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HomeMy WebLinkAbout FULL PACKET_2009-03-16ROH 3/2/09 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTERS 22 AND 41 OF THE SANTA ANA MUNICPAL CODE TO UPDATE THE CITY'S REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE TECHNICIANS THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Provisions of the General Plan of the City and Chapter 41 of the Santa Ana Municipal Code do not specifically identify massage parlors as a land use or specifically designate zoning districts throughout the City where massage parlors may or may not be permitted. B. For this reason, on May 21, 2007, at a regularly scheduled public meeting, the City Council adopted Ordinance No. NS-2744, which established a moratorium to prohibit the establishment of any new or expansion of any existing massage parlor, or issuance of new (non-replacement) massage technician permit. Thereafter, on June 27, 2007, at a regularly scheduled, duly noticed public hearing, the City Council adopted Ordinance No. NS 2753, which extended this moratorium until May 17, 2008. Thereafter, on May 5, 2008, at a regularly schedules, duly noticed public hearing, the City Council adopted Ordinance No. NS 2766, which again extended this moratorium until May 5, 2009. C. Because of its age, current provisions of the Santa Ana Municipal Code fail to fully take into account the potential impacts associated with the establishment of massage parlors and fail to address the needs of the City and its residents today and in the future. As such, provisions of the General Plan and/or the Santa Ana Municipal Code ("the Code"), including Chapters 22 and 41, need revision in order to respond to recent concerns relating to the potential establishment of new massage parlors, expansion of existing massage parlors, or adding new massage technicians, within the City. Ordinance No. NS-XXX 11 A-1 Page 1 of 36 D. Given these concerns, the City Council requested that a study be undertaken of the current provisions of the General Plan and Chapters 22 and 41 of the Code to classify massage parlors and determine where, and under what conditions additional massage parlors should be permitted. In addition, the City Council requested an analysis of the current permitting scheme for permitting of massage technicians to determine whether they fully meet the needs of the City's residents. Since adoption of Ordinance Nos. NS 2744, NS-2753, and NS-2766, staff has held interagency meetings and has completed a study of the current provisions of the General Plan and Chapter 41 of the Code to classify massage parlors and to determine where and under what conditions such businesses should be permitted in the City. These efforts have led to preparation of proposed amendments to Chapters 22 and 41 of the Santa Ana Municipal Code. At a meeting held on April 22, 2008, these proposed amendments were shared with interested owners and operators of massage establishments at a public meeting held in City Hall. The City's Planning Commission held a duly noticed public hearing on these proposed changes to the Santa Ana Municipal Code on April 28, 2008; after closing the public hearing and deliberating the Commission unanimously continued consideration of these proposed amendments. At its meeting of January 12, 2009, the City's Planning Commission amended and approved the proposed amendments to Chapters 22 and 41 of the Santa Ana Municipal Code. E. Without adoption of this ordinance, properties in the City would quickly receive entitlements to establish massage parlors, expand existing massage parlors or persons would obtain permits to operate as massage technicians, despite the fact that the city council has determined that the Code is in need of updating and has directed that a study be done to recommend new standards and revise the Code to address concerns created by new and expanded permits for massage related activities. F. While some massage parlors are beneficial to the community and offer needed services, others in Southern California have been associated with a number of detrimental impacts such as prostitution, late hours of operation, reduced property values and noise. G. Chapter 22 of the Code, which regulates massage establishments and massage technicians and is enforced by the Police Department, has been substantially unchanged since 1976. For comparison, Anaheim, Orange and Costa Mesa have all updated their massage regulations within the last several years. Ordinance No. NS-XXX Page 2 of 36 11 A-2 H. In order to prevent frustration of said studies, hearings, draft code amendments and the implementation thereof, the public interest, health, safety and welfare require the immediate enactment of this ordinance. The absence of this ordinance would create a serious threat to the orderly and effective implementation of any code amendments or general plan amendments which may be adopted by the city as a result of the studies in that the establishment or construction of massage parlors may be in conflict with or frustrate the contemplated updates and revisions to the Code, general plans or specific plans. Moreover, permitting massage parlors to be established or expanded, or new massage technicians to be permitted during said studies and implementation would create impacts on the public health, safety and welfare that the city council, in adopting this ordinance, has found to be unacceptable. The Request for Council Action for this ordinance dated March 2, 2009 and duly signed by the City Manager shall, by this reference, be incorporated herein, and together with this ordinance, any amendments or supplements, and oral testimony constitute the necessary findings for this ordinance. Section 2. The City Council has reviewed and considered the information contained in the initial study and the negative declaration prepared with respect to this Ordinance. The City Council has, as a result of its consideration and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, a Negative Declaration adequately addresses the expected environmental impacts of this Ordinance. On the basis of this review, the City Council finds that there is no evidence from which it can be fairly argued that the project will have a significant adverse effect on the environment. The City Council hereby certifies and approves the negative declaration and directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Pursuant to Title XIV, California Code of Regulations ("CCR") § 753.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 753.5, the payment of Fish and Game Department filing fees is not required in conjunction with this project. Ordinance No. NS-XXX 11 A-3 Page 3 of 36 Section 3. Section 22-1 of the Santa Ana Municipal Code is hereby amended to add pertinent definitions to this chapter, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-1. Definitions. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter: (a) Massage means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliances, or with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, ointments, or other similar preparations commonly used in this practice. (b) Massage establishment means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths as the principal functions. (c) Massage technician means any person who, for any form of consideration whatsoever, gives or administers to another person a massage as defined or baths as the principal function. (d) Recognized school of massage means any school or institution of learning which teaches the theory, ethics, practice, profession, or work of massage, which school or institution has been approved pursuant to the California Education Code and which requires a resident course of study of not less than one thousand (1,000) hours to be given in not less than six (6) calendar months before the student shall be furnished with a diploma or certificate of graduation. Schools offering a correspondence or online course not requiring actual attendance shall not be deemed a recognized school. The City of Santa Ana shall have a right to confirm that the applicant has actually attended class in a recognized school. (e) Ancillary Use -Any establishment that provides massage services as an accessory or complementary use to other health or beauty services, and that employs no more than two licensed massage technicians, is subject to any zoning and Ordinance No. NS-XXX Page 4 of 36 11 A-4 land use regulations as required by the Planning & Building Agency. (f) Employee -Includes every owner, partner, operator, manager, supervisor and worker, whether paid or not, who renders services of any nature or is otherwise employed in the operation of a massage establishment. For purposes of this chapter, the term employee shall also include massage technicians who provide massage services as independent contractors to a massage establishment. (g) Manager- Means any person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing daily operations. Evidence of management may include, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules, or purchase supplies. A manager may also be an owner. (h) Chair Massage - A seated chair massage is where a patron receives a massage while fully clothed in a public or semipublic area. The areas massaged are the head, neck, back and/or arms only. Section 4. Section 22-2 of the Santa Ana Municipal Code is hereby amended to add a subsection, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-2. Massage establishment permit required. (a) It shall be unlawful for any person, association, partnership or corporation to engage in, conduct or carry on, in or upon any premises within the City of Santa Ana, the business of a massage establishment without a permit issued pursuant to the provisions of this chapter for each and every such massage establishment. (b) Any healing arts professional or other State licensed practitioner listed in section 22-6 of this chapter who employs, or contracts with, more than two (2) massage technicians must obtain a massage establishment permit. Section 5. Section 22-2.1 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Ordinance No. NS-XXX 11 A-5 Page 5 of 36 Sec. 22-2.1. Massage establishment permit -term. (a) Permits for massage establishments shall be for a period of one (1) year, unless sooner revoked as set forth in this chapter. (b) No permit granted herein shall confer any vested right to any person or business for more than the limit period. All massage operators and technicians subject to this chapter, shall comply with the provisions of this chapter and as may be amended hereafter. Section 6. Section 22-3 of the Santa Ana Municipal Code is hereby amended to add and revise requirements for massage establishment permits, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-3. Massage establishment permit application. (a) Any person, corporation or partnership desiring to obtain a permit to operate a massage establishment shall make application to the chief of police or his designated representative. Prior to submitting such application a nonrefundable fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of investigation and report required by this chapter. The department of finance shall issue a receipt showing that such permit application fee has been paid. The receipt, or a copy thereof, shall be supplied to the chief of police at the time such application is submitted. (b) The application for permit does not authorize conducting a massage establishment business until such permit has been granted. (c) Each applicant for a massage establishment permit shall furnish the following information: (1) The full true name and any other names used by the applicant. (2) The present address and telephone number of the applicant. (3) The previous addresses of applicant, if any, for a period of ##ree E3five (5) years immediately prior to the date of the application and the dates of residence at each. (4) Acceptable written proof that the applicant is at least eighteen (18) years of age. (5) The applicant's height, weight, color of eyes and hair, and date of birth. Ordinance No. NS-XXX Page 6 of 36 11 A-6 (6) Two (2) photographs of the applicant at least two (2) inches by two (2) inches taken within the last ~;~ ~~~ rv,^^+"°.thirty (30) days. (7) Business, occupation or employment history of the applicant for the }hrcrntic°Tvfive (5) years immediately preceding the date of application. (8) The business license history of the applicant and whether such applicant, in previously operating in this or any other city, state or territory under license, has had such license revoked or suspended, the reason +h~herefore, and the business activity or occupation subsequent to such action of suspension or revocation. (9) All convictions, including ordinance violations, exclusive of traffic violations, stating the dates and places of any such convictions. (10) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation, and the names and addresses of each of its current officers and directors, and each stockholder holding more than five (5) per cent of the stock in the corporation. If the applicant is a partnership, the applicant shall set forth the name, residence address and dates of birth of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk. If one (1) or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply. The applicant corporation or partnership shall designate one (1) of its officers or general partners to act as its responsible managing officer. The responsible managing officer may complete and sign all applications on behalf of the corporate officers and partners. Such designated persons shall complete and sign all application forms required of an individual applicant under this chapter, but only one (1) application fee shall be charged. (11) The name and address of the owner and lessor of the real property upon which the business is to be conducted, and a notarized copy of the lease or rental agreement-, including any addendums to the agreement. (12) Such other identification and information, including written waivers pursuant to the Education Code, as the police department may require in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application. Ordinance No. NS-XXX 11 A-7 Page 7 of 36 (13) T"-~;~Proof of ~ submission to the a~l+sa~t +^ f~,~California Department of Justice a complete set of fingerprints ~•~"°n ^°°~°~taken by a police department or California Department of Justice approved contactor. The applicant shall be responsible for payment of any fingerprinting fee. (14) A site plan depicting the building and/or unit proposed for the massage establishment and a dimensional interior floor plan depicting how the massage establishment will comply with all applicable requirements of this chapter. (15) The complete name, date of birth, phone number and residence address of the proposed on-site manager who will be principally in charge of the operation of the establishment, and any other information as requested by the Massage Establishment application. A manager must possess the same qualifications as an owner. (16) A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. (d) The applicant, if an individual, or designated responsible managing officer, if a partnership or corporation, shall personally appear at the police department of the City of Santa Ana and produce proof that the required application fee has been paid and shall present the application containing the aforementioned and described information. (e) The chief of police shall have thirty (30) calendar days in which to investigate the application and background of the applicant. The chief of police or his representative shall render a recommendation as to the approval or denial of the permit to the city manager. The department of building safety and housing, the fire department and the Orange County Health Department shall inspect the premises proposed to be devoted to the massage establishment and shall make separate recommendations to the city manager concerning compliance with the foregoing provisions. The proprietor of such establishment shall pay a health service fee as established by the County of Orange. Such fees shall be paid directly to the county health officer to be retained by the county as reimbursement for such inspection. (f) The city manager, after receiving the application and aforementioned recommendations, shall grant the permit if he finds: (1) The required fee has been paid. Ordinance No. NS-XXX Page 8 of 36 11 A-8 (2) The application conforms in all respects to the provisions of this chapter. (3) The applicant has not knowingly made a material misrepresentation in the application. (4) The applicant has fully cooperated in the investigation of his application. (5) The applicant if an individual, or any of the stockholders of the corporation, any officers or directors, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership, has not within five (5) years prior to the application filing date been convicted of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the provisions of California Penal Code Sections 266i, 314, 315, 316, 318, 647(a), 647(b), or 647(d), or any crime involving dishonesty, fraud, deceit, or moral turpitude, or any felony offense involving the sale of a controlled substance specified in Sections 11054 through 11058 of the California Health and Safety Code. (6) The applicant has not had a massage establishment permit or massage technician permit or other similar license or permit denied or revoked for cause by this city or any other city located in or out of this state within +h° ften (10) years prior to the date of application. (7) The massage establishment as proposed by the applicant would comply with all applicable laws including, but not limited to, health, zoning, fire and safety requirements and standards. (8) The applicant is at least eighteen (18) years of age. (g) Any person, corporation or partnership denied a permit by the city manager pursuant to these provisions may appeal to the city council pursuant to Chapter 3 of the Santa Ana Municipal Code. (h) It shall be the responsibility of any permit holder to notify the City within thirty (30) days of changing either his or her home address or the address of the massage establishment. Section 7. Section 22-3.1 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Ordinance No. NS-XXX 11 A-9 Page 9 of 36 Sec. 22-3.1. Massage establishment permit -renewal. (a) Applications for the renewal of a permit shall be filed with the Chief of Police at least sixty (60) calendar days before the expiration of the current permit. Temporary permits will not be issued. Any permittee allowing his or her permit to lapse or which permit expired during a suspension shall be required to submit a new application and pay the corresponding original application fees. (b) Any person desiring to obtain a renewal of his/her respective permit shall file a written application under penalty of perjury on the required form with the Chief of Police who shall conduct an investigation. The application shall be accompanied by a nonrefundable filing fee established by separate resolution of the city council to help defray the cost of the investigation required by this chapter. An applicant shall be required to update the information contained in his/her original permit application and provide any new and/or additional information as may be reasonably required by the Chief of Police in order to determine whether said permit should be renewed. Section 8. Section 22-5 of the Santa Ana Municipal Code is hereby amended to add and revise requirements for massage technician, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-5. Massage technician permit [application.] (a) Any person desiring to obtain a permit to act as a massage technician shall make application to the chief of police or his designated representative. Prior to submitting such application a nonrefundable fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of investigation and report required by this chapter. The department of finance shall issue a receipt showing that such permit application fee has been paid. The receipt, or a copy thereof, shall be supplied to the chief of police at the time such application is submitted. (b) The application for permit does not authorize acting as a massage technician until such permit has been granted. (c) Each applicant for a massage technician's permit mayshall furnish all the information required by section 22-3(c)(1) through 22-3(c)(9) of this chapter, and shall in addition furnish the following information: (1) A certificate from a medical doctor licensed to practice in the State of California stating that the applicant has within thirty (30) days immediately preceding the date of application been examined and found to be free of any contagious or communicable disease. Ordinance No. NS-XXX Page 10 of 36 11A-10 (2) ~4An original or certified copy of a diploma or certificate and certified transcripts of graduation from a "recognized school," if any. (3) Certification by the City of Santa Ana after successfully obtaining the requisite score for passage of the City of Santa Ana test, as established and approved by chief of police or the city council. The certification of passage shall be valid for one (1) year from the date of the test. (4) The applicant must provide a valid and current CPR certificate issued by the American Red Cross or the American Heart Association. (5) The massage establishment, ~ , at which the applicant expects to be employed, including a letter of intent to employ from the owner or operator of the massage establishment. (6) Such other identification and information, including written waivers pursuant to the Education Code, as the police department may require in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application. (7) Proof of submission to the California Department of Justice a complete set of fingerprints taken by a police department or California Department of Justice approved contactor. The applicant shall be responsible for payment of any fingerprinting fee. (8) A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. (d) The chief of police shall have thirty (30) calendar days in which to investigate the application and background of the applicant. The chief of police or his representative shall render a recommendation as to the approval or denial of the permit to the city manager. (e) The city manager, after receiving the application and aforementioned recommendation, shall grant the permit if he finds in accordance with section 22-3(f)(1) through 22-3(f)(6), and in addition finds: (1) The applicant has furnished an acceptable medical certificate in Ordinance No. NS-XXX 11 A-11 Page 11 of 36 compliance with this chapter. (2) The applicant has furnished an acceptable diploma or certificate of graduation from a "recognized school" ^r ~^ ~~^~ ~ }hero^f h-. skFa~eF", or is an active member in good standing in the pia American Massage and Therapy Association (AMTA). (3) Proof of certification of passage of the required City of Santa Ana test. (4) The applicant must provide a valid and current CPR certificate issued by the American Red Cross or the American Heart Association. (5) The applicant has not had a massage establishment permit or a massage technician's permit or other similar license or permit denied or revoked for cause by this city or any other city located in or out of this state within +h° ften (10) years prior to the date of application. (46) The applicant eis at least eighteen (18) years of age. (f) Any person denied a permit by the city manager pursuant to these provisions may appeal to the city council pursuant to Chapter 3 of the Santa Ana Municipal Code. (g) It shall be the responsibility of any permit holder to notify the City of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage technician, whether as an employee or as an independent contractor. A permit holder shall notify the City within thirty (30) days of changing either his or her home address or the address of the massage establishment