance and resolution are for any reason held to
be invalid or unconstitutional by the decision of any court of competent jurisdiction, or
otherwise do not go into effect for any reason, then this ordinance shall be null and void and
have no further force and effect.
SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision'shall not affect the validity of the remaining portions of
this ordinance. The City Council of the City of Santa Ana hereby declares that it would have
adopted this ordinance and each section, subsection, sentence, clause, phrase or portion
thereof irrespective of the fact that anyone or more sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
ADOPTED this 17th day of October, 2005
~l~/~
guel A. Pulido
Mayor
i ! ~ "1 r/St ~r-
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
AYES:
Councilmembers: Alvarez. Bist. Bustamante. Christv. Garcia. Solorio (6)
NOES:
Councilmembers: None (0)
ABSTAIN:
Councilmembers: Pulido ( 1 )
NOT PRESENT: Councilmembers: None (0)
Ordinance NS-2700
Page 2 of 41
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-2700 to be the original ordinance adopted by the City Council
of the City of Santa Ana on October 17. 2005, and that said ordinance was published in
accordance with the Charter of the City of Santa Ana.
G..uJV ~ .
t:::f'l Clerk of the Coun~
City of Santa Ana
Date: (]p);. C)(p. Cb:::6
,
Ordinance NS-2700
Page 3 of41
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the COWlcil
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
STEADFAST COURTYARDS, L.P.
Dated: October 3, 2005
Ordinance NS-2700
Page 4 of 41
EXHIBIT I
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
STEADFAST COURTYARDS, L.P.
This DEVELOPMENT AGREEMENT is entered into between THE CITY OF
SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution
and laws of the State of California ("City") and STEADFAST COURTYARDS, L.P., a
California Limited Partnership ("Owner" or "Property Owner").
1. RECITALS. This Agreement is entered into with reference to the following
facts:
1.1 Purpose. The Purpose of this Agreement is to facilitate the development
of the mixed-use project contemplated by the City's Specific Development Zoning Designation
SD-79 (SD-79), Tentative Tract Map No. 2005-08 and Mitigated Negative Declaration ER No.
2005-18.
1.2 Code Authorization. The City is authorized pursuant to Government
Code Sections 65864 through 65869.5 to enter into development agreements with persons having
legal or equitable interests in real property for the purpose of establishing certainty for both the
City and Owner in the development process. The City enters into the Agreement pursuant to the
provisions of the Government Code and applicable City policies. The parties acknowledge:
(1)
the time of development.
This Agreement is intended to assure adequate public facilities at
(2) This Agreement is intended to assure development in accordance
with the City's General Plan, applicable Specific Plans and Specific Development District
No. 79, as created concurrently herewith by Ordinance No. NS-_.
(3) This Agreement will permit achievement of goals and objectives as
reflected in the City's General Plan, all applicable Specific Plans and Specific Development
District No. 79.
(4) Owner is required by existing City regulations to provide
mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through
the regulatory process:, as further provided in this Agreement.
(5) This Agreement will allow the City to realize extraordinary and
significant public infrastructure facilities and other supplemental benefits in addition to those
available through the existing regulatory process.
(6) Many of the extraordinary and significant benefits identified as
consideration to the City for entering into this Agreement are of regional significance, relate to
existing deficiencies in public facilities, require Owner to contribute a greater percentage of
benefits than would otherwise be required, and represent benefits which would not otherwise be
required as part of the development process.
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1.2 Owner. Owner represents and warrants that it has an equitable ownership
interest in the real property located in the City of Santa Ana, California, legally described on
Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B
attached hereto and incorporated herein (hereinafter the "Property'~, in that it has contracted to
purchase the Property from the City. The Property is approximately 1.1 acres in size and is
currently improved as a parking lot.
1.3 Approval of Owner. Owner further hereby represents that it has
approved this Agreement and is authorized to enter into this Agreement.
1.4 Planning Commission - Council Hearings. On September 12, 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. This public hearing was duly held, all public testimony was
attended to, and the Planning Commission recommended to the City Council of the City that it
execute this Agreement. On , 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 Plan(s) as well as all other applicable ordinances,
plans, policies and regulations of the City.
1.6 City Ordinance. On . 2005, the Council adopted Ordinance
No. NS-_ approving this Agreement. The ordinance becomes effective thirty (30) days
thereafter.
2. DEFINITIONS. In this Agreement, initially capitalized terms used but not
defined shall have the following meanings unless the context otherwise requires:
2.1 "Agreement" means this Development Agreement between the City and
Steadfast, and all amendments hereof that are properly approved and executed.
2.2
Agreement.
2.3
Agreement.
2.4
Agreement.
"City" has the meaning given such word in the preamble of this
"Council" has the meaning given such word in Section 1.4 of this
"Effective Date" has the meaning given such term in Section 4.2 of this
2.5 "Executive Director" means the Executive Director of the City's
Planning and Building Agency or designee.
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2.6 "Final Design" means the final design documents for a work of public art,
which is set forth in greater detail in Section 5.8 of this Agreement.
2.7 "Government Powers" has the meaning given such term in Section 5.13
of this Agreement.
2.8 "Map" means Tentative Tract Map No.2005-08, approved concurrently
with this Agreement.
2.9 "Mortgage" has the meaning given such word in Section 8.1 of this
Agreement.
2.10 "Mortgagee" has the meaning given such word in Section 8.2 of this
Agreement.