where he or she regularly works as a massage technician. Section 9. Section 22-5.1 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Sec. 22-5.1. Massage technician permit -renewal. (a) Applications for the renewal of a permit shall be filed with the Chief of Police at least sixty (60) calendar days before the expiration of the current Ordinance No. NS-XXX Page 12 of 36 11A-12 permit. Temporary permits will not be issued. Any permittee allowing his or her permit to lapse or which permit expired during a suspension shall be required to submit a new application and pay the corresponding original application fees. (b) Any person desiring to obtain a renewal of his/her respective permit shall file a written application under penalty of perjury on the required form with the Chief of Police who shall conduct an investigation. The application shall be accompanied by a nonrefundable filing fee established by separate resolution of the city council to help defray the cost of the investigation required by this chapter. An applicant shall be required to update the information contained in his/her original permit application and provide any new and/or additional information as may be reasonably required by the Chief of Police in order to determine whether said permit should be renewed. (c) A massage technician permittee shall also be required to submit with his or her renewal application the following documents: (1) A certificate, under penalty of perjury, from a medical doctor licensed to practice in the state of California stating that the applicant has, within at least thirty (30) calendar days immediately preceding the date of application, been examined and found to be free of any contagious or communicable disease. (2) Two (2) color photographs of the applicant at least two (2) inches by two (2) inches taken within the last thirty (30) days. (3) The applicant must provide a valid and current CPR certificate issued by the American Red Cross or the American Heart Association. (4) Proof that the applicant has successfully retaken and passed the City of Santa Ana test described in section 22-5(e)(3) within thirty (30) days immediately preceding the date of filing an application for renewal. (5) Has submitted proof of completion of at least fifteen (15) hours of continuing education courses in massage from a recognized school of massage or a qualified massage association. On-line and correspondence courses do not meet this requirement. A maximum of six (6) hours may be applied toward the fifteen hours of continuing education required by the section for obtaining a CPR certificate. Ordinance No. NS-XXX 11 A-13 Page 13 of 36 Section 10. Section 22-6 of the Santa Ana Municipal Code is hereby amended to add and revise exemptions to the chapter, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-6. Exemptions. The provisions of this chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions: (a) Acupuncturists, Physicians, surgeons, chiropractors, osteopaths, or physical therapists who are duly licensed to practice their respective professions in the State of California. Practical nurses, licensed vocational nurses, or other persons without qualifications as massage technicians and without first obtaining a massage technician permit pursuant to this chapter, whether employed or contracted by acupuncturists, physicians, surgeons, chiropractors or osteopaths or not, may not give massage or massage procedures. (b) Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the State of California. (c) Nurses registered under the laws of the State of California. (d) Barbers, cosmetologists, manicurists and estheticians who are duly licensed under the laws of the State of California when engaged in such practice within the scope of their license. Except that this exception applies solely for the massaging of the neck, face and/or scalp of the customer of said barber or cosmetologist or in the case of a licensed manicurist, the massaging of the forearm, hands, calves and/or feet. State licensed estheticians may provide skin care, which is limited to the face, neck, arms or upper part of the human body. (e) Accredited high schools and colleges, and coaches and trainers therein while acting within the scope of their employment. (f) Trainers of any amateur, semiprofessional or professional athlete or athletic team. (g) An individual who is certified pursuant to Chapter 10.5, commencing with Section 4600, of Division 2 of the California Business and Professions Code, and who is practicing consistent with the qualifications established by his or her Ordinance No. NS-XXX Page 14 of 36 11A-14 certification. Section 11. Section 22-6.1 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Sec. 22-6.1. Persons working for exempted individuals. Any person conducting massage for an exempted class individual must possess a massage technician permit and shall comply with all massage regulations. A massage technician employed by an exempted class individual must work under the direction and control of that individual who must be physically present at the location where the massage is being administered. A massage technician cannot rent office space or workspace at an exempt individual's location. Section 12. Section 22-6.2 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Sec. 22-6.2. Evidence of exempt status. (a) Any person or business exempted from the provisions of this chapter pursuant to Section 22-6 shall file with the City a copy or provide other evidence of the certificates, permits, licenses, registration, or other approved authorizing documentation held by the persons who are providing massage services at the business, prior to commencing services within the City. (b) The City shall have the authority to make reasonable investigations into the information so provided pursuant to this Section. Section 13. Section 22-7 of the Santa Ana Municipal Code is hereby amended to add and revise requirements for massage establishment facilities, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-7. Massage establishment facilities. Every massage establishment shall maintain facilities meeting the following requirements: (a) Sign. , o„+ ~~ ~ ,,.,.,~~„rye o +.,hli~hm~ ~~~n~Establishment must ~~___.._.....~....,..........,.,,,,,.y., .,~«.,., comply with the City of Santa Ana sign ordinance contained in Chapter 41. Ordinance No. NS-XXX 11 A-15 Page 15 of 36 (b) Lighting. Minimum lighting shall be provided in accordance with Article 220 of the National Electric Code, and, in addition, at least one (1) unobstructed artificial light of not less than #s~-(~9sixty (60) watts shall be provided in each room or enclosure where massage services are performed on patrons. (c) Ventilation. Minimum ventilation shall be provided in accordance with Section 1105 of the Uniform Building Code. (d) Equipment. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided. (e) Water. Hot and cold running water shall be provided at all times. (f) Linen storage. Closed cabinets shall be provided for storage of clean linens, and approved receptacles shall be provided for storage of soiled linen. (g) Separation of sexes. If male and female patrons are to be served simultaneously at the massage establishment, a separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons, and each such separate facility or room shall be clearly marked as such. °~-~ cao;;~m rcrr r (+h) Facilities for employees. A minimum of one (1) separate wash basin shall be provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided sanitary towels in permanently installed dispensers at each wash basin. (}i) Compliance with Code. Proof of compliance with all applicable provisions of the Santa Ana Municipal Code shall be provided. Ordinance No. NS-XXX Page 16 of 36 11A-16 Section 14. Section 22-8 of the Santa Ana Municipal Code is hereby amended to add and revise requirements for massage facilities operations, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-8. Massage facilities operation. Every person who owns, operates, manages or is employed in any massage establishment shall comply with the following operating requirements. These requirements shall be prominently and publicly displayed in a conspicuous place upon every premises operating under the provisions of this chapter: (a) No person shall be employed or permitted to act as a massage technician who is not in possession of a valid unrevoked massage technician's permit. (b) Bath and massage operations shall be carried on and the premises shall be open only between the hours of X8:00 a.m. a+~d-~~to 10:00 #t. p. m. (c) A list of services available and the cost of such services shall be posted in an open, public place on the premises, and shall be described in readily understandable language. No owner, operator, responsible managing employee, independent contractor, manager, or permittee shall permit, and no massage technician shall offer to perform any services other than those posted. (d) The owner/operator of a massage establishment shall prominently display the massage establishment permit,- and a any and all permits for each and every massage technician employed in the establishment, °"~~ in the front lobby area of the premises-, for examination upon demand by any police or code enforcement officer of the City. (e) Each massage technician shall wear a photo identification card prepared and issued by the City while administering a massage. The identification card shall be worn on outer clothing with the photo facing out. The massage technician shall not use any name other than specified on the photo identification card while on duty. (f) Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall not be used on more than Ordinance No. NS-XXX 11 A-17 Page 17 of 36 one (1) patron unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one (1) patron. Soiled linens and paper towels shall be deposited in approved receptacles. (fg) In any establishment in which massage services are rendered only to members of the same sex at any one (1) time, such persons of the same sex shall be placed in a single separate room or the operators of the massage establishment may elect to place such persons of the same sex in separate rooms or booths having adequate ventilation to an area outside said room or booth while massage services are being performed. (gh) Wet and dry heat rooms, steam or vapor rooms or cabinets, shower rooms and compartments, toilet rooms and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disinfectant approved by the health department. Bathtubs shall be thoroughly cleaned with a disinfectant approved by the health department after each use. All walls, ceilings, floors and other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. (~i) Instruments utilized in performing massage shall not be used on more than one (1) patron unless they have been sterilized using approved sterilizing methods. (+j) No persons shall enter, be or remain in any part of a massage establishment while in the possession of, consuming, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager or permittee shall not permit any such person to enter or remain upon such premises. (}k) No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage, except as provided below. Thn nnnr•nnfnrminrr i,co of m c nn oc+ hlic~hrvic~ri+ rc~i i nTn y fonoili+ioc ~ ~n f o o i~+inn nn nr hofnro rlero -hor 1 Taa-.r~~--ic~~ ~ I ~rn~a-S.~ C~~ , r i . It shall be unlawful for any person to perform any massage upon a member of the general public while on the premises of a school of massage. (I) No part of the establishment shall be used for residential or sleeping purposes. No cooking or food preparation shall be Ordinance No. NS-XXX Page 18 of 36 11A-18 allowed on the premises unless a full service kitchen is installed. Such a kitchen shall be for the sole use of employees, and shall be installed in an "employees only" area. The full service kitchen shall have a minimum of a sink and hot and cold running water, a refrigerator, a stove and sufficient cabinets to store cooking utensils. (m) All massage establishments shall have a manager on the premises at all times the massage establishment is open. The designated manager must possess a valid and current CPR certificate issued by the American Red Cross or the American Heart Association. (n) The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this Chapter and any applicable provisions of the Santa Ana Municipal Code. Any change in management must be reported to the Police Department within ten (10) days. (o) An operator and/or on-duty manager shall be responsible for the conduct of all employees, or independent contractors, while the employees are on the licensed premises. Any act of omission of any employee constituting a violation of the provisions of this ordinance and any applicable provision of the Santa Ana Municipal Code shall be deemed the act of omission of the operator for the purposes of determining whether the operator's license shall be revoked, suspended or renewed. Section 15. Section 22-10 of the Santa Ana Municipal Code is hereby amended to add and revise requirements for the sale or transfer of a massage establishment, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-10. Sale or transfer. (a) Upon the sale or transfer of any interest in a massage establishment, the permit shall be null and void. y~Any person, firm or entity desiring to own or operate the massage establishment- shall make a new application. A fee as established by resolution of the city council shall be payable for each such application involving sale or other transfer of any interest in an existing massage establishment. The provisions of section 22-3 of this chapter shall apply to any person, firm, or entity applying for a massage establishment permit for premises previously used as such establishment. Ordinance No. NS-XXX 11 A-19 Page 19 of 36 (b) Any such sale or transfer of any interest in an existing massage establishment or any application for an extension or expansion of the building or other place of business of the massage establishment shall require inspection and shall require compliance with section 22-7 of this chapter. (c) The owner or operator of a massage establishment shall be responsible for notifying the City of any intention to rename, change management, change location, or convey the business to another person. Section 16. Section 22-12 of the Santa Ana Municipal Code is hereby amended to add and revise types of prohibited conduct, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-12. Prohibited conduct. (a) It shall be unlawful for any massage technician to perform any massage services in any commercial establishment other than a premises holding a valid massage establishment permit se-sterner-. (b) A massage technician shall be fully clothed at all times and shall not expose their genitals, pubic area, buttocks, or in the case of female technicians, their breasts, and such practices shall not be allowed or permitted by the massage establishment permittee or his designate. (c) A massage technician shall not give massages at any location other than on the premises of a massage establishment with a valid massage establishment permit, or a business location other than the one specified on the technician's permit. (d) A massage technician shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered, and such practices shall not be allowed or permitted by the massage establishment permittee or his designate. (e) No massage, for a fee, shall be done at the residence of a permitted massage technician or in any hotel, or motel in the City. (f) It is a violation of this chapter for a permit holder to commit, and the City may deny an application for a permit or discipline a permit holder for, any of the following: (1) Unprofessional conduct, including, but not limited to, denial of licensure, revocation, suspension, restriction, or any other Ordinance No. NS-XXX Page 20 of 36 11 A-20 disciplinary action against a certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions. (2) Procuring a permit by fraud, misrepresentation, or mistake. (3) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision or term of this chapter or any rule or bylaw adopted by the City. (4) Conviction or plea of guilty or nolo contendere to any felony or misdemeanor or infraction that is substantially related to the qualifications or duties of a permit holder, in which event the record of the conviction or plea shall be conclusive evidence of the crime. (5) Conviction or plea of guilty or nolo contendere to any felony or misdemeanor or infraction directly related to the operation of a massage establishment. (6) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a permit. (7) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a permit. (8) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a permit holder. (9) Committing any act punishable as a sexually related crime. Section 17. Section 22-13 of the Santa Ana Municipal Code is hereby amended to allow suspension of a permit, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 22-13. Suspension or revocation. When the city manager finds that any person holding a permit under the provisions of Chapter 22 has violated the provisions of this chapter or is found guilty of conduct which would form the basis of denial of the license as set forth Ordinance No. NS-XXX 11 A-21 Page 21 of 36 in sections 22-2 and 22-4, he may revoke or suspend the permit. No such revocation shall become effective until the permit holder has been notified in writing by certified mail of his right to appeal the revocation decision pursuant to the provisions or Chapter 3 of this Code. If a timely appeal is filed, the revocation shall be effective only upon decision of the city council. Otherwise, the revocation shall become effective after the timely appeal period has passed. Section 18. Section 22-16 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Sec. 22-16. Advertising Requirement. All advertising shall include the Massage Establishment Permit number, Conditional Use Permit number, or Land Use Certificate number in any advertisement of services appearing in any printed or electronic advertising medium. The reference does not have to contain the words "Massage Establishment Permit", "Conditional Use Permit", or "Land Use Certificate". "City of Santa Ana permit number" or similar language will suffice so long as the correct permit /certificate number is included. Section 19. Section 22-17 is added to Chapter 22 of the Santa Ana Municipal Code to read in full as follows: Sec. 22-17. Violation -Penalty. Any person violating this chapter shall be guilty of a misdemeanor, punishable by a fine of one-thousand dollars ($1,000) or by imprisonment for a period not to exceed six (6) months, or by both such fine and imprisonment. Section 20. Article XVIII is added to Chapter 41 of the Santa Ana Municipal Code to read in full as follows: ARTICLE XVIII. MASSAGE Sec. 41-1750. Specific purposes. (a) In addition to the general purposes listed in section 41-1, the specific purposes of this article are to: (1) Establish a procedure which places strict limits on processing time and creates an orderly process for reviewing Ordinance No. NS-XXX Page 22 of 36 11 A-22 applications to conduct massages. (2) Ensure orderly and thorough city review of applications for conducting massages, including, but not limited to, massage establishment(s), massage technician(s), and ancillary massage use(s). (3) Establish reasonable and uniform regulations that will reduce possible adverse secondary effects that businesses conducting massages as a primary or ancillary use may have upon the residents of the city and preserve the integrity of existing commercial areas of the city and of residential areas which are in close proximity to such commercial areas. (4) To protect the rights conferred by the United States Constitution to businesses conducting massages as a primary or ancillary use in a manner that ensures the continued and orderly development of property within the city and diminishes those undesirable negative secondary effects that recognized studies have shown to potentially be associated with the development and operation of businesses conducting massages. (5) To allow a process whereby the unusual site development features or operating characteristics of uses which must comply with this article may be conditioned through an individual review, in order to be compatible with the surrounding uses of property, while preserving the applicant's rights to objective standards and prompt administrative and judicial review. (b) This article shall not apply to massage establishments or businesses that are sole proprietorships, where the sole proprietor is certified pursuant to Chapter 10.5, commencing with Section 4600, of Division 2 of the California Business and Professions Code, or to massage establishments or businesses that employ or use only persons certified pursuant to Chapter 10.5, commencing with Section 4600, of Division 2 of the California Business and Professions Code, to provide massage services. Sec. 41-1751. Definitions. The words and phrases, whenever used in this article, shall be construed as defined in sections 41-1751.1--41-1751.6, unless from the context a different meaning is intended or unless a different meaning is specifically defined and more particularly directed to the use of such words or phrases. The words used Ordinance No. NS-XXX 11 A-23 Page 23 of 36 in the present tense include the future tense, and words in the singular number include the plural number. Sec. 41-1751.1. Massage. As used herein, "massage" shall mean any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliances, or with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, ointments, or other similar preparations commonly used in this practice. Sec. 41-1751.2. Massage establishment. As used herein, "massage establishment" shall mean any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths as the principal functions. Sec. 41-1751.3. Massage technician. As used herein, "massage technician" shall mean any person who, for any form of consideration whatsoever, gives or administers to another person a massage as defined or baths as the principal function. Sec. 41-1751.4. Recognized school of massage. As used herein, "recognized school of massage" shall mean any school or institution of learning which teaches the theory, ethics, practice, profession, or work of massage, which school or institution has been approved pursuant to the California Education Code and which requires a resident course of study of not less than one thousand (1,000) hours to be given in not less than six (6) calendar months before the student shall be furnished with a diploma or certificate of graduation. Schools offering a correspondence or online course not requiring actual attendance shall not be deemed a recognized school. The City of Santa Ana shall have a right to confirm that the applicant has actually attended class in a recognized school. Sec. 41-1751.5. Chair massage. Ordinance No. NS-XXX Page 24 of 36 11 A-24 As used herein, "chair massage" shall mean where a patron receives a massage while fully clothed in a public or semipublic area. The areas massaged are the head, neck, back and arms only. Sec. 41-1751.6. Ancillary massage use. As used herein, "ancillary massage use" shall mean any establishment that provides massage services as an accessory or complementary use to other health or beauty services, and that employs no more than two (2) licensed massage technicians, is subject to any zoning and land use regulations as required by the Planning & Building Agency. Sec. 41-1752. Permitted zones and locations. (a) An ancillary massage use may only be located within one of the zones detailed in subdivision (b) of this same section if the ancillary massage use is ancillary to a retail or service use that is currently licensed by the State of California Board of Barbering and Cosmetology or an exempt individual as defined in Santa Ana Municipal