2.11 "Project" is the development of the Property as set forth in SD-79,
Tentative Tract Map No. 2005-08, Mitigated Negative Declaration No. ER 2005-18, and Site
Plan Review No. 2005-12.
2.12 "Property Owner" or "Owner" means Steadfast Courtyards, L.P., being
the person, persons, or entity having a legal or equitable interest in the Property, and includes
Steadfast Courtyards, L.P.'s successors in interest.
2.13 "Property" is the real property described in Exhibit A and referred to in
Exhibit B.
2.14 Pnblic Art" has the meaning given such term in Section 5.8 of this
Agreement.
2.15 Public Art Locational Plan means the conceptual Plan attached hereto as
Exhibit C. The parties recognize that the Locational Plan sets forth the general description of the
location of the Public Art required by this Agreement, and is subject to refinement at the time of
installation, by Agreement of the Owner and the Executive Director.
2.16 "Reserved Powers" has the meaning given such term in Section 5.2 of
this Agreement.
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Ordinance NS-2700
Page 7 of41
3. EXHmITS. The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
nP.~; g:n::.tinn n~~~riptinn in Sp.dion
A Property Legal Description 2.3
B Property Graphical Description (Site Plan) 2.3
C Public Art Locational Plan 2.15
D Off site Mitigation Measures 5.1.3
4. GENERAL PROVISIONS.
4.1 Property Subject to Agreement. Until released pursuant to the
provisions of Section 8.6 of this Agreement, the Property shall not be released from this
Agreement until Property Owner.
4.2 Effective Date; Duration of Agreement. The "Effective Date" of this
Agreement shall be the. date that the City Council ordinance adopting this Agreement becomes
effective, which date is thirty (30) days after the City Council meeting at which such ordinance is
adopted, unless this Agreement or Ordinance No. NS-_ is the subject of a referendum which
has received a prima facie sufficient number of signatures or unless its Effective Date is stayed
by order of a court with jurisdiction. The term of this Agreement shall be eight (8) years;
provided, however that the Owner may request one two-year extension from the Executive
Director, which request shall not be unreasonably denied; provided, however, that nothing herein
is intended nor shall it be in,terpreted to extend the period of validity of any approval issued in
conjunction with the City's Development Project Plan process or building permit, beyond local
requirement.
(b) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the
term of the Map, including any lot line adjustment or merger of lots (or any other tentative map
filed subsequent to the Effective Date of this Agreement), shall not expire during the term of this
Agreement.
(c) Notwithstanding subsections (a) or (b) hereof, if, at the end of the original
or any modified term, the Property is in the process of being developed, the term of this
Agreement shall be further extended until such in process construction is completed, not to
exceed an additional three years after expiration of the original or modified term.
(d) The expiration of this Agreement shall not terminate any land use
approvals approved concurrently with or subsequent to the approval of this Agreement, but shall
Ordinance NS-2700
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merely end the period as to which such approvals are vested against subsequent changes in
applicable law.
(e) Upon the expiration or termination of this Agreement for any reason, the
City and Owner and its successors and assigns agree to cooperate and execute any document
reasonably requested by the other party to remove this Agreement from the public records as to
the Property or any applicable portion thereof.
4.3 Assignment. Owner shall have the right to transfer or assign the Property,
in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or
corporation at any time during the term of this Agreement; provided, however, that except as
provided in Section 4.4 of this Agreement the rights of Owner under this Agreement may not be
transferred or assigned unless the written consent of the Council is first obtained and any transfer
or assignment of the rights under this Agreement shall include in writing the assumption of the
duties, obligations, and liabilities arising from this Agreement if the City grants written consent
to transfer the rights. The rights of the Owner hereunder shall not be subject to assignment by
attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such
assignment or transfer shall be wholly void and of no force and effect unless such written consent
thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any
duty, obligation or liability to City without the consent of the City. During the term of this
Agreement, any approved assignee or transferee of the rights under this Agreement shall observe
and perform all of the duties and obligations of Owner contained in this Agreement as such
duties and obligations pertain to the portion of the Property transferred or assigned. Any and all
approved successors and assignees of Owner shall have all of the same rights, benefits, duties,
obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any
subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
ownership, investment, use or development by them in accordance with the provisions of this
Agreement.
4.4 Assignment to Controlled Assignee. Notwithstanding the above, consent
shall not be required in connection with a Permitted Transfer (as herein defined) provided
Council is notified of such Permitted Transfer and furnished with copies of the fully executed
instruments effectuating same within fifteen (IS) business days after the effective date thereof.
For pnrposes hereof, the capitalized terms used herein shall be defined as follows:
(i) "Permitted Transfer" shall mean transfer of the Property and/or
Transfer (defined below) of direct or indirect interests in Owner if, following the transfer (a) the
Property remains under the Legal Control (defined below)Steadfast Residential Properties, a
, or (b) foreclosure pursuant to the provisions of Section 8.5 of this Agreement.
(ii) "Legal Control" shall mean the power or authority, directly or
indirectly through one or more intermediaries, through the ownership of voting securities, by
contract or otherwise, to direct the management, activities or policies of such person or entity.
(iii) "Transfer" shall mean any change in the direct or indirect
members, partners, shareholders or principals in the ownership of an entity or other ownership
components of such entity.
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Ordinance NS-2700
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4.5 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868;
provided, however, that as specified in Section 5.5.1 of this Agreement the Executive Director
may approve one or more minor changes in the Project only to the extent that such changes are
not required by State law or the City Municipal Code to be decided by the Zoning Administrator,
Planning Commission (or other City Commission) or City Council.
4.6 Enforcement. Notwithstanding Government Code Section 65865.4, this
Agreement is enforceable by any party to the Agreement in any manner provided by law. The
remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable
for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy,
action or inaction, or any legal proceeding arising out of this Agreement.
4.7 Hold Harmless. Property Owner agrees to and shall hold the City, its
officers, agents, employees, consultants, special counsel, and representatives harmless from
liability: (I) for damages, just compensation, restitution, judicial or equitable relief arising out of
claims for personal injury, including health, and claims for property damage, which may arise
from the direct or indirect operations of the Property Owner or its contractors, subcontractors,
agents, employees, or other persons acting on its behalf which relate to the Project; and (2)- from
any claim that damages, just compensation, restitution, judicial or equitable relief due by reason
of the terms of or effects arising from this Agreement, other than a breach by the City of its
obligations hereunder. Property Owner agrees to pay all costs for the defense of the City and its
officers, agents, employees, consultants, special counsel, and representatives regarding any action
for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have
been caused by reason of Property Owner's actions in connection with the Project, any third party
claims arising out of this Agreement, or any approval or certification by the City relating to the
Project. This hold harmless Agreement applies to all claims for damages, just compensation,
restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the
events referred to in this Section or due by reason of the terms of, or effects, arising from this
Agreement or any approval or certification by the City relating to the Project, regardless of
whether or not the City prepared, supplied or approved this Agreement, plans or specifications,
or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay
all costs for the defense of the City, excluding fees and costs for special counsel to be selected by
the City or other outside counselor consultants, if any, regarding any action by a third party
challenging the validity of this Agreement or any approval or certification by the City relating to
the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is
due to personal or property rights by reason of the terms of, or effects arising from this
Agreement. City may make all reasonable decisions with respect to its representation in any
legal proceeding.
4.8 Binding Effect of Agreement. To the extent not otherwise provided in
Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the
Agreement inure, to the parties' successors in interest.
Ordinance NS-2700
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4.9 Relationship of the Parties. The contractual relationship between the
City and Owner arising out of the Agreement is one of independent contractor and not agency.
This Agreement does not create any third party beneficiary rights.
4.10 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if
delivered in person or mailed by first class or certified mail, postage prepaid, or sent by
telefacsimile in the manner provided in this Section, to the following persons:
If to the City, to:
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
If to Owner, to:
Steadfast Courtyards, L.P.
clo Steadfast Companies
20411 S.W. Birch Street
Suite 200
Newport Beach, California 92660
Attn: Brian Lucas
telefacsimile (949) 852-0143
with a copy to:
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
Attn: Timi Anyon Hallem, Esq.
telfacsimile: (310) 312-4224
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
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Ordinance NS-2700
Page 110141
transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or
other communication shall be effective or deemed to have been given twenty-four (24) hours
after the time set forth on the transmission report issued by the transmitting facsimile machine,
addressed as set forth above. For purposes of calculating these time frames, weekends, federal,
state, County, or city holidays shall be excluded..
5. DEVELOPMENT OF THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. The rules, regulations and
official policies governing the permitted use(s) of the Property, with respect to and only with
respect to the permitted use(s), density, height, size of structures and intensity of use of the
Property, and provisions for reservation or dedication of land for public purposes and any other
exactions or mitigation measures applicable to the Project shall be those rules, regulations, and
policies applicable to the Property as of the Effective Date, including those set forth in District
Plan No. 79, as amended concurrently herewith.
5.1.1 Phasing of the Project. The City agrees and acknowledges that the
Project is to be constructed in one single phase.
5.1.2. Non-application of Changes in Applicable Rules. Any change in, or
addition to, 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 approvals granted to the Project as referenced in Section 2.4, shall not be
applied to the Project, except as provided in Sections 5.2 through 5.7 of this Agreement.
5.1.3 Offsite Mitigation Measures. The parties acknowledge and agree that
the offsite mitigation measures which must be funded or constructed by Owner are as set forth in
Exhibit D to this Agreement.
5.1.4 Limit on Fast Food and Take Out Restaurants. At no time during the
term of this Agreement 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 ifit provides sit-down dining areas and primary table service
for ordering and delivering meals and beverages, and take out service ancillary to such services.
Ordinance NS-2700
Page 120f41
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5.15 Point of Sale for Construction Materials. Owner acknowledges and
agrees that Owner shall use good faith commercially reasonable efforts, at no additional cost or
expense to Owner, to cause the "point of sale" for sales tax purposes for all purchases of building
or construction materials for the Project, including all related goods and services, to be the City
of Santa Ana. Notwithstanding the foregoing, City and Owner each acknowledge and agree that
Owner shall have no obligation to cause the City of Santa Ana to be the "point of sale" for such
purchase if doing so is likely to result in Owner's incurrence of material additional cost or
expense that Owner would otherwise not have incurred.
5.2 Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Government Code Section 65866, and Pardee Construction Co. v.