Code section 22-6. (b) No massage establishments or ancillary massage use may be located within the city unless it meets the following zoning and location criteria: (1) Massage establishments may be permitted as a primary use within any commercial zone in the city, excluding commercial zone C3-A, as defined in this chapter. (2) No massage establishments may be permitted as a primary use within any professional (P) zone in the city, as defined in this chapter. (3) No massage establishments may be permitted as a primary use within any specific development in the city, as defined in this chapter. (4) No massage establishments may be permitted as a primary use within any specific plan in the city, unless already defined and permitted, as defined in this chapter. (c) No massage establishments may be located within the city unless it meets the following distance criteria: (1) The proposed massage establishment is more than one thousand (1,000) feet from any other existing massage Ordinance No. NS-XXX 11 A-25 Page 25 of 36 establishment. (2) The proposed massage establishment is more than one thousand (1,000) feet from any adult entertainment businesses, as defined in Santa Ana Municipal Code section 41-1701.6. (3) The distances set forth in subsections (1) and (2), above, shall be measured as a radius from the primary entrance of the proposed massage establishment to the property lines of the parcel so zoned or used, without regard to intervening structures. (4) Any waiver of the provisions of this subsection shall be pursuant to the provisions of division 1 of article V of this chapter; provided, however, that any such application shall be reviewed and determined as provided in section 41-1755 of this Code. Sec. 41-1753.1. Massage establishment conditional use permit requirements. (a) Permit required. No massage establishment may be operated or established within the city by right; all persons wishing to operate or establish a massage establishment within the city must apply for and obtain a massage establishment conditional use permit under this article. (b) Application. Any person desiring to operate or establish a massage establishment within the city shall file with the planning and building agency a massage establishment conditional use permit application on a standard application form supplied by the planning and building agency. (c) Existing massage establishments. The city council declares that all massage establishments legally established shall not be deemed to be nonconforming to chapter 41, as amended, for failure to seek and obtain a massage establishment conditional use permit for a period of one (1) year. The city council further declares that all legally established massage establishments, as that term is defined in this article, shall be deemed to be conforming for the use or uses specified in any conditional use permit issued to the use. Sec. 41-1753.2. Ancillary massage use land use certificate. (a) Certificate required. No ancillary massage use may be conducted or established within the city by right; all persons wishing to operate or establish Ordinance No. NS-XXX Page 26 of 36 11 A-26 an ancillary massage use within the city must apply for and obtain a ministerial land use certificate under this article. The city's development project plan approval process, set forth at section 41-668 et seq. of this Code, shall not apply to applications solely for the issuance of an ancillary massage use land use certificate. (b) Application. Any person desiring to operate or establish an ancillary massage use within the city shall file with the planning and building agency an ancillary massage use land use certificate application on a standard application form supplied by the planning and building agency. (c) Existing ancillary massage use. The city council declares that all ancillary massage uses legally established shall not be deemed to be nonconforming to chapter 41, as amended, for failure to seek and obtain an ancillary massage use land use certificate for a period of one (1) year. The city council further declares that all legally established ancillary massage uses, as that term is defined in this article, shall be deemed to be conforming for the use or uses specified in any land use certificate issued to the use. Sec. 41-1754. Permit and certificates--Contents of application. (a) Initiation. The permit process shall be initiated by the filing of a complete application with the executive director. The executive director shall determine the completeness of the application within thirty (30) calendar days of its submittal. (b) Contents. The city council, by resolution, shall set forth the contents required for such applications for a massage establishment conditional use permit. (c) Land use certificate. At the time of submittal for aland-use certificate for massage as an ancillary use, the following items of information shall be required: (1) A fully dimensioned site plan and floor plan which clearly identifies the area that will be used for massage purposes. (2) Completed Land-use Certificate application. (3) Approved Certificate of Occupancy. (4) Copy of Rental Agreement. (5) Approved Business License. Ordinance No. NS-XXX 11 A-27 Page 27 of 36 Sec. 41-1755. Same--Decision to grant or deny. (a) Action on application. The zoning administrator or designee shall act as the decision-maker on the application and shall grant or deny an application for a massage establishment conditional use permit. (b) Investigation. Upon the filing of a completed application, the decision-maker shall cause to be made an appropriate investigation, including consultation with other city agencies and inspection of the premises as needed. Consultation is not grounds for the city to unilaterally delay in reviewing a completed application. (c) Notice and hearing. (1) Notice of hearing on a massage establishment conditional use permit shall be mailed and noticed as prescribed in Article 5 of this chapter. (2) The decision-maker shall conduct the public hearing as prescribed in section 3-4 of this Code. In reaching a decision on an application, the decision-maker shall not be bound by the formal rules of evidence. (d) Time for hearing. After the investigation has been completed the decision-maker shall conduct a noticed public hearing, as prescribed by this section, on the application for a massage establishment conditional use permit. (e) Action on application. The decision-maker shall render a decision on the application for a massage establishment conditional use permit or an ancillary massage use land use certificate within thirty (30) days of receiving a complete application. The decision shall be made no later than the same day as the final hearing on the application, and if not in writing, a written decision shall be prepared within three (3) business days of the decision. The failure of the decision-maker to render such a decision within this time frame shall be deemed to constitute a denial. (f) Final decision. The decision-maker's written decision shall be hand delivered or mailed to the applicant, and shall be final. (g) Court proceedings. All challenges to the decision-maker's action shall be governed by the provisions of Code of Civil Procedure § 1094.5, except that the city shall prepare and certify the administrative record of proceedings, should it be requested by the petitioner, within thirty (30) days of the request. Ordinance No. NS-XXX Page 28 of 36 11 A-28 Sec. 41-1756. Same--Approval criteria. (a) Findings. The decision-maker shall approve an application for a massage establishment conditional use permit or an ancillary massage use land use certificate subject to its compliance with this article, where the information submitted by the applicant substantiates the following findings: (1) No more than one (1) massage establishment conditional use permit or ancillary massage use land use certificate may be issued to one primary address. (2) The proposed use complies with the applicable development and design requirements of the underlying zoning district in which it is to be located and with the applicable standards of this article. (3) The proposed use will provide and maintain wastewater to establish and maintain an unrestricted flow in sanitary sewers during average and peak conditions as established by the city's approved sewer master plan, as amended from time to time. (4) The proposed use will provide and maintain solid waste services to establish and maintain a level of service consistent with the city's approved source reduction and recycling element. (5) The proposed use is located in a zoning district in which a massage establishment is permitted pursuant to subsection 41-1752(a). (6) The massage establishment meets the distance criteria of subsection 41-1752(b), which shall be measured as of the date of the completed application. (7) The proposed use does not involve an applicant, if an individual, or any of the officers or general partners of an applicant, if a corporation or partnership, that have been found guilty or pleaded nolo contendere within the past four (4) years to a misdemeanor or a felony classified by the state as a sex orsex-related offense. (8) The applicant has not submitted false or misleading information on the application. (9) The applicant has not had an application for a massage establishment conditional use permit or land use certificate denied or revoked in the twelve (12) months preceding the date of the current application. Ordinance No. NS-XXX 11 A-29 Page 29 of 36 Sec. 41-1757. Same--Period of validity. Any massage establishment conditional use permit or ancillary massage use land use certificate approved pursuant to this article shall become null and void unless the proposed use is established within one (1) year of the date from the approval. The permit holder may apply for a single one-year extension of the permit or certificate, provided that such application is filed prior to the expiration of the permit. Any application for an extension shall be reviewed by the same procedure as the original permit application. For purposes of this section, a proposed use shall be deemed to be established if a building permit for the project has been issued and construction diligently pursued; or, a certificate of occupancy has been issued; or, a complete application for an extension has been submitted. Sec. 41-1758. Same--Revocation. (a) Findings. Any permit or certificate issued pursuant to the provisions of this article may be revoked by the city on the basis of any of the following: (1) The business or use has been conducted in a manner which violates the provisions of this article, the permit itself, fails to conform to the plans, specifications or procedures described in the application, violates the occupant load limits set by the fire marshal, or which violates any city, state, or federal laws. (2) The permittee has failed to obtain or maintain all required city, county, and state licenses and permits. (3) The permit or certificate is being used to conduct a use different from that for which it was issued. (4) The permittee has misrepresented a material fact in the application for permit or has not answered each question therein truthfully. (5) Due to changes in on-site conditions, the massage establishment or ancillary massage use lacks sufficient on- site parking area for employees and the public under the standards set forth in the city's parking ordinance, except for an existing use that is legal and nonconforming with respect to parking. (6) The permitted business creates sound levels which violate the noise control ordinance of the city. Ordinance No. NS-XXX Page 30 of 36 11 A-30 (7) That the use for which the approval was granted has been discontinued, ceased to exist or has been suspended for a continuous period of twelve (12) months or more. (b) Notice of hearing. The grantor of the permit shall notice and conduct a public hearing, as prescribed in this Code, on the proposed permit revocation. (c) Hearing. The zoning administrator or designee shall conduct the revocation hearing and hear testimony regarding the proposed revocation from any interested party. The hearing body shall not be bound by the formal rules of evidence at the hearing. (d) Notice. Written notice of hearing on the proposed permit or certificate revocation, together with written notification of the specific grounds of complaint against the permittee, shall be personally delivered or sent by certified mail to the permittee at least ten (10) days prior to the hearing. (e) Decision. The grantor shall revoke, not revoke, or not revoke but add conditions to, the permittee's massage establishment conditional use permit or ancillary massage use land use certificate. (f) Decision and notice. Within ten (10) working days of the conclusion of the hearing, the decision-maker shall render a decision supported by written findings. A copy of the decision and written findings shall be mailed to the owner of the use or structure for which the permit or certificate was revoked and to any other person who has filed a written request for such notice. (g) Time for decision. The decision-maker shall make all efforts to provide a decision as soon as reasonably possible after the public hearing. (h) Appeal of decision or call for review. If the decision on revocation is made by the planning manager or designee, any interested person may appeal the decision to the planning commission, or the decision may be reviewed by the city council pursuant to a call for review by the council, pursuant to subsection 41-645(c). (i) Effective date. The effective date of a decision to revoke a massage establishment conditional use permit or an ancillary massage use land use certificate shall be as provided in section 41-645. (j) Renewal. In the event a permit is revoked pursuant to this article, another massage establishment conditional use permit or ancillary massage use land use certificate shall not be granted to the permittee or on the site of the permit within twelve (12) months after the date of such revocation. Ordinance No. NS-XXX Page 31 of 36 11 A-31 Sec. 41-1759. Development and operating standards. (a) The following development and operating standards shall be applied to the operation of any massage establishment and ancillary massage use: (1) The owner must advise the City, in writing, at the time of the application for a permit of the business hours and, thereafter, of any changes in such hours. No person shall operate a massage establishment or administer a massage in any massage establishment between the hours of 10:00 p.m. and 8:00 a.m. A massage begun any time before 10:00 p.m., must nevertheless terminate at 10:00 p.m. All customers, patrons and visitors shall be excluded from the massage establishment during these hours and be advised of these hours. (2) All exterior signs identifying the premises as a massage establishment shall comply with the sign requirements of the City. (3) Each operator and/or on duty Responsible Employee shall display the operator's permit in a conspicuous public place in the lobby of the massage establishment. (4) The hours of operation must be posted in the front window and clearly visible from the outside. (5) The operator and/or on duty Responsible Employee must also post, on a daily basis in a conspicuous public place in the lobby, the name of the operator and/or on duty Responsible Employee as well as all on-duty massage technicians. (6) "No loitering" signs shall be posted at the front and rear of the business. No outside waiting or seating area is permitted in accordance with section 602 of the penal code. (7) No person shall be permitted to consume alcohol on the premises. (8) Employees shall be at least eighteen (18) years of age. There shall be a minimum of one (1) employee managing the massage establishment during all working hours. During each employee's working hours, the employee shall wear a Ordinance No. NS-XXX Page 32 of 36 11 A-32 badge identifying the business and the employee's full name. (9) Occupancy shall not exceed that required under the uniform building code and uniform fire code, and the maximum occupancy load shall be posted at the main entrance. (10) Window areas shall not be covered or made opaque in any way. All windows and entrances must be unobstructed at all times. (11) Lighting levels on the premises within sixty (60) feet of the use and in all required parking areas shall be maintained at a minimum 1foot-candle of light. (12) No exterior pay phones shall be permitted. (13) Rear exits are prohibited unless required by either the building code or the fire code. When required, rear exit doors shall be kept in a locked closed position and shall have panic hardware. (14) No person shall be employed or permitted to act as a massage technician who is not in possession of a valid, un- revoked massage technician's permit. (15) No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage, except as provided by a recognized school or massage. (16) It shall be unlawful for any person to perform any massage upon a member of the general public while on the premises of a school of massage. (17) Residing in an establishment is prohibited. No person or persons shall be allowed to live, reside or dwell inside the massage establishment at any time. No food of any kind shall be prepared for sale or sold in the establishment. (18) No interior doors may be locked during operating hours. (b) The following development and operating standards shall be applied to the operation of any ancillary massage use: (1) All necessary building permits shall be required for its construction. Ordinance No. NS-XXX 11 A-33 Page 33 of 36 (2) If an independent massage room is utilized, it must comply with the following standards: (A) The door to the massage room may not have a locking mechanism and may not be accessed directly from the exterior. (B) Lighting shall be provided within the room at a minimum illumination of/4 foot-candles. (3) Ancillary uses may not have signage other than that permitted in section 41- 872(c) of the SAMC. (4) The use of frosted or reflective glass is not permitted, nor shall window coverings of any kind be utilized to screen the interior of the business. Sec. 41-1760. Applicability to other regulations. The provisions of this article are not intended to provide exclusive regulation of the regulated expressive business uses. Such uses must comply with any and all applicable regulations imposed in other articles of the zoning code, other city ordinances and state and federal law. Should a conflict exist between the provisions of this article and the provisions of other articles of chapter 41 of this Code, the provisions of this article shall prevail. Section 21. 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 any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 22. The Clerk of the Council shall certify to the adoption of this ordinance. Ordinance No. NS-XXX Page 34 of 36 11 A-34 ADOPTED this day of 2009 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Ryan O. Hodge Deputy City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS-XXX Page 35 of 36 11 A-35 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-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 36 of 36 11 A-36 REQUEST FOR COUNCfL ACTfON CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MARCH 16, 2009 TITLE; CONTRACT AWARD FOR LOCAL STREET REHABILITATION - PROJECT RESTORE, PHASE V (PROJECT NO. 09-1748-C) ~.~~~ APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S' Reading ^ Ordinance on 2"d Reading ^ implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER CITY RECOMMENDED ACTION 1. Award a contract to Alliance Street Works, Inc., the lowest responsible bidder, in accordance with unit bid prices and add-on alternate one in the estimated amount of $2,986,700 for construction of Local Street Rehabilitation - Project Restore Phase V. 2. Approve a Funding Analysis with a total estimated construction cost of $3,583,100. DISCUSSION This project is part of the City's $100 million investment to rebuild neighborhood streets throughout the City. Segments of local streets located north of McFadden Avenue and east of Flower Street have been identified as high priority for rehabilitation in the City's pavement management system (Exhibit 1). The Pavement is deteriorating due to weather, age and heavy usage. Some of the adjacent curbs, gutters, sidewalks, cross gutters and wheelchair ramps are also in various states of disrepair and require replacement. This project provides for recycling of existing asphalt pavement with the cold-in-place process, construction of asphalt concrete, replacement of damaged concrete curbs, gutters, sidewalks, and curb ramps. Once completed, these improvements will enhance the ride quality, surface drainage and visual appearance of the neighborhoods. The Notice Inviting Bids was advertised on February 6 and 9, 2009, and bids were opened on February 26, 2009. A summary of the bid invitations mailed. the bids received, and the bid results follows. 23A-1 Contract Award For Project Restore Local Street Rehabilitation Phase V March 16, 2009 Page 2 Santa Ana Contractors receiving notices: 14 Contractors requesting bidding documents: 14 Bids received: 7 Bids received from Santa Ana Contractors: 1 NAME OF RESPONSIVE BIDDER CITY BASE BID + ADDENDUM ALT ONE 1. Alliance Street Works, Inc. Anaheim $2,986,700 2. All American Asphalt Corona $3,205,519 3. Hardy & Harper, Inc. Santa Ana $3,255,225 4. Sequel Contractors, Inc. Santa Fe Springs $3,276,450 5. R.J. Noble Company Orange $3,280,539 6. Sully-Miller Contracting Co. Anaheim $3,356,774 7. Excel Paving Company Long Beach $3,599,250 A total of seven bids were received and all were responsive. The lowest bid was submitted by Alliance Street Works, Inc. for $2,986,700, which is below the Engineer's estimate of $3,768,400. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from future review. Categorical Exemption Environmental Review No. 2002-10 will be filed for the project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $3,583,100 for the project (Exhibit 2). Funds are available in the Public Works Account for Project Restore (account no. 58-552-6631). APPROVED AS TO FUNDS AND ACCOUNTS: James G. R ss Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Mgmt. Services Agency K:\Constructiori\RFCA-draft\RFCA 09-1748-C contract award Local Street Rehab Phase V 100WD 23A-2 rx rrt aro ^ ` ,~r~~ I I~ z ~ ~ ~ I ~--- ^ °ffµ C swr. a..... I .s rn .~ 0 r ~ D~ y ~ ~--~~~ J roTM '~ wrx sr ® ~ inx sr ~o ~~ ~~ ~a~ ~ ~o~®.=r ~ 4 a„ .. D~-0 . ®©o(~. a ~ooooo = a ooo^©~® ~ ~B sr B® ao sr pT {T L_L_J a~ U a sr r r moo®®oomm®®eeoe~ ®~QOmm~e®~~®~ 4 ~®®®oom°B~°,~® ,~^T ~. SANTA a N a TITLE' CONTRACT AWARD FOR !~®- P W A AGENDA ~~~° LOCAL STREET REHABILITATION MARCH 16.2009 PROJECT RESTORE -PHASE V PUBLIC MURKS .~E~~. (PROJECT NO. 09-1748-C) 23A-3 FUNDING ANALYSIS PROJECT NO. 09-1748-C LOCAL STREET REHABILITATION PROJECT RESTORE, PHASE V Construction Contract $2,986,700 Contract Administration 81,130 Inspection and Testing 126,800 Survey Staking 89,800 Contingencies 298,670 TOTAL ESTIMATED CONSTRUCTION COSTS $3,583,100 Exhibit 2 23A-4 REQUEST FOR COUNCIL ACTION _~ CITY COUNCIL MEETING DATE: MARCH 2, 2009 TITLE: AGREEMENT WITH TELECOM PARTNERS GROUP CORP, dba ATS COMMUNICATIONS FOR WIRELESS COMMUNICATION CONSULTING SERVICES CIT M AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO ~3- j~,; - C~~y FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached Amended and Restated Agreement with ATS Communications to provide wireless communication consulting services for a two-year term on a commission basis, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In January 2006 the City entered into a three-year agreement with ATS Communications to provide wireless communication consulting services on a commission basis. Pursuant to the agreement, which expired on December 31, 2008, ATS developed a wireless facilities master plan in an effort to maximize wireless communications while minimizing the number of wireless facilities. In addition, ATS has served as the City`s agent in effectively coordinating the placement of new facilities on City- owned properties, and has worked with City staff and wireless carriers to facilitate co-location of multiple transmitters on single towers wherever possible. With the completion of the wireless master plan, ATS has marketed potential sites to the five wireless service providers in the Santa Ana market. Over the last three years, ATS has worked on 19 potential sites. Of those, lease agreements for six sites have been completed or are close to completion, and several remain in process. In addition, ATS has worked with the City to develop a master lease agreement in an effort to streamline and simplify the negotiations process. Under the agreement, ATS will continue its exclusive right to market City-owned land for lease to wireless service providers for the next two years, with the same terms and conditions of the original agreement. ATS will continue to maintain the City's wireless facilities master plan, and assist staff in managing all wireless facility leases, including design, installation and ongoing management. 