City of Camarillo (1984) 37 CaI.3d 465,208 CaI.Rptr. 228, 690 P.2d 701, the City retains the
right to enact police power regulations on matters not covered by this Agreement, including
without limitation the following ("Reserved Powers''):
a. Municipal laws and regulations which, Owner hereby agrees and
acknowledges, do not and shall not be interpreted to interfere with Owner's vested rights to
develop and use the Property in accordance with this Agreement. Owner and its successors and
assigns and all persons and entities in occupation of any portion of the Property shall comply
with such non-conflicting laws and regulations as may from time to time be enacted or amended
hereafter. Specifically, but without limitation on the foregoing, such non-conflicting laws and
regulations include the following:
(I) Existing taxes, assessments, fees and charges, except as otherwise
specifically provided in this Agreement;
(2) Building, electrical, mechanical, fire and similar codes based upon
uniform codes incorporated by reference into the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, which regulate the
manner in which business activities may be conducted or which prohibit any particular
type of business activity on a city-wide basis; and
(4) Procedural rules of general City-wide application.
b. No vested rights as to any requirements in this Section 5.2 either as to
existing or future regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, shall be subject to
applicable design standards and guidelines, including without limitation SD-79 and Chapter 41
of the Santa Ana Municipal Code, in effect at the time that any development approval shall be
sought for the Project or any unit or structure contained within the Project.
5.4 Retention of Use of Property As Public Parking Lot. Owner agrees to
retain the use of the Property as a public parking lot until it commences construction of the
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Ordinance NS-2700
Page 13 of 41
Project; provided, however, that Owner may close part or all of the public parking lot so long as
it necessary to perform testing on the Property necessary for geotechnical or foundation purposes,
or to investigate whether hazardous materials may exist on the Property. The limitation of this
Section 5.4 shall expire and be of no further force and effect upon Owner',s commencement of
construction on the Property pursuant to a City issued demolition, foundation or building permit.
5.5 Future Discretionary Approvals. This Agreement shall not prevent the
City, when considering requests for discretionary approvals not covered by this Agreement
subsequent to the Effective Date from applying new rules, regulations, and policies which are
applicable to the Property, including but not limited to, material changes in the general plans,
specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the
City from denying or conditionally approving any subsequent applications for discretionary land
use entitlements based on such existing or new rules, regulations, and/or policies; provided
however, that such new rules, regulations, and official policies are of general application to all
development within the City and are not imposed solely with respect to the Property. In
addition, this Agreement shall not prevent the City from exercising its police power to protect the
health, safety, and welfare of the public. This police power, exercised in accordance with
Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing
between the parties.
5.5.1 Minor Changes. Upon application of Owner, the Executive Director may
approve minor modifications to the discretionary approvals vested pursuant to this Agreement,
provided that such changes are consistent in scope and intention with such approvals. The
Executive Director has the sole and absolute discretion to determine what constitutes a "minor
modification."
5.6 Processing Fees. All fees and charges intended to cover the City's costs
associated with processing development of the Property, including but not limited to fees and
charges for applications, processing, inspections, plan review, plan processing, and/or
environmental review, which are existing or may be revised or adopted during the term of this
Agreement, shall apply to the development of the Property.
5.7 Amendments or Additions to Citywide Fee Programs. This Agreement
shall not preclude the inclusion of and changes to fee programs, taxes whether special or general,
or assessments (hereafter collectively referred to as "fees") adopted by the City after the Effective
Date, which shall be applicable to the Project or the Property provided that they (I) are standard
fees applicable to all development in the City (although actual fee rates may vary within the City
where bona fide Citywide fee zones have been established), (2) are not applicable primarily or
only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project
impacts which were analyzed in the mitigated negative declaration prepared for the Project, or
(b) duplicate any exactions, project design features, conditions of approval, Agreements, or
mitigation measures contained in the Development Plan or this Agreement.
5.8 Development, Construction and Completion of Work of Public Art.
In consideration for the extraordinary and significant benefits to the City set forth in this
Agreement, the Owner has been legally vested under Section 5.1 with regard to the permitted
uses ofland, density, and intensity of use, Owner shall include within the Project at one or more
Ordinance NS-2700
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prime locations visible to the public from currently existing public right-of-way, one or more
permanent works of public art (the "Public Art"). The Owner shall design and/or construct the
facilities specified below prior to the corresponding triggering event specified in Section 5.8.1
below. The Public Art shall conform in all respects to Exhibit C of this Agreement, the "Public
Art Locational Plan."
5.8.1 Work of Public Art.
F::lC":;l;tip.~ to Hf": rnn.c::tn1C~tp.tf
Triggf":ring FVf>:nt (Ii: g . Np.w TT.c::p. or Np.w Arf~~)
I. Submit Final Design of Public Art.
Final design must conform to Public Art
Locational Plan.
2. Install Public Art.
Prior to issuance of first Building Permit
Prior to the City's issuance of Certificate of Use
and Occupancy for any building.
With respect to the Final Design, Owner shall complete all construction and
development, shall submit all plans, drawings, and other documents, and perform all of its
obligations under this Agreement within the times specified above. During periods of
construction of the work of public art encompassed in the Public Art Locational Plan, Owner
shall submit to the City a written report of the progress of the construction when and as
reasonably requested by the City. The report shall be in such form and detail as may be
reasonably required by the City, and shall include a reasonable number of construction
photographs (if requested) taken from the last report by Owner. Development scheduling or date
or times of performance may be subject to revision from time to time if first mutually agreed to
in writing. Such revisions do not constitute amendments requiring further notice and public
hearing.
5.8.2 Inclusionary Housing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit (or live-work unit) as a condition of issuance of each building
permit. 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.
5.8.4. Park Development Fee. The Owner shall pay an "in lieu" fee in
furtherance of the standard established by section 34-200 et seq. of the Santa Ana Municipal
Code, in an amount equal to $345,800.00 (209.1 square feet of park space per residential unit x
$36.75 per square foot x 45 residential units); provided, however that the fee maybe increased
yearly by the average rate of increase in land costs in the City of Santa Ana, as that increase is
established by the annual change in the "Construction Cost Index-Los Angeles," published by
Engineering News-Record, or substitute index chosen by the Executive Director should this
index is discontinued. The fee shall be paid prior to issuance of the first building permit for that
II
Ordinance NS-2700
Page 150f41
Project. The City shall use not more than twenty five percent (25%) of the Park Development
Fee for the acquisition of the land for parks and the construction of capital improvements and
deferred maintenance at existing parks at any location within the City and not less than seventy
five percent (75%) of the 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, with priority given to Santiago Park.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and
Restrictions (CC&R's) must be provided and approved by the Executive Director for the project
prior to the issuance of the first building permit. Such CC&R's must contain at a minimum, the
following:
(1) No more than four residents per residential or live-work unit;
except that there shall be no more than five residents per two bedroom
residential unit.
(2) All residential and live-work units shall not be sold by the original
buyer for one year from his or her close of escrow, unless the original
buyer is transferred out of the Southern California region.
(3) Use Restriction for Live-Work Units. The live-work units in the
Project must remain as a live-work community. The work component
shall be limited to one of the allowable uses as specified in the Specific
Development (SD-79) zoning district.
(4) Repair of common areas, stairs, FF&E and walls will be specified
in the CC&R's in the event of damage.
(5) The CC&R's shall provide notice to prospective owners of the
urban character of the City and this area, including but not limited to the
permitted uses of the property and buildings in the immediate area of the
development (e.g.., Bowers Museum of Cultural Art, day spa, Saint
Joseph's Ballet, Kidseum, carwash, Main Place Regional Shopping Mall,
and surrounding property zoned and/or devoted to commercial use), and
shall provide a release of all claims against the City which may arise from
or relate to the disclosed matters.
(6) The CC&R's shall reflect that ground floor space in the live-work
units shall be restricted to work/retail activities.
(7) The CC&R's shall reflect that 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.
Ordinance NS-2700
Page 16 of 41
12
(8) 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
affect the provisions described in this Section 5.8 shall require
written approval by the Executive Director
5.9 Responsibility For Costs of Work Of Public Art. The City and Owner
agree that Owner shall be responsible for all costs associated with the design, construction,
maintenance and repair ofthe work of public art provided for in the Public Art Locational Plan.
5.10 City to Receive Contract Documents. Owner shall furnish the City,
upon written request, copies of contracts and supporting documents relating to the work of public
art.
5.11 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's existing regulatory process
shall be governed by the terms of those approvals, and in no event shall such conditions be
affected by the termination, cancellation, rescission, revocation, or default or expiration of this
Agreement.
5.12 Moratoria. In the event an ordinance, resolution or other measure is
enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate,
amount, timing, sequencing, or phasing of the development or construction of the Project on all
or any part of the Property or the implementation or construction of a mitigation measure, the
City agrees that such ordinance, resolution or other measure shall not apply to the Project, the
Property or this Agreement.
5.13 Compliance With Governmental Requirements. Owner shall carry out
the design, construction, and operation of the Project in substantial confonnity with all applicable
laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the
State of California, the County of Orange, the City, or any other political subdivision in which
the Property is located, and of any other political subdivision, agency, or instrumentality
exercising jurisdiction over the City, the Owner or the Property, including all applicable federal,
state, and local occupation, safety and health laws, rules, regulations and standards, applicable
state and labor standards, applicable prevailing wage requirements, the City zoning and
development standards, City permits and approvals, building, plumbing, mechanical and
electrical codes, as they apply to the Property and the Project, and all other provisions of the City
and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled
and handicapped access requirements, including, without the limitation, the Americans With
Disability Act, 42 U.S.C. 9 12101 et seq., Government Code 9 4450 et seq., and the Unruh Civil
Rights Act, Civil Code 9 51 et seq. ("Governmental Requirements").
13
Ordinance NS-2700
Page 170141
6. ANNUAL REVIEW.
6.1 City and Owner Responsibilities. The City shall, at least every twelve
(12) months during the term ofthis Agreement, review the extent of good faith substantial
compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section
65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good
faith compliance with the terms ofthe Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in compliance with the
Agreement after the annual review set forth in Section 6.1 above, the City shalI, 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 Executive Director, the Agreement remains in effect and Owner is not in default. Owner
may record the Letter in the Official Records of the County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
7. DEFAULT.
7.1 Owner Events of Default. Property Owner is in default under this
Agreement upon the happening of one or more of the following events or conditions (each, an
"Owner Event of Default''):
(1) If a material warranty, representation, or statement made or
furnished by Property Owner to the City is false or proves to have been false in any material
respect when it was made; or
(2) A fmding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 and Section 6.1
of this Agreement that upon the basis of substantial evidence the Property Owner has not
complied in good faith with one or more of the material terms or conditions of this Agreement;
(3) Failure to comply with Governmental Requirements;
(4) Any other event, condition, act, or omission which materially
interferes with the intent and objectives ofthis Agreement.