25A-1 AGREEMENT WITH ATS COMMUNICATIONS March 2, 2009 Page 2 As compensation, ATS will receive 20 percent of the lease revenues associated with each site it negotiates on behalf of the City. All decisions to lease any city sites will be made by the City Council on a project specific basis. The agreement does not guarantee any leases to be approved under the master plan without City Council approval. FISCAL IMPACT Funds to pay for services provided by ATS will be paid solely from rents received on leases negotiated by ATS. 25A-2 AMENDED AND RESTATED AGREEMENT FOR CELLULAR TOWER CONSULTANT SERVICES THIS AGREEMENT, made and entered into this 2°d day of March, 2009 ("Effective Date") by and between Telecom Partners Group Corp, dba ATS Communications, aCalifornia corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of wireless communication technology to assist the City in marketing and facilitating the development of cell towers on City owned property to provide a wireless communication network throughout the City of Santa Ana. B. On January 1, 2006, City and Consultant entered into an agreement for such wireless communications network marketing services (the "Original Agreement"). C. Since the execution of the Original Agreement communications technologies have advanced and wireless communications providers are looking for sites to complete coverage of their systems and implement the new technologies. D. In undertaking the performance of this Agreement, the Consultant represents that it is knowledgeable in its field and that any services performed by Consultant will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. E. In approving this Agreement, the City Council finds that Consultant has unique qualifications and skills not otherwise available in the marketplace, and is therefore exempt from competitive bidding. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES (a) Consultant shall maintain and update the City's wireless communications master plan ("Wireless Master Plan") which identifies current wireless facilities located within the City (on public and private land), other City property available for location of cell towers, and future needs of wireless communications providers in the City including, without limitation, providers of cellular, PCS, radio or television transmissions or services, (collectively, including any successor technologies, frequencies or spectrums "Wireless Services"). 25A-3 (b) Pursuant to the Wireless Master Plan process, Consultant shall identify priority City Properties providing the greatest potential demand/revenue opportunity for New Leases (the "Priority Sites"). During the duration of this Agreement, Consultant shall have the exclusive right and authority to (1) contact wireless providers and market the City Properties as potential sites for New Leases (defined below); (2) accept submissions for proposals for New Leases and negotiate with wireless providers with respect to the terms and conditions of such New Leases; and (3) represent itself as the City's exclusive consultant with respect to such New Leases and the services being provided hereunder. The Consultant shall have no authority to bind the City and all proposals for New Leases shall be subject to City approval. The City agrees that it will forward all requests or inquiries regarding potential New Leases to the Consultant, for the Consultant to negotiate and coordinate before the proposal is formally submitted to the City. The City will use its best efforts to expedite the review of proposed New Leases that conform to the Form Lease Agreements and provide any comments within 30 days of such submission. The City further agrees to use reasonable efforts to expedite and facilitate the approval and execution of New Leases for the Priority Sites. Said grant of rights is specifically subject to City's reservation to itself of the absolute discretion to approve /disapprove, for any reason, any location and/or provision of any lease agreement recommended by Consultant. (c) Consultant shall inform City regarding new Wireless Services as they are developed by the industry and, at the request of the City Manager or his designated representative, assist the City in implementing a Wireless Services siting ordinance to regulate Wireless Services located in City right-of--way. Such assistance shall include providing information regarding space, height and frequency requirements of current and developing technologies, the ability of the technologies to be stealthed and/or undergrounded, and legal restrictions imposed on municipalities. 2. COMPENSATION City shall pay to Consultant, and Consultant shall accept from City, compensation for services under this agreement as follows: (a) Twenty Percent (20%) of the revenue from each New Lease (defined below) over the life of the New Lease, including any renewals or extensions (all such New Lease revenue payable to Consultant, including fees set forth in Section 5(c) below, is referred to collectively herein as the "Consultant Lease Fees"). Consultant shalt only be entitled to the Consultant Lease Fees to the extent actually paid by a Wireless Provider; if a Wireless Provider fails to pay the amounts due under the New Lease, City shall have no obligation to compensate Consultant, unless and until such amounts are recovered by the City. For purposes of this Agreement, "New Lease" means any lease approved by the City Council during the term of this Agreement (or where lease negotiations or the initial 2 5A-4 process for a lease has begun during the term of this Agreement and such lease is executed after the expiration or termination of this Agreement) for any portion of a City Property between the City and a third party relating to the construction, lease or maintenance of wireless transmission towers or the provision or transmission of any Wireless Services (and shall include any and all amendments, modifications or extensions of such leases). New Leases shall contain a provision requiring notice to Consultant of any change or modification in the terms of such New Leases. Consultant shall not be entitled to any revenues from any lease approved by the City Council prior to the Effective Date (an "Existing Lease"), except as set forth in Section 2(b) below. (b) If any Existing Lease is amended or modified after the Effective Date, where such modification results in the co-location of additional equipment or the inclusion of additional wireless providers at any existing site, Consultant shall receive twenty percent (20%) of the incremental lease revenue over the life of the lease attributable to such modification. (c) All New Leases shall contain provisions stating that any and all payments under such New Leases shall be paid into athird-party escrow or lockbox account (the "Lockbox Account") provided such a process is consistent with governmental accounting and finance practices and standards. In such case, Consultant shall be responsible for selecting the third-party to provide the Lockbox Account, subject to the City's reasonable approval of such third party, and Consultant shall pay all fees and expenses associated with opening and maintaining the Lockbox Account. The City and the Consultant shall execute instructions to the party providing the Lockbox Account (the "Holder"), instructing the Holder to distribute the Consultant Lease Fees directly to Consultant and the remaining funds directly to the City within 5 business days of receipt of such funds into the Lockbox Account, or such other commercially reasonable terms the parties may agree upon from time to time. (d). Upon termination of this Agreement, or upon the exercise of any option periods in a lease, the City, at its option, may "buy out" the remaining Consultant Lease Fees by paying the net present value of such remaining obligation utilizing a discount rate of 10%. (e) For purposes of calculating the Consultant Lease Fee, in-kind consideration such as public improvement, plus sales taxes, real estate or personal property tax reimbursement and insurance reimbursement, if applicable, shall be excluded from the New Lease revenues. The Holder shall provide Consultant a monthly report including a statement of account detailing transactions, and showing all amounts collected and uncollected from New Leases. 3. TERM The initial term of this Agreement shall be two (2) years commencing on January 1, 2009, unless terminated earlier in accordance with Section 12, below. The term of this Agreement maybe extended at the option of the City Council in its sole and absolute 25A-5 discretion for an additional two-year term. Any extensions thereafter shall be at the discretion of the City Council. 4. INDEPENDENT CONTRACTOR/EXCLUSIVITY Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. The City Manager shall designate a Staff Contact who shall be responsible for all coordination/supervision of Consultant. Consultant and Consultant's employees, and sub consultants and subcontractors shall communicate solely with the Staff Contact and any other City staff or official only if approved by the Staff Contact. Consultant and Staff Contact shall cooperate in selecting viable sites to be marketed to wireless providers. Final approval of each site and the terms of each lease are subject to recommendation by the Staff Contact and approval by the City Council. This agreement shall not be construed to impose upon the City, Staff Contact and/or City Council any obligation other than to consider recommended sites for leasing in good faith, and the City Council reserves its absolute discretion to approve, disapprove or modify the terms of any lease agreement. The failure of the City Council to approve any recommended wireless site lease shall not be a basis for breach of the City's obligations hereunder or entitle Consultant to damages therefor. City agrees it shall not negotiate or enter into any leases with wireless providers on City-owned land other than through Consultant at any time during the term of this Agreement. Any leases entered into in violation of this provision shall be deemed New Leases and subject to payment of the Consultant Lease Fees. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence 25A-6 arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement, (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement after 30 days notice to Consultant and opportunity to cure. Such termination shall not affect Consultant's right to be paid (i) for its time and materials expended prior to notification of termination and (ii) the ongoing Consultant Lease Fees in accordance with Section 2 for any New Leases. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION (a) Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, 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 gross negligence or willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 25A-7 (b) City agrees to and shall indemnify and hold harmless the Consultant, its officers, directors, agents, employees, consultants, special counsel, and representatives from liability for personal injury, 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 gross negligence or willful misconduct of the City or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. City acknowledges and agrees that Consultant (i) designs, develops and builds transmission towers for Wireless Services and (ii) offers consulting services similar to those to be performed under this Agreement to other cities and government entities, as well as private parties, and such activities shall not be deemed a conflict or interest. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 25A-8 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copies to: City Manager City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 and Santa Ana, California 92702 Telefacsimile (714) 647-6954 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Consultant: ATS Communications 22651 Lambert Street, Suite IOIA Lake Forest, California 92630 Telefacsimile (949) 768-6984 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, 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, 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. 10. ENTIRE AGREEMENT This Agreement represents the complete and total statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, 25A-9 orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. In granting or denying such approval, the City shall consider the professional, technical and financial ability of the assignee to perform the services required of the Consultant. Notwithstanding the foregoing, (i) Consultant may assign, hypothecate, and/or factor the Consultant Lease Fees for the purpose of financing Consultant's business without the consent of the City provided that any terms of such assignments shall not in any way affect or restrict the City's rights and obligations regarding payment of the Consultant Lease Fees, and, (ii) Consultant may use assistants, sub-contractors and sub-consultants, under its direct supervision to perform some of the services under this Agreement subject to reasonable approval by the Staff Contact and at Consultants own cost. 12. TERMINATION This Agreement maybe terminated by either party upon thirty (30) days written notice for anon-cured material breach by the other party or a reasonable period of time to cure if the breach cannot reasonably be cured within 30 days. In the event of any termination, Consultant shall be entitled to continue to receive the Consultant Lease Fees for the duration of the New Leases as set forth in Section 2 and the Lockbox Account provisions of Section 2(c) shall survive any such termination, subject to the City's buy-out rights in Section 2 (d) above. 13. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE 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. Both parties further agree that Orange County, California, shall be the venue for any action or 25A-10 proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA PATRICIA E. HEALY Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney TELECOM PARTNERS GROUP CORP dba ATS COMMUNICATIONS TONY INGEGNERI President 25A-11 EXHIBIT A SCOPE OF SERVICES Consultant shall maintain and update the Citywide Wireless Communications Master Plan designed to: • Reduce the number of wireless antennas necessary to provide service throughout the City. • Reduce the blight of communication antennas through an effective equipment screening process. • Create good wireless reception throughout the city. • Generate additional revenues for the City. Consultant will perform the following tasks in order to develop and implement the master plan: • Analyze existing facilities located within, and adjacent to, the City of Santa Ana, estimating projections of future demand for facilities in Santa Ana. • Meet with wireless providers in Southern California to assess and determine anticipated future network requirements. • Identify City owned property suitable for development of wireless communications towers to meet anticipated future needs. • Act as the City's exclusive agent to lease identified City property to wireless communications providers and facilitate lease negotiations, including terms relating to the development of additional improvements on City property in exchange for a portion of the lease value and • Oversee design and implementation of wireless facilities. Consultant shall coordinate the design and location of wireless communication facilities and stealth antenna with City staff to minimize impact to the City site and programs. Consultant shall review wireless radio signals to ensure wireless communications services will not impact any emergency services, safety personnel radio service, etc. • Consultant shall provide and manage a construction schedule for the City staff, assist in the verification of permits, and verify improvements to the satisfaction of City staff prior to the release of electrical service to the site. • Consultant shall inform City staff of new Wireless Services technologies as they are developed by the industry, and assist in implementing policies and procedures regarding the permitting and siting of those technologies in the City. City has provided Consultant information regarding the location of existing telecommunications facilities within the City, the location of any planned facilities within the next 12-month period and a list of all frequencies presently utilized at all existing sites (transmit and receive). 25A-12 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 25A-13 25A-14 ~ i REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 2, 2009 TITLE: PUBLIC HEARING - EIR NO. 2007-02, ZOA NO. 2008-04, DA NO. 2004-04, CUP NO. 2008-34, VTTM NO. 2008-04 AND SPR NO. 2008-05 TO ALLOW THE CONSTRUCTION OF THE CITY PLACE SKY LOFTS RESIDENTIAL TOWER DEVELOPMENT LOCATED AT 301 EAST JEANETTE LANE - TRANSACTION FINANCIAL CORPORATION, APPLICANT /~ ,~ ~ ~ /~G~E CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 S` Reading ^ Ordinance on 2rd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO .x'-17- C'% `~5 -~ _~ -`-'S', J !~ _ ,? i FILE NUMBER 1. Adopt a resolution certifying Final Environmental Impact Report No. 2007-02. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2008-04. 3. Adopt an ordinance amending Development Agreement No. 2004-04. 4. Adopt a resolution approving Conditional Use Permit No. 2008-34 as conditioned. 5. Adopt a resolution approving Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) as conditioned. 6. Adopt a resolution approving Site Plan Review No. 2008-05. PLANNING COMMISSION ACTION On January 12, 2009, the Planning Commission recommended that the City Council adopt a resolution certifying Final Environmental Impact Report No. 2007-02; adopt an ordinance approving Zoning Ordinance Amendment No. 2008-04; adopt an ordinance amending Development Agreement No. 2004-04; adopt a resolution approving Conditional Use .Permit No. 2008-34 as conditioned; adopt a resolution approving Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) as conditioned; adopt a resolution approving Site Plan Review No. 2008-05 by a vote of 5:1 (Yrarrazaval opposed, Turner abstained) to allow the construction of the City Place 75A-1 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 February 2, 2009 Page 2 Sky Lofts residential tower development located at 301 East Jeanette Lane in the Specific Development No. 59 (SD-59) zoning district. The Planning Commission made no changes to the modifications outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. _ f'~/~_ J y Trevino Ex tive Director Planning & Building Agency SK:rb ak\reporta\city place.020209.cc 75A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: JANUARY 12, 2009 TITLE: PUBLIC HEARING - EIR NO. 2007-02, ZOA NO. 2008-04, DA NO. 2004-04, CUP NO. 2008-34, VTTM NO. 2008-04 AND SPR NO. 2008-05 TO ALLOW THE CONSTRUCTION OF THE CITY PLACE SKY LOFTS RESIDENTIAL TOWER DEVELOPMENT LOCATED AT 301 EAST JEANETTE LANE Prepared by Sergio Klotz Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED ^ As Recommended ^ As Amended ^ Set Public Hearing For DENIED ^ Applicant's Request ^ Staff Recommendation CONTINUED TO Planning Mana r 1. Adopt a resolution certifying Final Environmental Impact Report No. 2007-02. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2008- 04. 3. Adopt an ordinance amending Development Agreement No. 2004-04. 4. Adopt a resolution approving Conditional Use Permit No. 2008-34 as conditioned. 5. Adopt a resolution approving Vesting Tentative Tract Map No. 2008- 04 as conditioned. 6. Adopt a resolution approving Site Plan Review No. 2008-05. DISCUSSION Request of Applicant Mr. Bob Bisno with Transaction Financial Corporation is requesting approval of various entitlement actions for a proposed high rise residential condominium tower, including certification of the environmental impact report, zoning ordinance amendment, a development agreement, conditional use permit, vesting tentative tract map and site EXHIBIT A 75A-3 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 2 plan review. The proposed project consists of a high rise tower, stacked townhomes and parking structure on an approximately two acre site. The residential segment will provide 333 condominium units within the tower and 20 stacked townhouses wrapping one-side of the parking garage. Several actions are required to entitle the project: a) the project was identified to have a potential adverse impact and therefore required an environmental impact report; b) a zoning ordinance amendment is necessary to amend the Specific Development No. 59 zoning standards; c) an amendment to the existing development agreement defining the terms and nature for the proposed development; d) a conditional use permit is required to allow a residential high rise project; e) a vesting tract map is requested to allow the subdivision of the existing property for residential condominium purposes; and f) the project location within SD-59 requires approval of the site plan. Property Description The City Place development comprises approximately 17.7 acres at the northeast corner of Main Street and Memory Lane. The site extends from Main Street on the west to Lawson Way on the east and from Memory Lane on the south to the city border on the north. The tower development proposed is situated on an approximately two acre parcel located on the northeast portion of City Place and generally bounded by Lawson Way on the east, Jeanette Lane along the south to the existing City Place development to the west and to the city border on the north. The subject site is located within Specific Development No. 59 (SD-59) zoning district and has a General Plan Land Use designation of District Center (DC), which permits residential development. Surrounding land uses include the Main Place Mall, commercial, retail and residential to the west; Santiago Park, offices and parking structure to the south; a senior residential development and offices to the east; and retail, offices and parking structure to the north (Exhibits 1 and 2). Project Description The City Place land use, planning and design provide a mixture of uses within a common setting. It stresses a people oriented environment where pedestrian and automobile traffic can co-exist on-site to create an experience of urban activity in a safe and high quality setting. 