7.2 Procedure upon Default.
(1) Upon an Owner Event of Default, the City through the Executive Director
shall submit to Owner, a written notice of default, in the manner provided in Section 4.10,
identifying with specificity the nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured. Upon receipt of the notice of default, the Owner
shall cure the identified defau1t(s) at the earliest reasonable time after receipt of the notice of
Ordinance NS-2700
Page 180f41
14
default and shall complete the cure in any event not later than one hundred and twenty (120) days
after receipt of the notice of default, or such longer period as is reasonably necessary to remedy
such default(s), provided that the Owner shall continuously and diligently pursue such remedy at
all times until such default(s) is cured. If Owner has failed to remedy or diligently proceed to
remedy such default(s) after proper notice and expiration of said one hundred and twenty (120)
day cure period or such extended period as provided herein, the City may terminate or amend this
Agreement in accordance with the procedure adopted by the City. Failure or delay in giving
notice of default- shall not constitute a waiver of any default, nor shall it change the time of
default.
(2) If after the cure period has elapsed, the Executive Director finds
and determines that Owner has not cured the default pursuant to this Section 7.2, Owner shall be
entitled to appeal that finding and determination to the City Council by filing an appeal with the
City Clerk, if at all, within fourteen (14) days after the mailing of such finding and determination
to Owner, or its successors, transferee, and/or assignees, as the case may be. The City Council
shall act upon the finding and determination of the Executive Director within ninety (90) days
after the filing of such appeal. In the event of a finding and determination that all defaults are
cured, there shall be no appeal by any person or entity.
(3) The City does not waive any claim of defect in performance by
Property Owner, if on periodic review the City does not propose to modifY or terminate this
Agreement.
(4) Non-performance shall not be excused because ofa failure ofa
third person.
(5) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Owner, shall be sufficient to terminate this Agreement
and a hearing on the matter shall not be required.
(6) Adoption of a law or other governmental activity making
performance by the Owner unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the Property Owner.
(7) All other remedies at law or in equity which are not inconsistent
with the provisions of this Agreement are available to the parties to pursue in the event there is a
breach.
7.3 Damages upon Termination. In no event shall Property Owner be
entitled to any damages against the City upon termination of this Agreement for an Owner Event
of Default.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any default or breach, to
specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any
threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the
purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County
15
Ordinance NS-2700
Page 19of41
of Grange, State of California, or in the Federal District Court in the Central District of
California, Southern Division.
8. ENCUMBRANCES AND RELEASES ON PROPERTY.
8.1 Discretion to Encumber. This Agreement shall not prevent or limit
Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion
of the Property or any improvement on the Property by any mortgage, deed of trust, or other
security device (or any number of them) securing financing with respect to the Property or its
improvement (any such encumbrance, a "Mortgage").
8.2' Entitlement to Written Notice of Default. The mortgagee of a mortgage
or beneficiary ofa deed of trust encumbering the Property or any part thereof and their successors
and assigns ("Mortgagee") shall, upon written request to the City, be entitled to receive from the
City written notification of any Owner Event of Default.
8.3 Performance of Covenants. The Mortgagee shall have the right, but no
obligation, to perform any term, covenant or condition and to remedy any Owner Event of
Default hereunder within the time periods specified herein, and the City shall accept such
performance with the same force and effect as if furnished by the Owner; provided, however, that
said Mortgagee shall not thereby or hereby be subrogated to the rights of the City.
8.4 Default by the Owner. In the event of an Owner Event of Default that
has not been cured by the Owner or as to which there is no cure period hereunder, the City agrees
not to terminate this Agreement (1) unless and until the City provides written notice of such
default to any Mortgagee and such Mortgagee shall have failed to cure such Owner Event of
Default within ninety business days after the later of delivery of such notice or expiration of any
applicable Owner cure period, and (2) as long as:
(a) In the case ofan Owner Event of Default that cannot practicably be
cured by the Mortgagee without taking possession ofthe Property (which defaults shall not
include defaults "not susceptible of being cured" as defined below), (x) the Mortgagee has
delivered to the City, prior to the date on which the City shall be entitled to give notice of
termination, a written instrument wherein the Mortgagee unconditionally agrees that (subject to
such delays as may be incident to obtaining a relief from stay in the case of a
bankruptcy/dissolution event) it will commence and diligently pursue cure of such Owner Event
of Default promptly following its obtaining possession and; (y) said Mortgagee shall proceed
diligently to obtain possession of the Property (including possession by receiver) (subject to such
delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution
event) and, upon obtaining such possession, shall proceed diligently to cure such Owner Event of
Default; and
(b) In the case of an Owner Event of Default that is not susceptible to
being cured by the Mortgagee, the Mortgagee shall institute foreclosure proceedings and
diligently prosecute the same to completion (subject to such delays as may be incident to
obtaining a relief from stay in the case of a bankruptcy/dissolution event) (unless in the meantime
it shall acquire the Owner's right, title and interest hereunder, either in its own name or through a
Ordinance NS-2700
Page 20 of41 16
nominee, by assigrirnent in lieu of foreclosure) and upon such completion of acquisition or
foreclosure such Owner Event of Default shall be deemed to have been cured.
The Mortgagee shall not be required to obtain possession or to continue in
possession as Mortgagee of the Property pursuant to Subsection 8.4( a) above, or to continue to
prosecute foreclosure proceedings pursuant to Subsection 8.4(b) above, if and when such Owner
Event of Default shall be cured. Nothing herein shall preclude the City from exercising any of its
rights or remedies with respect to any other Owner Event of Default during any period of such
forbearance, but in such event the Mortgagee shall have all of its rights provided for herein. If
the Mortgagee, its nominee, or a purchaser in a foreclosure sale, shall acquire title to Owner's
right, title and interest hereunder and shall cure all Owner Events of Defaults that are susceptible
of being cured by the Mortgagee or by said purchaser, as the case may be, then prior Owner
Events of Default that are not susceptible to being cured by the Mortgagee or by said purchaser
shall no longer be deemed Owner Events of Default hereunder.