7 5A-4 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 3 City Place has been designed with the commercial component oriented to the west end of the site and the residential component on the east. The site has been aligned to allow the development to have a greater presence along all of the frontage streets. The location of the buildings along Main Street, a commercial corridor, provides a link to the corridor and a visual connection to the mall. Currently, the City Place commercial component includes approximately 57,700 square feet of retail and restaurant space. McCormick and Schmick's and Corner Bakery restaurants are open and operating, while the Geisha House restaurant is anticipating an opening in early 2009. Additionally, other commercial uses include a Pinkberry's, Coffee Bean, Bank of the West, nail salon and the recent opening of Mother's Market. Seventy-three live-work lofts have been completed extending from Main Street to the north along the curved City Place Drive to Memory Lane. The design of the loft units provides large storefronts, pedestrian level windows, zero setbacks and a height that is consistent in mass, scale and rhythm with other structures in the area. The townhouse component provides two designs: The Courtyards and The Park. Both the Courtyard and Park designs provide residential units within a courtyard, with all front doors facing the open area. These developments provide a total of 168 residential units. The proposed residential tower consists of 333 units plus 20 stacked townhouse units wrapping the parking structure for a total of 353 condominium units. The tower has been designed in a postmodern architectural style, with a sleek and contemporary appearance. The project site is located within the northeast section of the City Place development (Exhibit 3). Reaching approximately 366 feet into the air, levels of living space, four levels of above levels below. Combining the living space and levels of structure above grade is proposed. range in size from 804 to 1,999 square feet and two and three bedroom units. the tower provides 27 grade parking and two parking, a total of 31 The living units will consist of studio, one, 75A-5 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 4 Vehicular access to the site will occur along Lawson Way and Jeanette Lane. Loading areas have been provided within the tower including a service loading area along the north side of the site allowing adequate circulation on-site and architectural integration. Analysis of the Issues At the request of the applicant, on December 8, 2008 the Planning Commission granted a continuance of the action items to the January 12, 2009 agenda. On November 10, 2008, the Planning Commission opened and closed the public hearing for the City Place Sky Lofts Tower. After public testimony and discussion, the Commission continued the actions to the December 8, 2008 agenda. Environmental Impact Report The California Environmental Quality Act (CEQA) requires the preparation and approval of an environmental impact report (EIR) for this project. The environmental issues analyzed in the EIR include aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology and soils, land use and planning, hazards and hazardous materials, hydrology and water quality, mineral resources, noise, population and housing, public services, recreation, transportation and traffic, and utilities and service systems. A draft EIR (DEIR) was previously distributed to inform public decision makers, responsible and trustee agencies, and the general public of the potential effects of the proposed project. On April 23, 2007 a Notice of Preparation (NOP) and Initial Study (IS) was circulated for the preparation of Draft Environmental Impact Report No. 2007-02. On May 16, 2007 a public scoping meeting was held at the Santiago Park Lawn Bowling Clubhouse during the required 30-day public review of the NOP. The EIR was then prepared based on information provided in the IS, as well as issues expressed in the comments to the NOP and scoping meeting. In accordance with CEQA, a draft EIR was circulated for review and comment by the public, local, regional and state agencies, and interested parties on November 7, 2007 for a 45-day review period. On November 26, 2007 the Planning Commission held a public meeting to solicit input from interested member of the public on the DEIR; no public comments were submitted at this hearing. 75A-6 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 5 The City has evaluated the comments on environmental issues received from persons or agencies. In accordance with CEQA, each of the public agencies and interested parties that comment on the draft EIR will be provided a response to their comments. Within the DEIR is the Mitigation Monitoring Program for the project. In addition, the Findings of Fact and Statement of Overriding Considerations have been included (Exhibit 4). The DEIR has determined that implementation of the project would result in unavoidable adverse impacts to aesthetics, air quality and traffic. All other potential impacts associated with the project were determined to be less than significant or were provided with mitigation to reduce impacts to a level considered less than significant. Aesthetic impacts are a result of shade patterns cast by the height of the proposed tower and parking structure. Shade would be cast on Town and Country Manor Retirement Center east of the project and on residential uses west, northeast, south and southeast of the project site as well as park uses which are not shaded by existing site features. These areas would receive one-half hour more of shade at various times of the year. Air quality impacts are a result of construction and during the operation of the completed project. During construction .and the application of architectural coatings, thresholds established by the Southern California Air Quality Management District (SCAQMD) will be exceeded and result in a significant adverse short-term regional air quality impact. Additionally, after project completion and operation begins, emissions of reactive organic gases (ROG) produced by vehicle and stationary sources will result in exceedance of operational thresholds established by SCAQMD. These ROG emissions are based on the volume of project related trips attributable to the proposed project. As a result, the ROG emissions cannot be mitigated to below a level of significance and would constitute an unavoidable significant adverse impact related to air quality. Implementation of the proposed tower would result in temporary cumulative traffic impacts. The 2010 traffic conditions between La Veta Avenue and Town and Country Road cannot be mitigated to below a level of significance without amending the Master Plan of Arterial Highway (MPAH) road classification from a Major Arterial to a Principal Arterial. This road reclassification would provide one additional lane in each direction. In the year 2030, this road segment will operate at an 75~-7 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 6 acceptable Level of Service (LOS) with or without the proposed project. Daily volumes projected for 2030 were generally forecasted to be lower than the daily traffic volumes in 2010 because the build out of the MPAH would provide additional road capacity on the parallel north-south arterial highways such as Bristol Street to the west and Grand Avenue to the east. The additional road capacities on these arterial highways would alleviate traffic demand on Main Street by shifting some of the traffic demand on Bristol Street and Grand Avenue. Therefore, implementation of the proposed tower would create a temporary significant and unavoidable adverse impact to Main Street between La Veta Avenue and Town and Country Road until Bristol Street and Grand Avenue are built out to the MPAH designations. The environmental impact report has identified a significant and unavoidable impact to aesthetics, air quality and traffic. No feasible mitigation measures are available to reduce the effect. As a result of the impacts that cannot be mitigated to a less than significant level, adoption of a Statement of Overriding Considerations is required prior to approving the project. A Statement of Overriding Considerations is the process through which decision makers balance the economic, legal, social, and technological or other benefits of the proposed project against its unavoidable environmental impacts. Zoning Ordinance Amendment The specific development district is a customized zoning classification used for unique and/or mixed-use projects. In 1993, a specific development zone (SD-59) was approved on the site to accommodate an extremely intense mixed-use project. The entitlement included a 22 and 32-story office tower, 19-story residential tower (216 units), hotel, parking structure, restaurants, health club, retail space, cinemas and live theater and attached residences (64 units). The total project gross square footage was 1,964,770 with parking to accommodate 5,464 vehicles. In 2004, the specific development plan was amended to allow the current development of City Place incorporating the intent of the previous entitled project. The specific development text lays out criteria for the review of the current construction project. 75A-8 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 7 In their decision to amend SD-59 in 2004, the City Council directed the developer to investigate the feasibility of constructing a residential tower on a two acre parcel in the northeast portion of the site. After careful consideration, the developer concluded that a high-rise residential condominium project was feasible and appropriate, and submitted plans for review. As a result of the proposed project, the development of this parcel differs from the actions previously approved and therefore requires an amendment to the current SD-59 (Exhibit 5). The following highlights those changes: Land uses The primary change to SD-59 is to allow a residential tower by issuance of a conditional use permit. In 2004, in order to ensure the Council's opportunity to review a project on the remaining two acre parcel, SD-59 was amended to only allow one single-family residence per acre. By doing so, future development of the site beyond two single-family homes would allow the Council to provide future input and review. Additionally, staff is requesting changes that help to clarify the uses permitted on the commercial component. These changes would not add nor delete uses currently allowed within SD-59. The changes would merely provide clearer direction on the list of uses currently permitted. A variety of commercial uses will continue to be permitted with an emphasis on sit-down eating establishments and retail. Parking The current SD-59 standards do not address parking requirements for residential condominium units configured in a high rise. Unlike the current development on-site, the high rise will not provide two-car garages for each unit but rather provide parking within a parking structure design. The proposed parking garage is designed with two levels of parking below grade and four levels above grade. A total of 729 parking spaces will be provided including visitor parking. The parking accommodates two parking spaces per unit, with studio units assigned one parking space each and an additional 70 parking spaces for visitors. An amendment to SD-59 is needed to include these parking standards for Lot 1 of Vesting Tentative Tract Map No. 17242. 75A-9 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 8 Building Height The maximum building height will be adjusted to mirror the tower project as proposed, a maximum of 366 feet. This change would only allow this height on Lot 1 of Vesting Tentative Tract Map No. 17242. All other height restriction will remain in place. Development Agreement The development agreement is a legal contract between the developer and the City defining the terms and nature of development. In 2004, a development agreement was approved; the term of the agreement is eight and one-half years. It establishes development intensity, density, permitted uses and standards for the term of the agreement. In exchange for the City vesting the standards and changing allowable intensity, the development agreement requires certain public benefits (Exhibit 6). The main points of the amended agreement as proposed by staff are: 1. Term: The term of the development agreement will provide 10 years. If by the seventh year permits have not been obtained, additional fees will be applied including public art. 2. Inclusionary Housing Fee: An inclusionary housing fee of $3,000 per dwelling unit or a minimum $1,059,000 is required. As 353 units are proposed, this would generate $1,059,000. 3 . In-Lieu Park Fee : The developer is required to pay the City an in- lieu park fee of $7,841 per unit. This is expected to amount to a fee of approximately $2.76 million. 4. Conditions, Covenants & Restrictions: The developer is required to prepare and record CC&Rs to cover the residential units similar to those CC&Rs required of the first phase as well as Nexus and First and Cabrillo projects. These requirements limit the number of residents in each unit and require owner occupancy. Conditional Use Permit A conditional use permit has been requested to allow the residential condominium tower project. Should Zoning Ordinance Amendment No. 2008- 04 be approved, a conditional use permit will be required for any 75A-10 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 9 proposed residential condominium tower on Lot 1 within the SD-59 zoning district. The residential tower component is envisioned to create an urban element and focal point within this mixed-use environment. The overall plan for City Place encourages a variety of residential living opportunities linking the components and accentuating the District Center urban character. The residential tower units have been designed in a manner that is harmonious in scale and character with existing development adjacent to City Place, contributes positively to the surrounding commercial and residential areas, provides a development in keeping with the standards for high-rise residential towers. The high=rise tower will provide 333 units, while 20 stacked townhomes will line the southern side of the parking structure. The tower will position its entry at the western corner of Jeanette Lane accented by two water fountains. The townhouse units will front directly onto Jeanette Lane extending from the tower lobby eastward to Lawson Way. Each unit within the tower will be approximately 804 to 1,999 square feet in size and will range in studio, one, two and three bedroom units. The townhouses have been designed as either a loft style or more traditional townhome, two stories in height. These units will be 1,494 square feet in size and offers two bedroom and two and one-half baths. Open space has been provided in a variety of ways including common and private areas. All units, both within the tower and townhouses will provide open space in the form of private decks or balconies for the sole use of that unit. The average area size of the private space is approximately 100 square feet. Additionally, on the podium deck, common open space has been provided. This area contains both open and enclosed open space. A pool, spa, fireplace, seat walls, tables, chairs and chaise lounges will be provided throughout the open deck. In addition, enhanced paving will be provided on the amenity deck as well as landscaping located within plant containers. The outdoor space is approximately 35,169 square feet in area. Indoors, on the same level, a 1,032 square foot media room, 1,222 square foot common dining room and 1,503 square foot gym will be accommodated. All of these accommodations will be available for the use by all residents. Private storage space will be provided for each unit. The Sky Lofts Tower will have one storage space per unit within the parking garage that is a minimum of 40 square feet in size. 75A-11 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 10 Vesting Tentative Tract Map The proposed vesting tract map for this project satisfies two objectives set by Council to provide for-sale units. The proposed vesting map creates condominium subdivisions for each housing type. The condominium subdivision is necessary to provide the for-sale units. This encourages home ownership (Exhibit 7). The vesting nature of the map ensures that the standards to be applied to the project will be those adopted with the approval of the map. The map is designed to be in compliance with the applicable development standards found in Chapter 34 and the Specific Development document. Site Plan Review Santa Ana Municipal code requires a review by Planning Commission of all plans within a specific development area to ensure the project is in conformity with the specific development standards. The review also ensures that the buildings, structures and grounds are in keeping with the neighborhood and will not be detrimental to the development of the specific development zone. The proposed project is in compliance with all applicable development standards including the General Plan, Municipal Code and the City Place Specific Development Plan (SD-59), as amended. Additionally, the proposal is in keeping with the surrounding area and will improve the desirability of investment in the City. Finally, the project has been determined to be in compliance with applicable parking, landscaping and architectural provisions governing the project. The residential tower development project will enhance and provide a positive improvement to the north Main Street district though the development of a significant vacant parcel of land within the City Place development. The development of this site with high quality design, materials and finishes, the inclusion of a fountain, a ground level lobby and residential units, and the creation of a physical and visual link within City Place will help in energizing and strengthening this northern gateway area. The project will reinforce an active, vibrant urban lifestyle envisioned within the District Center designation of the General Plan. Additionally, the project will be of direct benefit to the community by providing additional housing opportunities in the City. The 75A-12 EIR No. 2007-02; ZOA No. 2008-04; DA No. 2004-04; CUP No. 2008-34; VTTM No. 2008-04; and SPR No. 2008-05 January 12, 2009 Page 11 project addresses many goals and policies of the General Plan by assisting in the growth of an economically viable corridor, provision of a variety of residential land uses and the construction of a high quality development project. As a result, it is recommended that the Planning Commission recommend that the City Council certify Environmental Impact Report No. 2007-02, and approve Zoning Ordinance Amendment No. 2008-04, Development Agreement No. 2004-04, Conditional Use Permit No. 2008-34, Vesting Tentative Tract Map No. 2008-04 and Site Plan Review No. 2008-05 pursuant to the findings and conditions attached (Exhibits 8 through 11). 75A-13 sk\reports\city place.011209.pc R1 R1 Il Al GENERAL AGRICULTURAL -B PARKING MODIFICATION C1 COMMUNITY COMMERCIAL C1-MD COMMUNITY COMMERCIAL-MUSEUM DISTRICT C2 GENERAL COMMERCIAL C3 CENTRAL BUSINESS C3-A CENTRAL BUSINESS-ARTISTS' VILLAGE C4 PLANNED SHOPPING CENTER CS ARTERIAL COMMERCIAL CR COMMERCIAL RESIDENTIAL C-SM SOUTH MAIN STREET COMMERCIAL DISTRICT -F FLOOR AREA RATIO GC GOVERNMENT CENTER Mt LIGHT INDUSTRIAL M2 HEAVY INDUSTRIAL MO MILRARY OPERATIONS 0 OPEN SPACE -OZ OVERLAY ZONE P PROFESSIONAL PCD PLANNED COMMUNTY DEVELOPMENT ~I au AR1 R1 PD PLANNED DEVELOPMENT PRD PLANNED RESIDENTIAL DEVELOPMENT R1 SINGIE-FAMILY RESIDENCE R2 TWO-FAMILY RESIDENCE R3 MULTIPLE-FAMILY RESIDENCE R4 SUBURBAN APARTMENT RE RESIDENTIAL ESTATE SD SPECIFIC DEVELOPMENT SP SPECIFIC PLAN E I R 07-2/ZOA 08-4/DA 04-4 ~,, CUP 08-34NTTM 08-4/S P R 08-5 ~ ~~~~-~ ROBERT BISNO 1" = 1000 FEET 301 EAST J EANETTE LAN E - = soo FEET P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP 7~kll B~T~ C i I y o I O r a n g e W ~ C O M M E R C I A L OFFICE N AND ~' Z ,, PARKING ¢ N ~ COMMERCIAL STRUCTURE Q J O F A N G E CITY L I M I T S RF ~~Riwq ~~ ~~~~ }.4 ~ ~ .,~,~ .. - ~ :. ~r tY': C J L W ::~.s... 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All other applicable chapters, articles and sections of the Santa Ana Municipal Code shall apply unless expressly waived or superseded by this ordinance. Use district regulations established in Chapter 41, Article III, of the Santa Ana Municipal Code for zoning districts other than the SD zoning district maybe incorporated herein by reference. PURPOSE The Specific Development No. 59 (SD-59) use district regulations are hereby established for the express purpose of protecting the health, safety and general welfare of the City by encouraging the use of innovative planning concepts and principles and promoting and enhancing the value of properties and encourage orderly development. The SD-59 regulations will establish a professional district that will entitle 57,700 square feet of commercial space at the northeast corner of Main Street and Memory Lane with ~ 540 for sale residential units further to Lawson Way. This area will be a mixed use district with eating establishments, support services and a residential component consisting of live-work1 townhouse units andl hi~~ rise tower. EIR 07-2/ZOA 08-4/ DA 04-4/CUP 08-341 VTTM 08-4/SPR 08-5 EXHIBIT 5 1 75A-40 PART L GOALS, OBJECTIVES AND POLICIES City Place Specific Development District is located within the northern area of the City. The City Place Specific Development District encompasses a large vacant property bounded by Main Street to the west, Memory Lane to the south, Lawson Way to the east and the City boundaries to the north. A regional mall, professional offices, a senior care facility and Santiago Park surround the project site. The City Place Specific Development District maintains a commercial corridor along Main Street while introducing a residential character along the eastern portion of the district, with a mixture of live-work, a~ townhome bnildi~gs a,nd high rise tower. The City Place mixed-use project is intended to be an addition to the commercial corridor and an infusion of housing to the district along the north Main Street section of the City. In addition, the mixed use plan for this site will result in the project becoming a node, or place of activity. The objectives of the City Place Specific Development Plan includes the provision of the following: 1. Along-term development that is of the highest architectural quality and design; 2. A landscaping plan that is complementary to a large scale mixed use development; 3. An exciting and visually cohesive development as viewed both internally and externally; 4. A bold but integrated sign program suitable for a mixed use project of this scale and scope; 5. A development that is consistent with the District Center designation of the General Plan and which implements the spirit and intent and policies of the General Plan; 6. Concentrated and internally integrated development rather than development that spreads activities into adjacent residential neighborhoods; 7. A development that provides special design themes which are expressed in building appearance and configuration, street and pedestrian area design, landscaping, lighting and signage, and also provides for pedestrian linkages internally and to the surrounding neighborhood, traffic and service buffering and transitions in architectural scale and character; 2 . 7 5A-41 8. Provision ofoff-street parking sufficient to service the development, consistent with the mix of uses contained in the project; 9. Provision or replacement of public streets, sidewalks, sewers, storm drains, traffic signals, lighting systems, and other public facilities and improvements, as necessary; a~ 10. Opportunities for cultural amenities and facilities serving the visual and performing arts which are open for public patronage..-s 1 1. A landmark mixed-use project along north Main Street across from Main Place Mall..-i 12. Maintain the existing streetscape pattern including sidewalk design, mature trees and light fixtures.-; 13. Introduce a mixture ofmulti-family housing types to the district..-i 14. Provide amixed-use project in scale and character with established commercial and residential structures along the north end of the district.