Except as set forth herein, nothing contained herein shall require any Mortgagee
to cure any Owner Event of Default.
8.5 Foreclosure. Foreclosure of any Mortgage, or any sale thereunder,
whether by judicial proceedings or by virtue of any power contained in a Mortgage, or any
conveyance of the Project from the Owner to a Mortgagee or its designee through, or in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of
the City or constitute a breach of any provision of or a default under this Agreement; and upon
such foreclosure, sale or conveyance the City shall recognize the purchaser or other transferee in
connection therewith as the Owner hereunder provided that such purchaser or transferee assumes,
subject to the terms of Section 8.4 above, each and all of the obligations of the Owner hereunder
pursuant to an assumption agreement satisfactory to the City. If any Mortgagee or its nominee or
assignee shall acquire the Owner's right, title and interest hereunder as a result of a judicial or
nonjudicial foreclosure under any Permitted Mortgage, or by means of a deed in lieu of
foreclosure, or through settlement of or arising out of any pending or contemplated foreclosure
action, such Mortgagee shall thereafter have the right to assign or transfer the Owner's right, title
and interest hereunder to an assignee upon obtaining the City's consent with respect thereto,
which consent shall not be unreasonably withheld or delayed. Upon such acquisition of the
Owner's right, title and interest hereunder as described in the preceding sentence by either
Mortgagee, or the assignee or nominee of Mortgagee, or the purchaser from Mortgagee, assignee
or nominee, the City shall inunediately execute and deliver a new agreement or amend this
Agreement with such party, upon the written request therefor by such party given not later than
one hundred twenty (120) days after such party's acquisition of the Owner's right, title and
interest hereunder. Subject to the terms of Section 8.4 above, such new agreement or amended
Agreement shall be substantially the same in form and content to the provisions of this
Agreement, except with respect to the parties thereto, and the elimination of any requirements
which have been fulfilled by the Owner prior thereto, and said agreement shall have priority
equal to the priority of this Agreement. Upon execution and delivery of such new agreement or
amended Agreement, the City shall cooperate with the new owner, at the sole expense of said
new owner, in taking such action as may be necessary to cancel and discharge this Agreement
and to remove Owner named herein from the Property.
17
Ordinance NS-2700
Page 21 of41
8.6 Releases. The City agrees that upon written request of Property Owner
and payment of all fees and performance of the requirements and conditions required of Owner
by this Agreement with respect to the Property, or any portion thereof, the City shall execute and
deliver to Owner appropriate release(s) offurther obligations imposed by this Agreement in form
and substance acceptable to the Orange County Recorder or as may otherwise be necessary to
effect the release.
9. MISCELLANEOUS PROVISIONS.
9.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than
one signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement
constitutes the entire understanding and Agreement of the parties with respect to the matters set
forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements
between the parties respecting this Agreement, including without limitation the Original
Agreement. All waivers of the provision of this Agreement must be in writing and signed by the
appropriate authorities of the City or of Owner. All amendments to this Agreement must be in
writing signed by the appropriate authorities of the City and Owner, in a form suitable for
recording in the Official Records of Orange County, California. Within ten (10) days following
the Effective Date, a copy of this Agreement shall be recorded in the Official Records of Orange
County, California. Upon the completion of performance of this Agreement or its revocation or
termination, an appropriate Certificate of Completion acknowledging such occurrence signed by
the appropriate agents of Owner and the City shall be recorded in the Official Records of Orange
County, California.
9.3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section
65864 et seg.; (b) the City has no interest in or responsibilities for or duty to third parties
concerning any improvements to the Property or in connection with the Project; and (c) Owner
shall have the full power and exclusive control of the Property subject to the obligations of
Owner set forth in this Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this
Agreement are part of this Agreement.
9.5 Captions. The captions of this Agreement are for convenience and
reference ouly, and shall not define, explain, modify, construe, limit, amplify, or aid in the
interpretation, construction, or meaning of any of the provisions of this Agreement.
9.6 Consent. Where the consent or approval of a party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld.
Ordinance NS-2700
Page 22 of 41
18
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 No Reliance By One Party On The Other. Each party has received
independent legal advice from its attorneys with respect to the advisability of executing this
Agreement and the meaning of the provisions hereof. In addition, the provisions of this
Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question.
9.11 Arms Length Transaction. Each party represents and warrants to the
other the following: it has carefully read this Agreement, and in signing this Agreement it does
so with full knowledge of any rights which it may otherwise have, and it has freely signed this
Agreement without any reliance upon any agreement, promise, statement or representation by or
on behalf of the other party or its agents, employees, or attorneys, except as specifically set forth
in this Agreement, and without duress or coercion, whether economic or otherwise.
9.12 Recording. The Clerk of the Council shall cause a copy ofthis
Agreement to be recorded with the Office of the County Recorder of Orange County, California,
within ten (10) days following the Effective Date.
19
Ordinance NS-2700
Page 23 0141
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana, acting by and through its City Manager, pursuant to Ordinance No. NS- , authorizing
such execution, and by Property Owner.