-; and 15. Enhance the pedestrian experience through the development of new plaza areas and water features throughout the project as well as the intersection of Main Street and Memory Lane. 3 75A-42 PART II. PERMITTED LAND USES The categories of land uses to be included within the project area are: banks and similar financial institutions, retail and restaurants. In addition multi-family residential uses (excluding live-work units) are permitted. If a use is for any reason omitted from those specified as permissible or if ambiguity arises concerning the approximate classification of a particular use within the meaning and intent of this Plan, the determination shall be at the discretion of the Planning Manager. Such decision maybe appealed to the Planning Commission whose decision is final. Permitted Uses. a. Within Buildings A, B, C and D (as identified on site plan), the following uses are permitted: b. Retail sales uses including but not limited to clothing stores or boutiques; florists; news-stands; pet stores; photography studios; video stores; office and computer equipment book and stationery store; camera shop; shoe store sporting goods store; art gallery; craft store; cultural displays and related merchandising; bicycle store; pharmacies and drug stores; fabric shops; jewelry shops; furriers, design and furniture centers; cookware and gourmet specialty shop; office furniture store. Full service cafes and restaurants which may include incidental take out service. Full service cafes and restaurants shall be limited to those that provide sit-down dining areas and exclusive table service for ordering and delivering meals and beverages. d. Day care facilities e. Museums and libraries f. Theaters g. Within Building E, as identified on site plan: Retail use with a minimum of 25,000 square feet. h. Within the Courtyards and The Park, as identified on site plan: Multiple family residences as condominiums. 4 75A-43 ii. Uses incidental or ancillary to any residential use, such as swimming pool, sauna, j acuzzi, benches, playgrounds, BBQ and other outdoor recreational facilities. Within The Lofts, as identified on site plan: i. Permitted uses as identified in Section A. 1-5, 8, 9 and 11. ii. Uses incidental or ancillary to any residential use, such as swimming pool, sauna, Jacuzzi, benches, playgrounds, BBQ and other outdoor recreational facilities. Within Lot 1, as identified on Vesting Tract Map No. 2004-06 (County No. 16565): i. Single family residences at a maximum density of one unit per acre. k. Ancillary uses to commercial area: i. A maximum of five permanent outdoor sales kiosks or carts. The size and location of each Kiosk or cart shall be approved on a masterplan of such uses by the Planning Commission prior to their construction or installation. 2. Conditionally Permitted Uses The following uses are permitted upon the approval of a conditional use permit in accordance with the Santa Ana Municipal code: a. Within Buildings A, B, C and D (as identified on site plan): i. Uses open between midnight to 5:00 a.m. ii. Banquet facilities, subject to development and operational standards set forth in 41-199.1. iii. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use, except adult entertainment businesses. iv. Establishments selling or serving alcoholic beverages. v. Coffee houses houses or similar uses not specifically listed in Part II, Section l.d. of this ordinance. 5 7 5A-44 vi. Parking structures b. Within The Lofts, as identified on site plan: i. Live-work communities ii. Ceramic and pottery studios iii. Glass blowing and sculpturing studios iv. Coffee houses v. Temporary residential model complex and office c. Within The Courtyards and The Park, as identified on site plan: i. Temporary residential model complex and office d. _ Within Lot 1 as identified on Vesting Tract M~ No 2008-04~ (County No. 17242 i. High rise residential condominiums to a maximum of 333 dwellin_~units. ii. Stacked townh omes condominiums to a maximum of 20 _ dwellingunits dc. Within Building E, as identified on site plan: i. Retail grocery markets which are open at any time between the hours of midnight and 5:00 a.m. ef. Within the commercial component area: i. Certified Farmers Market for the sale of vegetables, fruits and other agricultural products on weekends and holidays only from 6 a.m. to 2 p.m. ii. Community oriented live performance theater. 3. Uses Not Permitted a. Schools, private or public. b. Medical office or clinics. 6 75A-45 c. Commercial uses with vehicular dive-through lanes or windows (i.e. drive-through restaurants, pharmacy or similar uses) are prohibited. d. Fast food or exclusively take-out restaurants. e. All other uses not expressly permitted or conditionally permitted in this ordinance 7 75A-46 PART III. DEVELOPMENT STANDARDS The City Place Specific Development District is intended to allow the development of a mixed-use project maintaining a commercial presence along Main Street, while introducing a mixture of multiple family housing to the eastern portion of the development site. The following general development standards are applicable to this project: A. Floor Area Ratio/Density. The following sets forth the maximum allowable floor areas for the various permitted use classifications of the project. The overall Floor Area Ratio ("FAR") of the Main Street Concourse project of approximately 2.54. This FAR represents the maximum intensity of development for the site. Floor Area Ratio (F.A.R.) The maximum floor area ratio for the project site shall be 2.54. The FAR is calculated by dividing the total square footage of the structures by the total square footage of the project site. Consistent with the General Plan, parking structures are not included in the FAR calculation. 2. Parcel Size The City Place development project site is 17.7 acres. Subdivision of the parcel shall be consistent with Vesting Tract Map No. 2004-06 (County No. 16565). In no case shall commercial buildable parcels be less than 6 acres in size and residential buildable parcels be less than 2 acres in size. 3. Screening All appurtenances shall be located outside any required setback and shall be screened from view. 4. Parking A. As a mixed-use development, the Specific Development standards recognize the opportunity to share parking amongst the mixture of commercial uses. In addition the SD 59 acknowledges that the mix and proximity of residential units and commercial space allows for the opportunity for a variety of transportation modes, primarily walking as an alternative. As such, the following parking is required: 8 75A-47 a. Parking has been calculated utilizing the Urban Land Institute methodology for shared parking. As such, the following square footage can be utilized within the commercial area of the City Place development project: i. For the first 23,300 square feet of restaurant, 33,800 square feet of retail, the parking requirement shall be 410 parking spaces. ii. Any additional development above item 4A.a. i. shall be parked pursuant to the City's parking standards then in effect. b. Residcntial High Rise Parking i. _ ~~ne, two and three bedroom units shall provide two parking spaces per unit. ii. Studio units shall provide one parkirl~ s acc per unit. iii. - In addition to items 4.b.i and ii 70 parkin ~~paces or an additional 10 5% whichever is greater shall be provided hc. Parking Setbacks i. Internal Loop Road: The minimum required setback for the parking area is 15 feet as measured from edge of sidewalk. sd. Screening All appurtenances shall be located outside any required setback and shall be screened from view. dc. Landscaping: Landscaping throughout the project shall be in compliance with the landscape plan attached. 9 75A-48 ii. The landscape plan shall be fully implemented prior to the issuance of any certificate of occupancy. 5. Open Space a. A minimum ground level open space shall be provided at a minimum rate of 60 square feet per unit. This ground level open space shall be centrally located on the site to provide access to all units. Private open space shall be provided at a minimum rate of 50 square feet per unit. b. For a high rise tower, common open space with a minimum of 35,109 square feet. Such open space shall provide at minimum the followin~:_~o~ol, spa, fireplace, seat walls, table; chair chaise loun~as well as mature landscaping 6. Signage a. All signage shall comply with the Santa Ana Municipal Code. b. Prior to issuance of any sign permits or certificates of occupancy for any building or portion thereof, a comprehensive sign program for the entire site, including directional signs and graphics, shall be submitted to and be approved by the Planning Division. 7. Plaza and Fountain Design a. The overall plaza design theme shall incorporate a minimum of 6 major pedestrian-level water features within the commercial component and 7 pedestrian level water features elements within the residential component. b. The plaza landscape palette must include a minimum of four (4) tree species, to be approved by the Landscape Development Associate prior to the issuance of any building permit. The minimum established size for palm trees shall be 30 feet brown trunk height. Non-palm tree species shall be a minimum of 20 feet in height and 60-inch bOX. 10 75A-49 c. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless specifically submitted to and approved by the Planning Commission ~::cted : ,;*~~ T* ~ F ..~.~~ ~,,:~ a,,,. .,. d. Plazas shall incorporate seating, benches and landscaping to provide visual interest and additional amenities within the plaza. e. Pedestrian amenities shall be provided such as lighting, planters, unit pavers, and bicycle racks. f. The color and appearance of the plaza furniture products and other elements must complement the overall plaza design and building architecture. g. Benches and pedestrian seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. h. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other project furnishings. i. Bike racks shall be provided at key activity locations within the plaza. All street furniture surfaces, pedestrian-level walls and amenities shall incorporate graffiti resistant coatings. k. Soft as well as hard surfaced areas shall be incorporated into the Plaza area. Plaza area paving shall consist of quality decorative elements. 1. Lighting height in the plaza area should be at a pedestrian scale. A range between 16 feet and 22 feet in the plaza area should be fully illuminated from dusk until dawn. The overall lighting shall be maintained at one-foot candle and incorporate other pedestrian-oriented lights, such as lighted bollards. Uplighting of trees and other site features is also required. m. The required plaza area shall include adequate provisions for the on-going maintenance of all plaza and pedestrian improvements. 11 75A-50 n. Plans shall include design details, materials and provisions for the on-going maintenance for all interior public areas within the plaza area. 8. Public Art a. Public art valued at one half of one percent of the overall project construction valuation is required. The cost of any water feature or portion thereof shall not be included for purposes of complying with the public art requirement. Public art maybe comprised of multiple art pieces, however, at least one such art piece shall be placed at the northeast corner of the project site adjacent to Main Street and Memory Lane. The public art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, andJor 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 for review and approval prior to issuance of any certificate of occupancy. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed prior to the issuance of any certificates of occupancy for the project. b. 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. c. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. d. 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. e. 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. f. 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. 12 75A-51 B. CC&Rs. Reciprocal easements and Conditions, Covenants, and Restrictions (CC&RS) tying the overall project together as an integrated development and providing for joint access, ingress, egress, drainage, property maintenance standards, trash pick-up operations, circulation and parking management shall be recorded with the first final map prior to for the first phase of development. The residential and non-residential portions may be described in separate sections but they must be tied together by a single master document. The Master CC&R's shall address trash and reciprocal use rights in the residential and commercial components. C. Building Height. On any lot or portion of a lotz except Lot 1 of Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242 in of the Specific Development Plan area no building or structure shall exceed 50 feet in height, as measured from the lowest adjacent finished grade. 2. On Lot 1 of Vestin~Tract Map No. 2008-04 (County Ma~No. .17242) no building) or_structure shall exceed 366 feet in he~ht as measured from the lowest adjacent rg ade. D. Setbacks. Setbacks at ground level are established to enhance pedestrian space throughout the district, create compatible relationships between existing and future building street elevations and recognize opportunities to create new open space resources, such as plazas, pedestrian ways and landscaped areas. Except as otherwise indicated, all setbacks shall be measured from the street side property line to the first building element or structure. No building, structure, or parking facility shall encroach into any required perimeter setback either at or below grade. For the purpose of this Plan, a street side property line is that line created by the ultimate right-of--way line of the adjoining public street. Minimum setbacks are as follows: a. Main Street (perimeter): The average building setback shall be 19.5 feet. The minimum setback shall be 8 feet. This setback area may include hardscape as shown on the approved site plan. b. Lawson Way (perimeter): The average building setback shall be 18 feet. The minimum setback shall be 7 feet. 13 75A-52 Memory Lane (perimeter): The average building setback shall be 11 feet 8 inches. The minimum setback shall be 3 feet 4 inches. Hardscape, landscape and water features shall be provided in the required setback as shown on the approved site plan. d. City Place ~~~ Drive (interior street set backs): The minimum setback shall be 15 feet measured from street curb. c. Jeanette Lane~~interior street setback : The minimum setback shall be 13 feet measured from street curb. 2. Required on-site perimeter landscaped setbacks shall not exceed an aggregate 33% slope. Within the interior of the project, retail canopies may project five (5) feet into setback area. E. Site Coverage And Open Space. 1. For purposes of this Section F, open space shall not include private streets or driveways, roadways or parking stalls. Open space does include landscaping, walkways, and covered arcades. 2. Residential open space maybe private common area or private yard but shall in no event include any space provided in required setback areas. The CC&Rs shall require that all residents be allowed access to all residential common areas in the project, subject to reasonable restrictions as maybe imposed for security and safety by property management. No required setback area shall be calculated as required open space. 3. Individual parcels or lots will not be limited in site coverage. Each parcel shall have a minimum 120 feet of street frontage. 4. Single family attached residential shall provide a minimum of 50 square feet of ground level private yard open space per unit, which open space shall be adjacent to the living, dining or kitchen area of each unit. Perimeter fence shall be provided and shall not exceed five feet in height on the exterior and 42 inches on the interior. 5. Condominium units shall contain a balcony with dimensions not less than six feet in any direction of private open space area. 14 75A-53 6. Pathways from the common area through the private yard open space shall not be included in the calculation of private open space area. F. Parking. Vehicular site access points will be provided from Lawson Way, Main Street, ~ Memory Lane and from Jeanette Lanc, as defined on the site plan. 2. There shall be no sharing of residential parking. 3. Parking gate locations and stacking distances shall comply with applicable Department of Public Works policies. 4. No partitions, walls or other obstructions shall be built or placed with the garages preventing the spaces from being used by residents for the parking of vehicles. 5. Recreational vehicle, boats, trailers or similar storage is prohibited on-site. 6. The townhouses shall be designed with vertical roll-up garage doors, where applicable. 7. All paved areas shall be sloped to drain. Finished slope of areas paved with asphalt concrete (AC) shall be not less than one percent. Finished slope of areas paved with portland concrete cement (PCC) shall not be less than one-half of one percent. Portland Cement concrete gutters shall be installed to receive drainage from asphalt concrete paved areas; such gutters shall be not less than three feet in width. 8. Residential parking is calculated separate from commercial designated parking and no provision is made for shared parking consideration. 9. All parking areas shall be surfaced with material so as to provide a permanent surface capable of withstanding the type of vehicular traffic to which such an area is likely to be subjected as follows: a. Covered Parking Areas -Passenger vehicle parking areas within or under building shall be paved with Portland Cement Concrete with a minimum compressive strength of 2,000 p.s.i. 15 75A-54 b. Open Parking Areas -Parking areas other than those within a building maybe paved with asphalt concrete. Asphalt concrete pavement shall be a minimum thickness of three and one-half for passenger vehicle parking areas. Thickness of asphalt concrete maybe reduced to a minimum thickness of two inches for passenger vehicle only traffic, provided an approved aggregate base course is constructed under the asphalt pavement. The minimum thickness of such base course shall be four inches. c. Surfacing, Parking or Drive Aisles -All off-street parking, vehicle maneuvering areas, turn-around areas, driveways, and private streets, shall be surfaced, and thereafter maintained with Portland Cement Concrete poured to a minimum thickness of S %2 inches. 10. Paved areas shall be designed to carry surface water to the nearest practical street, storm drain, or natural watercourse. Concentrated flows of water from parking areas shall not flow by gravity over any public property or pedestrian walkway, but shall be collected in an appropriate manner within the property confines and conducted under the sidewalk. 11. All parking areas shall be maintained in a safe and sanitary condition free of dust, mud, or trash, and shall be kept in good repair. Any alteration, enlargement, maintenance or repairs shall be pursuant to the aforementioned standards. 12. All parking spaces shall be double striped in a manner clearly showing the layout of the intended parking stall. Such striping shall be maintained in a clear, visible and orderly manner. G. Loading Areas. 1. Entrances and exits to loading facilities should be limited in number and shall not interfere with the flow of traffic along the perimeter streets. 2. Loading areas should be located so as to minimize potential for intrusion into residential portions of the project and adjacent neighborhoods while allowing for efficient utilization by commercial users. 3. Loading areas shall be located and designed to minimize direct exposure to public view. These areas shall be screened with landscaping and walls to reduce visual impacts. 16 75A-55 4. Loading areas shall be visibly separated from public entrances and parking areas. 5. Loading stalls shall be designed to not interfere with circulation or parking, and to permit trucks to fully maneuver on the property without backing up from or onto a public street. 6. Loading areas shall be graded to drain surface water to an alley, street or public storm drain. Surface water shall be conducted under any intervening public sidewalk by a drain approved by the Public Works Department and in accordance with a valid NSDES Permit. Under no circumstances shall surface water be allowed to collect in pedestrian areas. 7. The surface area used for any loading activity shall be paved with not less than 4 inches of asphaltic concrete on 8 inches of crushed rock base, or with 5 % inches of Portland concrete cement. Soil conditions or the nature of the trucking activity may necessitate greater requirements as determined by the Division of Building and Safety and a soils report prepared by a licensed soils engineer. 8. Each loading space aligned with and directly adjacent to a parking space shall be clearly designated, "LOADING ONLY." 9. At a minimum, separate loading areas shall be designated on the approved site plan or any modification thereto, for each adjacent retail shops/restaurants. 10. A loading areas for the project shall be able to accommodate a 55 foot semi-trailer for the Building E. H. Storage Areas/Mechanical Equipment. 1. All mechanical equipment shall be screened below parapets and situated to minimize visual impacts. 2. No outdoor storage shall be permitted. 3. There shall be no exposed television, ham radio, dish or other antenna. I. Refuse Collection Area. A refuse collection area shall be located at each loading dock per approved site plan. 17 75A-56 2. All outdoor refuse collection areas shall be visually screened from access streets and adjacent property by a complete opaque screen or by rolldown screened doors, or by landscaping and fencing. No refuse collection areas shall be permitted between a frontage street and the building line, unless adequate screening is provided. 4. The commercial and residential uses shall provide a trash pick-up operation agreement to be included in the CC&R's for the project. 5. Each trash enclosure shall have a minimum of six inch concrete slab in front of the enclosure that is at least the same dimension as the trash enclosure. 6. Townhouse unit trash vestibules shall be designed with a hose bib for washing out the area. 7. All trash enclosures throughout the project shall be designed with metal doors. J. Telephone, Electrical, Water, Gas, Cable TV, Storm Drains and Sewer Service. 1. All "on-site" utilities shall be placed underground. 2. Transformers or terminal equipment shall be visually screened from view from streets and adjacent properties and maybe located in concrete vaults below grade. 3. There shall be no exposed downspouts, scupper drains, electrical or mechanical limes on the building. All mechanical equipment shall be screened from view in an architecturally integrated manner. 4. All residential units shall be separately metered for electrical, gas and water service. 5. Sanitary sewer, storm drainage and water service shall be designed as a private system on-site. There shall be private water meters as outlined in Section 34-313.5 of the Santa Ana Municipal Code. 6. The utility lines in the townhouse drive aisle shall be laid out so as to not prevent the planting of trees and other landscape material in the drive aisle area. 18 75A-57 K. Maintenance. The entire project shall be maintained to exceed community standards for attractive and sanitary conditions. The CC&Rs for the project shall set forth the maintenance procedures applicable to the project. A maintenance agreement approved by the Executive Director of Public Works Agency shall be executed with the City for the maintenance of special pavement treatment, planting, street lights, etc. in the public right- of-way and in required easement areas. This agreement shall be executed with the City prior to recordation of any subdivision map and included or referenced in the CC&Rs for the project. 19 75A-58 PART N. DESIGN STANDARDS A. Interior Streets City Place ~ Drive. The tone and pedestrian experience of the project will be largely determined by "Ci~Place Drive," a wide interior street which will curve through the project. City Place T''° ~"°^^^•~-~^° is intended to lend a unifying component to the project as well as link different uses together. a. City Place Drive will consist of a 34' road bed with minimum 14 feet walkways on either side covered arcades may count up to nine rectalinear feet of the walkway. b. City Place Drive will not be a public street, but will be open to the public subject to parking management rules and regulations as approved by the City and contained in the CC&Rs for the project. All pedestrian walkways will be separated from the vehicular areas by curbs and gutters. d. Handicapped access ramps will be provided per the Code. e. Cit Place ~~set~se Drive will be designed to accommodate fire trucks, semi-trucks, and other service vehicles. f. City Place G~~ Drive, including all roadways, walkways, landscaping, furniture and fixtures will incorporate high quality materials and enriched paving. The overall effect should include dramatic lighting of landscaping, signs and buildings. g. Street furniture and pedestrian shelters are elements that would contribute well to the unified street edge. One style will be used throughout Cit Place ~~e Drive in order to create a unique sense of place. Seats, benches, trash receptacles, bicycle racks, telephones, light fixtures, potted plants, signage and banners consistent with the architectural themes and concepts and other miscellaneous street furniture shall be included in a coordinated manner throughout the Cit Py lace Exrse area. 20 75A-59 h. Tree wells shall be a minimum of three feet by three feet with protective tree grates and collars. 2. Residential Internal Streets. a. The internal circulation road within the residential component of the project will have a minimum 22' wide paved roadbed and a minimum 3 ft. of landscaping on either side. The road is intended to serve as an internal road open to residents and their guests, Property management, garbage carts, etc., but it will not be a publicly dedicated street. No heavy trucks will be allowed on the internal road. b. The internal circulation road will incorporate high quality masonry paved materials throughout the residential units. 3. Vehicular Loading Access Roads. a. Service roads will incorporate asphaltic concrete paving with curbs and gutters. b. All service roads will be accessible by semi-trucks (wheel base 50) and service vehicles. Colored paving materials and concrete maybe used as accent materials at entry locations (not including public right-of--way or required easement areas) on the property to visually define entryways. B. Building Mass, Form And Architectural Style. One critical component of the Cit Place ~~~~-~ c*r~et C~~a~oa~ design is the consideration of architectural style, mass and form. Architectural style shall impart a distinct building image. Mass shall relate to the desired scale and form shall be used to lend interest to the overall effect of the mixed use development. Building masses shall be simple in form and composed of strong geometric shapes including rectilinear forms with facade variations, round, columnar, stepped (terraced) or pyramidal shapes. Building mass forms maybe composed of ornate historical building styles or a combination thereof. 21 75A-60 2. General building form shall be indicative of the functions that take place within. Pedestrian spaces and entrances should be apparent and ceremonial. 3. Internal building structure shall be delineated with clear definition of floors and vertical supports. 4. Large flat unarticulated building faces shall be avoided. 5. Window fenestration must be carefully orchestrated to complement the basic masses, provide scale and modulation of building surfaces and to allow perferation of solid shapes. 6. The mass form and orientation of commercial buildings must be sensitive to adjacent residential areas and pedestrian linkages. 7. Building forms maybe exaggerated to express a particular style. 8. Special architectural enhancement shall be included at the pedestrian level of all commercial and retail buildings by utilizing added facade articulation and detail variation. C. Materials. The use of quality materials and detailing on highly visible surfaces will add elegance and maximize the statement of the style of the development. The City Place development will embrace innovative uses of contemporary architectural materials. 1. Colored ceramic tiles, glass blocks, stucco, plaster, masonry, stone, and colored wood or high quality metallic trims are acceptable finish materials. 2. Textured and smooth concrete, decorative or textured concrete blocks, or steel and high quality metallic panels are appropriate building materials. 3. Non-reflective glass shall be used at pedestrian level for viewing and window shopping purposes. Reflective glass at upper levels is acceptable, but shall be compatible with the design style of the rest of the City Place project. 4. The use of cloth awnings, fixed canopies, metal hand rails and other elements which cover and protect windows and pedestrian areas are encouraged. Signage on such elements must be consistent with the sign requirements contained in this Plan. 22 75A-61 5. Monolithic glass surfaces maybe used with other accent materials in a visually harmonious manner in special applications as accent but should not be used as the dominant architectural theme. Structures utilizing glass curtain walls as the predominant design element are not permitted. 6. Glass storefronts shall be provided facing all streets, Cit~Place ~~se~se Drive, and the pedestrian oriented public plazas. 7. All building and site finish materials, colors and designs shall be reviewed and approved by the Planning Division prior to submittal to Building Division Plan Check. Security gates for storefronts, if provided, shall be designed inside of the buildings. D. Color. 1. Choices of color should promote a lively, festive and warm atmosphere. Dull colors should be avoided or used in limited amounts. In general warm contrasting colors should prevail with bright colors and pastels used for accent and detailing. A sense of pageantry shall be promoted through the use of color on signs, lighting, flags and banners and other devices. E. Public Art. Various forms of public art maybe integrated into public spaces (not including public right-of--way) throughout the project. F. Detail. 1. Reveals, recesses and other architecturally sculptural elements shall be used to accent key features of the architectural design. 2. Upgraded light fixtures, door and window details and other feature items are encouraged. 3. Banners, flags and other colorful devices maybe used to accentuate linear relationship at outdoor areas but only when approved in conjunction with the signage program as set forth herein. 23 75A-62 4. All buildings shall incorporate architectural detail, multiple materials, generous landscaping, lighting effects and strong architectural design themes to soften building mass. All architectural elements including building components shall be part of an integrated design. The entire project shall have a cohesive statement of theme and style. 24 75A-63 PART V. LANDSCAPE MATERIALS AND DESIGN The design guidelines outlined here will assist in achieving a distinctive development character for the project while ensuring compatibility between commercial and adjacent residential land uses. These plants are recommended, however, actual plant choices maybe substituted depending on experience and actual soil conditions. The high quality of the development is reinforced through the coordinated design and selection of landscape and paving materials, and emphasis on unique landscape features. As phases are implemented, landscape plans (including landscape plans for any temporary parking areas) shall be approved which are consistent with implement these concepts of Exhibit A and B. Detailed landscaping plans prepared by a landscape architect, shall be submitted to and approved by the City of Santa Ana Planning Department and Public Works Agency (for public right-of--way areas) prior to issuance of a building permit and installed prior to issuance of a certificate of Use and Occupancy for the phase in question. Off-site landscaping shall be approved by the Department of Public Works as part of any street improvement plans. Schinus terebinthifolius, Brazillian Pepper, size: 24"-60" box, 15'-0" to 35'-0", informal spacing. A. Temporary Landscape Adjacent To Undeveloped Parcels. Areas of the site not developed in the initial phase may be developed as surface parking and if so developed shall comply with the following standards. A temporary landscape will be installed in all undeveloped areas. 1. Setback Areas -Will be fully planted with turf, trees and ornamental groundcover. 2. Parking Areas -Trees equal in number to one (1) per each ten (10) parking stalls, size: minimum 15 gallon. (These trees shall be arranged in eight and one-half (8-1/2) feet by eighteen (18) feet minimum planting bays surrounded by 6" high curb). 3. Berm -Architectural berm of sufficient height (but no greater than 3 feet) to screen surface parking lots shall be installed along Main Street and Owens Drive. Berm will be fully landscaped, and the size, number and type of planting shall be in accordance with the City's commercial development standards. Turf areas shall not exceed four to one slope. 25 75A-64 4. Canopy Trees -Planted informally will supplement streetscape plantings. Size: minimum 24" box. Species to be determined. The size, number and spacing shall be in accordance with the City's commercial development standards. Turf Types -Shall be consistent throughout project (Marathon II) 6. Shrubs -Shall be used .for screening of parking areas and for special effects at building entries. 7. Special Sculptural Features -Will accent undeveloped parcels, prior to project buildout. B. General Notes. All landscaping shall be maintained in a healthy and attractive condition. Maintenance should be carried out in accordance with established horticulture practices. Irrigation problems must be resolved promptly to assure plant survival. Prior to planting soil must be property prepared to assure plant survival. 3. No use of Queen Palms for the project interior areas. 4. No electrical, mechanical or plumbing apparatus shall be located in required setback areas. 5. All landscaped areas shall be irrigated using an automatic irrigation system. A schematic irrigation system employing pop- up type sprinkler heads, backflow preventer, automatic time clock, and where applicable, a quick coupler adjacent to all trash enclosures shall be provided. 6. On site trees will be spaced in coordination with required existing parkway trees. 7. The development will provide double-staking for all newly planted trees (on and off site). 8. Only low shrubs and/or ground cover shall be planted in landscape areas used for parking overhang. 9. Planting and landscape walls shall be used to screen all appurtenances, such as transformers, meters, trash enclosures, air conditioning units, etc. 26 75A-65 PART VI. SIGNAGE A. Intent. Every sign in the City Place project will be part of a planned sign program which will be submitted for Planning Division review and approval in accordance with the criteria set forth in this Plan and SAMC. The purpose of this section is to set forth permitted sign types and provide minimum standards for signs within the City Place Specific Development Plan. Consequently, this document identifies and specifies those design criteria for the planned sign program which are different than those set forth in the Code. In considering the planned sign program, the provisions of the Plan shall control. The City Place project is envisioned as a superior quality urban-style mixed-use complex, and architecturally spectacular. Environmental graphic design will be innovative and attractive but never excessive. Tenant identification on the perimeter of the project (i.e. external signage) will be held to a practical minimum. However, it is critical that the internal signage, particularly the signage along the City Place , be compatible with the kind of exciting dynamic environment which is intended to be created. B. Sign Message Categories. The project sign program shall address the following categories of information: • Project and major facilities identification at site entries • Tenant identification signage • Regulatory vehicular signage • Directional vehicular signage • Street identification • Informational pedestrian signage • Directional pedestrian signage • Building identification signage • Site directories and orientation maps • Service signage • Parking level and area identification signage • Visitor directional and informational signage • Building address signage • Building/site directories • Typical door identification signage • Restroom and telephone identification signage • Operation information signage 28 75A-66 Loading dock information Loading dock numbers Construction barricade C. Physical Sign Types. Physical classification of project signage will be by the following categories: 1. Freestanding signs. 2. WalUcanopy signs. 3. Projecting signs. 4. Marquee signs (Theater Only). 5. Under canopy/window/hanging signs. D. General Criteria. The following design guidelines generally address the design criteria for the sign program. Color and typography of signs will be evaluated on the basis of aesthetics and legibility rather than conformance to strict criteria. 2. Intermittent lights, bare bulbs, neon, illusions of motion, or other mechanical movement are acceptable only within the interior of the project. Such signage could be used with respect to the theatre, or restaurants. Such signs shall not be visible from the perimeter public right-of--way or the residential development in the project. 3. Well designed pageantry systems consisting of flags and banners, festoons, flag canopies and related displays will be permitted on the interior of the City Place project, provided they are consistent with the overall design of the signage plan, and do not create a safety hazard and do not adversely affect adjacent land uses. 4. The sign program shall acknowledge approval of carefully worded on-site circulation directional signage. E. Criteria For Individual Sign Types will be determined by the approved sign program. Shall conform to size limitations as outlined in SAMC. 1. Freestanding Signs Freestanding signs shall conform to SAMC requirements. 7~~9 67 2. WalUCanopy Signs. a. All signs need not replicate a specified shape, design or materials. Diversity will be allowed, provided that the signs relate to each other well even though they are configured differently. 3. Projecting Signs. a. Within the interior portions of the project, such as along the Cit~Place Cie, one projecting sign per pedestrian level tenant maybe provided. b. The project may provide any number of such signs with mixed types so long as the style of the signs area aesthetically compatible. Projecting signs shall be located no closer than 15 feet from one another. The sign face of each projecting sign shall be compatible with the scale of the space being identified. 4. Marquee Signs. The theater may have a major marquee sign at the theater entrance. The marquee sign maybe large enough to accommodate the informational requirements of the uses being identified, may employ changeable copy and appropriately sized based on unit and frontage. 5. Signs Under Canopies And Marquees. The area of any sign under a canopy or marquee shall not exceed Santa Ana Municipal Code. Such signs shall meet all minimum Building Code height clearances. 6. Temporary Identification Signs. a. Per Santa Ana Municipal Code b. Per Santa Ana Municipal Code c. Per Santa Ana Municipal Code 7. Submission of City Place Plan Signing Design Program. 75~~68 Project applicant shall submit a planned project sign program for review by the Planning Division in accordance with the standard Planning Division procedures and this Plan. 31 75A-69 PART VII. LIGHTING Street lighting can be used to help unify the City Place_and add to the "festive" atmosphere being sought. On-site parking lot and building light fixtures may vary from one sub-area to the next but illumination levels shall remain consistent and not compete with street lighting and signage. Appropriate special lighting effects that will be compatible with the overall design concept are encouraged. Street lighting and parking lot parking contribute to the safety and security of the project. Unique lighting fixtures may provide easy identification of the project for motorists. Lighting potentially visible from adjacent property shall be subdued and incorporate cut-off shields or be oriented to the interior of the project. Lighting shall not interfere with vehicular traffic. A. Street Lighting/Exterior To The Project. (Public Right-of--Way) 1. All street lighting along Main Street, Memory Lanez Lawson Way and Jeanette Lane: shall be of singular design placed at regular intervals, mounted atop concrete or metal standard and installed per City specifications as required. 2. Light standards, poles, and ballards shall be of common design with durable finishes and materials to create unity along the project perimeter, in accordance with the City's commercial development standards. B. On-Site Parking Lot, Pedestrian Lighting, Cit. Pace ~ Drive. 1. Pedestrian scale lighting should illuminate entry ways, courtyards, parking lots and other such areas. 2. Lighting should be used to enhance landscaping and reinforced architecture, with dramatic uplighting or wall shadow effects with plant materials encouraged. 3. Parking lot light fixtures and bollards shall be consistent in styling with the design theme proposed for that sub-area of the project. 4. The use of neon and other specialized lighting effects that would reinforce the attractiveness of the project to pedestrian traffic and incorporate the design theme of the project may be used. 5. The use of white or clear string lighting in trees around outdoor pedestrian areas maybe used. 6. Washing large wall areas with light to create shadows from landscape materials maybe used. 752 70 7. Lighting along the Ci~i Place ~~e~se Drive shall be carried out as part of the unified scheme to help create festive recreational atmosphere. C. On-Site Building Lighting. 1. Service area lighting for large uses shall be contained within service yard boundaries with light sources concealed. 2. Building illumination and architectural lighting will be creative and reinforce the design theme. Indirect wall lighting or "raw wall washing" overhead downlighting, will be utilized throughout the commercial development. In residential areas, warm simple lighting will be employed. These components could include uplighting of building entrances and courtyard trees, subtle soft lighting effects, washing of walls with light from concealed ground sources. 4. In residential areas the use of specialized lighting effects such as neon and internally illuminated signs shall be avoided as shall any blinding, bright or flashy effects. 5. Lighting shall not cast any glare onto adjacent lots and streets outside the perimeters of the City Place project in such a manner as to decrease the safety of pedestrian and vehicular movement. 6. Architectural lighting should be used to articulate the particular building design. D. Required Minimum Maintained Illuminance Levels shall be Per Santa Ana Municipal Code and approved by the Police Department. 753 71 PART VIII. OPERATIONAL STANDARDS Unless herein permitted to the contrary, all commercial activity shall be conducted within a building. 2. All activity on the site shall be designed, built, operated, and verified in compliance with the mitigation monitoring program of the certified final Environmental Impact Report for this project. 3. Should special assessment, Mello Roos, or other financing be utilized, written disclosure of such financing shall be disclosed in writing to all purchasers and lessees within the project. 4. The following study shall be reviewed, approved and from time to time modified and approved by the City shall be implemented and maintained throughout the project: Trash operations plan 5. All residential units within the project shall be built, subdivided and sold for individual ownership. 6. All trash consolidation areas within the project including residential shall be maintained and operated for the recycling of solid waste materials to the satisfaction of the Public Works Agency. 7. The trash pick-up operational plan (letter agreement with the City) shall be incorporated into the CC&R's of the project. 8. All circulation and parking operational procedures for the entire project including but not limited to the bollards, loading zones, parking management, and trash pick-up shall be maintained by the project management and included by reference in the CC&R's. 9. The CC&R's shall include provisions to prohibit the construction of walls in the townhouse two car garage that will disrupt the ability to park resident vehicles in both spaces. 10. The CC&R's shall prohibit recreational vehicle parking or storage on-site. 11. The CC&R's shall contain provisions to preclude exposed television, ham radio, dish, or other antenna and mechanical equipment. 75A472 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and MAIN STREET CONCOURSE, LLC Dated: , 200 EtF: 07-2lZOA 08-4/ LEA 04-4/CUP 08-34/ VTTM 08-4/SPR 08-5 75~-'~36 DRAFT FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND MAIN STREET CONCOURSE, LLC This FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("First Amendment") 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 MAIN STREET CONCOURSE, LLC, a California limited liability company ("Owner" or "Property Owner"). 1. RECITALS. This First Amendment is entered into with reference to the following facts: 1.1 Original Agreement. The City and Owner's predecessor in interest, Orient Corporation of America, Inc., a California corporation ("Orient"), are parties to that certain Development Agreement entered into on or about May 3, 1993 and recorded as Document Number 93-0385606 with the Recorder's Office of the County of Orange (the "Original Agreement"). (1) The purpose of the Original Agreement was to facilitate the development of the mixed-use project contemplated by the City's Specific Design Zoning Designation SD-59 (SD-59), Vesting Tentative Map No. 14408 and EIR No. 93- 1.2 Amended And Restated Agreement. Orient's interest was subsequently acquired by Owner, who thereafter with the City entered into that certain Amended and Restated Development Agreement on or about February 14, 2005, and recorded as Document Number 2005-000258102 with the Recorder's Office of the County of Orange (the "Amended Agreement"). (1) Owner at that same time obtained approvals for a modified project, including an amendment to SD-59, together with a new Vesting Tentative Map No. 14408 and EIR No. 2004-01. (2) Section 5.4 of the Amended Agreement provides that Owner shall consider the design and application for an additional residential, for-sale, high rise tower on its 18 acre property in the general location as specified in Exhibit F to the Amended Agreement. (3) The Owner has now proposed construction of a 31 story, 353 residential unit for-sale (i.e., condominium) project in the general location specified in Exhibit F to the Amended Agreement. This project would require amendment to SD-59 and other discretionary approvals by the City, including a new tentative tract map and Environmental Impact Report. 75A-74 DRAFT (4) In light of the Owner proposal to construct the 31-story, 353 residential units, for-sale (i. e., condominium) project, the Owner and City have agreed that it is appropriate to adopt this amendment to the Amended Agreement. 