Dated this _ day of
,2005.
THE CITY OF SANTA ANA
By
DAVID N. REAM
City Manager
Approved as to Fonn:
By
JOSEPH W. FLETCHER
City Attorney
STEADFAST COURTYARDS, L.P.,
A California Limited Partnership
,f
By: \
Name.
Title:
Ordinance NS-2700
Page 24 of 41
20
8T A TE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this ~y of '9-,,"lrem'n....... , 200S, before me,
L'IS;:" \f'\~t\\:... , a Notary Public in ana for said state, personally appeared
'R. ~.::)"- \ l\,~~~ ' personally known to me (or proved to me on the basis of
satisfactory evidence) 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.
(~,~\j~
o1\'.R Y PUBLIC
)
) ss.
COUNTY OF LOS ANGELES )
On this day of ,200_, before me,
, a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the of ., the
that executed the within instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board.
WITNESS my hand and official seal.
NOTARY PUBLIC
Ordinance NS-2700
Page 25 of41
EXHIBIT A
Property Legal Description
Orange County Assessors Parcel Numbers 002-162-05, 002-162-
06,002-162-07,002-162-30,002-162-31, 002-162-32, 002-162-33
and 002-162-34
Ordinance NS-2700
Page 26 of 41
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Page 37 of 41--
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MAP NO. 16848
PURPOSES
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FOR CONDOMINIUM
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EXHIBIT C
Public Art Locational Plan
1. Public art valued at one-half of one percent (0.5%) of the project building permit valuation is
required. Public art shall be comprised of a single art piece (or two or more pieces, as agreed
to by the City's Planning Commission and Owner) to be placed along Main Street or 20th
Street, with the final location to be determined as specified below. The public art should
invite participation and interaction, inspire, add local meaning, interpret the community by
revealing its culture or history, and/or capture or reinforce the unique character of the new
place. A comprehensive Public Art Plan indicating compliance with this requirement, and
which proposes specific pieces of art for specific locations or applications, shall be submitted
to the Planning Commission in conformance with Section 5.8.1 of this Agreement. All
public art approved by the Planning Commission in the Public Art Plan shall be completely
installed as provided in Section 5.8.1 of this Agreement. Review and approvals required by
the Planning Commission pursuant to Sections 5.8, 5.8.1 or this Exhibit C may be delegated
to a committee of same duly constituted pursuant to the Planning Commission's bylaws.
2. Art should be sited to complement features such as plaza or architectural components so that
the art is an integral part of the development site.
3. Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4. No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
5. All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination.
6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the
. project site and may not be removed without the approval of the Planning Commission.
7. Expenses Not Allowed from Art Allocation
. 1. Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integral to the illumination of the art piece.
VI. Publicity, public relations, photographs, educational materials, business letterhead
or logos bearing artwork image.
Ordinance NS-2700
Page 39 of 41
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
8. To be eligible, the proposed work of public art shall not be:
i. a mass produced object from a standard design;
ii. a reproduction, whether produced by mechanical or other means, of an original
work of art;
111. elements of building, designed by the building's architect, as opposed to a public
artist commissioned for the express purpose of creating a unique work of public
art; nor
IV. a water feature, in whole or in part.
Ordinance NS-2700
Page 40 of41
EXHIBIT D
Offsite Mitigation Measures
Tmprnvp.mp.nt
T .nr.~tinn
1. Install new traffic signal
Main Street N/O 20th Street
2. Reconstruct street pavement
19th Street & 20th Street to
centerline of road at Project
Frontage
19th Street & 20th Street at
Project Frontage
Main Street at Project
Frontage
3. Construct sidewalk and
parkway/install street trees
4. Construct sidewalk and access
ramps
~tp.~nf~d to ron~tn](~t or
P.y f'ity to f'on.tnl~t
City to construct (prelim-
inary estimate of cost =
$260,000)
City to construct (prelim-
inary estimate of cost =
$70,000)
Steadfast to construct
Steadfast to construct
I. For those items which the City is constructing and for which Steadfast is paying
the full cost, Steadfast shall pay the City as follows:
a. For Item No.1 ("Install new Traffic Signal"), the City shall provide
Steadfast with a final, updated estimate of these costs, if necessary, no later than forty-five (45)
days after the Effective Date. Steadfast shall pay the City monies equivalent to the final updated
estimate, or if one is not provided the preliminary estimate, sixty (60) days from the Effective
Date.
b. For Item No.2 ("Reconstruct Street Pavement") the City shall provide
Steadfast with a final, updated estimate of these costs, if necessary, no later than five (5) business
days before approval of the first final map. Steadfast shall pay the City monies equivalent to the
final updated estimate, or if one is not provided the preliminary estimate, before approval of the
first final map for the Project.
c. The City shall complete construction of these items prior to the first
certificate of occupancy for the Project.
d. The City' final, updated estimates, or if none is provided by the deadlines
set forth above, the preliminary estimates, shall be final and conclusive.
2. For those items which Steadfast is constructing, Steadfast shall complete
construction prior to approval of its first final map for the Project; provided, however, that
Steadfast shall have the unilateral right to extend this deadline to the first certificate of occupancy
for the Project upon execution of the City's standard subdivision improvement agreement to be
entered into pursuant to California Government Code 9 66462(a)(I).
Any deadline pursuant to this Exhibit D may be extended by mutual written agreement of
Steadfast and the City Manager or designee.
Ordinance NS-2700
Page 41 of41