1.3 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 First Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This First Amendment is intended to assure adequate public facilities at the time of development. (2) This First Amendment is intended to assure development in accordance with the City's General Plan, applicable Specific Plans and Specific Development District No. 59, as modified concurrently herewith by Ordinance No. NS- (3) This First Amendment will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District No. 59. (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 First Amendment. (5) This First Amendment 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 First Amendment are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.4 Owner. Owner represents and warrants that it has a legal or equitable 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 "Sky Lofts Property"). The Sky Lofts Property is approximately 2.01 acres in size and is currently vacant. 75A-75 DRAFT 1.5 Approval of Owner. Owner further hereby represents that it has approved this First Amendment and is authorized to enter into this First Amendment. 1.6 Planning Commission -Council Hearings. On November 10, 2008, 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 First Amendment. 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 First Amendment. On December 1, 2008, 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 First Amendment. 1.7 Council Findings. The Council finds that this First Amendment 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 .200_, the Council adopted Ordinance No. NS- approving this First Amendment. The ordinance becomes effective thirty (30) days thereafter. 2. DEFINITIONS. In the First Amendment, initially capitalized terms used but not defined shall have the following meanings unless the context otherwise requires: 2.0.5 "Executive Director" means the Executive Director of the City's Planning and Building Agency or designee. 2.1 "Final Design" means the final design documents for a work of public art, which is set forth in greater detail in Section 5.2 et seq. of this First Amendment. 2.2 "Map" means Tentative Tract Map No. 17242, approved concurrently with this First Amendment. 2.2 "Property Owner" or "Owner" means Main Street Concourse, LLC, being the person, persons, or entity having a legal or equitable interest in the Sky Lofts Property, and includes Main Street Concourse LLC's successors in interest. 2.3 "Sky Lofts Property" is the real property described in Exhibit A and referred to in Exhibit B. 2.4 "Sky Lofts Project" is the development of the Sky Lofts Property as generally set forth in SD-59, Tentative Tract Map No. 17242, Conditional Use Permit No. 2008-34, Environmental Impact Report No. 2007-02, and Site Plan Review No. 2008-05. The Sky Lofts Project does not include the development of any property within SD-59, other than the Sky Lofts Property. The Sky Lofts Project generally is described as follows: 75A-76 DRAFT (1) a residential multi-family condominium tower including 271evels of residential condominiums above four (4) levels of above grade parking and two (2) levels of below grade parking. Within the tower a total of 333 residential condominium units will be provided and an additional twenty (20) stacked townhomes will line the south side of the parking structure. (2) The residential condominium units shall range in size from 804 to 2,000 square feet and provide nine (9) feet from floor to finished ceiling for the townhomes and podium level thru level twenty-five (25) and twelve (12) feet from floor to finished ceiling on levels twenty-six (26) and twenty-seven (27). (3) At the grade level, an approximately 2,900 square foot lobby shall be provided. Immediately outside of the lobby shall be two (2) water features announcing the pedestrian arrival point. (4) A 33,690 square foot common space amenity deck shall be installed above the parking structure and include a pool, spa, cabana/lounge, outdoor fireplace, tables and outdoor barbeque. (5) The Podium level shall consist of 4,590 square feet of enclosed common space including a gymnasium, dining and kitchen area, and media room. (6) The height of the tower will be approximately 366 feet including the mechanical equipment penthouse. The parking garage will contain 729 parking spaces. (7) All residential units in the Sky Logs Project shall be condominiums, i. e., not residential units rented by the Owner. To be considered to be condominiums, the Owner shall obtain all necessary approvals for sales of individual residential units, including but not limited to, (a) a recorded, final subdivision map, (b) recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs), (c) a final, unconditional "public report" issued by the California Department of Real Estate pursuant to the Subdivided Lands Act. 2.5 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 under certain circumstances by this First Amendment, and is subject to refinement at the time of installation, by agreement of the Owner and the Executive Director. 3. EXHIBITS. The following documents referred to in the First Amendment are attached to this First Amendment and are identified as follows: 75A-77 DRAFT Exhibit Referred to Desi ng ation Description in Section A Sky Lofts Property Legal Description 1.4 B Sky Lofts Property Graphical Description (Site Plan) 1.4 C Public Art Locational Plan 2.5 D Remaining Offsite Mitigation Measures 5.3 4. GENERAL PROVISIONS. 4.1 Amendment and Restatement. This First Amendment amends, restates and supersedes the Amended Agreement only as explicitly set forth herein, and only as it relates to the Sky Lofts Property. In all other respects, the Amended Agreement shall remain in full force and effect. 4.2 Sky Lofts Property Exclusively Subject to the First Amendment. Until released pursuant to the provisions of Section 8.6 below, no property shall be released from this First Amendment until Owner has fully performed its obligations arising out of the First Amendment. 4.3 Effective Date; Duration of First Amendment. (1) The "Effective Date" of this First Amendment shall be the date that the City Council ordinance adopting this First Amendment becomes effective, which date is thirty (30) days after the City Council meeting at which such ordinance is adopted, unless it or Ordinance No. NS- (the amendment to SD-59) 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 of competent jurisdiction. (2) The term of this First Amendment shall for seven (7) years from the Effective Date ("Initial Term"); provided, however that the Owner may request a single three-year extension ("Extended Term") from the Executive Director of the Planning and Building Agency, which request shall not be unreasonably denied. Nothing herein is intended nor shall it be interpreted 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. (3) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the term of Tentative Tract Map No. 14230, including any lot line adjustment or merger of lots (or any other tentative map approved by the City relating to the Sky Lofts Property 75A-78 DRAFT subsequent to the Effective Date of this First Amendment), shall not expire during the term of this Development Agreement remains in effect. (4) Notwithstanding subsections (2) or (3) hereof, if, at the end of the original or any modified term, the Sky Lofts Property is in the process of being developed, the term of this First Amendment shall be further extended until such construction in process is completed, not to exceed an additional three years after expiration of the original or modified term. (5) The expiration of this First Amendment shall not terminate any land use approvals approved concurrently with or subsequent to the approval of this First Amendment, but shall merely end the period as to which such approvals are vested against subsequent changes in applicable law pursuant to Section 5 of this First Amendment. (6) Upon the expiration or termination of this First Amendment 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 First Amendment from the public records as to the property or any applicable portion thereof. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. The rules, regulations and official policies governing the permitted use(s) of the Sky Lofts Property, with respect to and only with respect to the permitted use(s), density, height, size of structures and intensity of use of the Sky Lofts Property, and provisions for reservation or dedication of land for public purposes and any other exactions or mitigation measures applicable to the Sky Lofts Project shall be those rules, regulations, and policies applicable to the Sky Lofts Property as of the Effective Date, including those set forth in SD-59, as amended concurrently herewith. 5.1.1 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Ca1.Rptr. 228, 690 P.2d 701, the City retains the right to enact police power regulations on matters not covered by this First Amendment ("Reserved Powers"), including without limitation: (1) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Sky Lofts Property in accordance with this First Amendment. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Sky Lofts 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: 75A-79 DRAFT (a) Existing taxes, assessments, fees and charges, except as otherwise specifically provided in this First Amendment; (b) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; (c) 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 (d) Procedural rules of general City-wide application. (2) No vested rights as to any requirements in this Section 5.1.1 either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5:1.2 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Sky Loft Project construction, shall be subject to applicable design standards and guidelines, including without limitation SD-59 and Chapter 41 of the Santa Ana Municipal Code, in effect at the time that any development approval shall be sought for the Sky Loft Project or any unit or structure contained within the Sky Loft Project. 5.1.3 Minor Changes. Upon application of Owner, the Executive Director may approve minor modifications to the discretionary approvals vested pursuant to this First Amendment, 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." 5.1.4 Processing Fees. All fees and charges intended to cover the City's costs associated with processing development of the Sky Lofts 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 First Amendment, shall apply to the development of the Sky Lofts Property. 5.1.5 Amendments or Additions to Citywide Fee Programs. This First Amendment shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this First Amendment, which shall be applicable to the Sky Lofts Project or the Sky Lofts Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to the Sky Lofts Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Sky Lofts Sky Lofts Project impacts which were analyzed in the Environmental Impact Report prepared for the Sky Lofts Project, or 75A-80 DRAFT (b) duplicate any exactions, project design features, conditions of approval, agreements, or mitigation measures contained in the Development Plan for this First Amendment. 5.2 Development, Construction and Completion of Work of Public Art and Other Consideration. In consideration for the extraordinary and significant benefits to the City set forth in this Section 5, the Owner has been legally vested under paragraph 5.1 with regard to the permitted uses of land, density, and intensity of use, Owner shall comply with the provisions of Section 5 of the First Amendment with respect to the Sky Lofts Project. 5.2.1. Schedule For Work of Public Art. Owner shall design, construct and maintain a work of public art only if it does not Commence Construction of the Sky Lofts Project during the Initial term and instead requests and is granted an extension as set forth in section 4.3(2) of this First Amendment. For purposes of this Section 5, "Commence Construction" means those actions (i. e., valid building permit issued by City and substantial, hard construction costs expended in good faith reliance thereon) that would create a vested right in Owner pursuant to Avco Community Developers, Inc. v. South Coast Reg'1 Comm'n, 17 Cal. 3rd 785, 791 (1976), and its progeny. Facilities to Be Constructed Trigg_erin Event 1. Submit Final Design of Public Art. One year from the commencement of the Extended Final design must conform to Public Art Term, if applicable. Locational Plan. 2. Install Public Art. Prior to the City's issuance of Certificate of Use and Occupancy for any portion of the Sky Lofts Project, or two and one-half (2 1/2) years from the commencement of the Extended Term, whichever comes first. With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this First Amendment 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. 75A-81 DRAFT 5.2.2 Responsibility For Costs of Work Of Public Art. The City and Owner agree that Owner shall be responsible for all costs associated with the design, construction, maintenance and repair of the work of public art provided for in the Public Art Locational Plan. 5.3 Remaining Offsite Mitigation Measures. The parties acknowledge and agree that the sole remaining offsite mitigation measures which must be funded or constructed by Owner are as set forth in Exhibit D to this First Amendment. 5.4 Inclusionary Housing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit as a condition of issuance of each building permit which includes one or more residential units, or $1,059,000.00 for all residential units upon the issuance of the initial building permit, whichever is greater. This fee shall be used by the City to build new or substantially rehabilitate existing affordable housing in the City. 5.5 In-Lieu Park Fee. The Owner shall pay a fee of $7,841.00 per unit in lieu of its obligation established by section 34-204 et seq. of the Santa Ana Municipal Code; provided, however that the fee may be increased to $10,568.00 per unit if the Owner does not Commence Construction (as that term is defined in Section 5.2.1) during the Initial Term. This in-lieu park fee shall be paid at the same time as those fees the payment of which is currently deferred by the City pursuant to City Ordinance No. NS-2775, or any extension thereto. 5.6 Compliance With Governmental Requirements. Owner shall carry out the design, construction, and operation of the Sky Lofts Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Sky Loft Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Sky Lofts 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 Sky Lofts Property and the Sky Lofts Project, and all other provisions of the City and its Municipal Code (as they apply to the Sky Lofts Property and the Sky Lofts Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. (collectively "Governmental Requirements"). 5.7 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) Repair of perimeter walls will be specified in the CC&R's in the event of damage. 75A-82 DRAFT (2) 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.., Main Place Regional Shopping Mall, and surrounding property within SD-59 zoned and/or devoted to commercial use), and the regional and local street grid adjacent to the Sky Lofts Project (e.g., SR- 22, I-5, SR-57, Main Street, Town & Country Drive), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (3) The CC&R's shall reflect that balconies may not be used for storage. (4) Terms and Content: CC&R's are to be in effect for at least 66 years. ii. Any proposed modifications to the foregoing provisions of the CC&R's will require approval by the Executive Director. 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. The City shall, at least every twelve (12) months during the term of this First Amendment, review the extent of good faith substantial compliance by Owner with the terms of this First Amendment. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the First Amendment at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the First Amendment after the annual review set forth in Section 6.1 above, the City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the Executive Director, the First Amendment 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 First Amendment shall not constitute or be asserted by any party as a breach of the First Amendment by Owner or City. io 75A-83 DRAFT 7. DEFAULT. 7.1 Owner Events of Default. Property Owner is in default under this First Amendment 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 finding 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 First Amendment 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 First Amendment; (3) Failure to comply with Governmental Requirements; (4) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this First Amendment. 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 of the Amended Agreement, 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 default(s) at the earliest reasonable time after receipt of the notice of 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 First Amendment 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. 11 75A-84 DRAFT (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 First Amendment. (4) Non-performance shall not be excused because of a failure of a 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 First Amendment 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 First Amendment 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 First Amendment 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 First Amendments set forth in the First Amendment, or to enjoin any threatened or attempted violation of the First Amendment; or to obtain any remedies consistent with the purpose of the First Amendment. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 12 75A-85 DRAFT ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This First Amendment shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Sky Lofts Property or any portion of the Sky Lofts Property or any improvement on the Sky Lofts Property by any mortgage, deed of trust, or other security device (or any number of them) securing financing with respect to the Sky Lofts Property or its improvement (any such encumbrance, a "Mortgage"). 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Sky Lofts 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 First Amendment (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 of an Owner Event of Default that cannot practicably be cured by the Mortgagee without taking possession of the Sky Lofts Property (which defaults shall not include defaults "not susceptible of being cured" as defined below), (i) 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; (ii) said Mortgagee shall proceed diligently to obtain possession of the Sky Lofts 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 13 75A-86 DRAFT nominee, by assignment 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 Sky Lofts 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 Sky Lofts Property 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 First Amendment; 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 First Amendment 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 immediately execute and deliver a new First Amendment or amend this First Amendment with such party, upon the written request therefor by such party given not later than one hundred twenty (120) days after such parry's acquisition of the Owner's right, title and interest hereunder. Subject to the terms of Section 8.4 above, such new or amended agreement shall be substantially the same in form and content to the provisions of this First Amendment, 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 First Amendment. Upon execution and delivery of such new or amended agreement, the City shall cooperate with the new owner, at the sole expense of said 14 75A-87 DRAFT new owner, in taking such action as may be necessary to cancel and discharge this First Amendment and to remove Owner named herein from the Sky Lofts Property. 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 First Amendment with respect to the Sky Lofts Property, or any portion thereof, the City shall execute and deliver to Owner appropriate release(s) of further obligations imposed by this First Amendment 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 First Amendment, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This First Amendment constitutes the entire understanding and agreement of the parties with respect to the matters set forth in this First Amendment. This First Amendment supersedes all negotiation or previous agreements between the parties respecting this First Amendment, including without limitation the Original Agreement and/or the Amended Agreement. All waivers of the provision of this First Amendment must be in writing and signed by the appropriate authorities of the City or of Owner. All amendments to this First Amendment 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. Upon the completion of performance of this First Amendment 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 Sky Lofts Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Sky Lofts Project is a private development for purposes of Government Code Section 65864 et seq.; (b) the City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Sky Lofts Property or in connection with the Sky Lofts Project; and (c) Owner shall have the full power and exclusive control of the Sky Lofts Property subject to the obligations of Owner set forth in this First Amendment. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this First Amendment are part of this First Amendment. 9.5 Captions. The captions of this First Amendment are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this First Amendment. 15 75A-88 DRAFT 9.6 Consent. Where the consent or approval of a party is required in or necessary under this First Amendment, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this First Amendment. 9.8 Time of Essence. Time is of the essence for each provision of this First Amendment of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this First Amendment 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 First Amendment 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 First Amendment. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this First Amendment to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an First Amendment on the effect of such federal or state law or regulation upon the First Amendment, 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 First Amendment and the meaning of the provisions hereof. In addition, the provisions of this First Amendment 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 First Amendment, and in signing this First Amendment it does so with full knowledge of any rights which it may otherwise have, and it has freely signed this First Amendment 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 First Amendment, and without duress or coercion, whether economic or otherwise. 9.12 Recording. The City Clerk shall cause a copy of this First Amendment to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this First Amendment. 16 75A-89 DRAFT IN WITNESS WHEREOF, this First Amendment 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 Properly Owner. Dated this day of , 200 THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W.FLETCHER City Attorney MAIN STREET CONCOURSE, LLC, A California Limited Liability Company By: EMG-MAIN STREET LLC, a California limited liability company, Its Manager By: BDC LLC, a California limited liability company, Its Manager By: Bisno Development Company LLC, a California limited liability company, Its Manger By Robert H. Bisno, Manager and Chief Executive Officer 1~ 75A-90 STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 75A-91 EXHIBIT A Sky Lofts Property Legal Description To be inserted 75A-92 EXHIBIT B Sky Lofts Property Site Plan To be inserted 75A-93 EXHIBIT C Public Art Locational Plan 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 Lawson Way at or near its intersection with Jeanette Lane, with the final location to be determined as specified in Section 5.2 et seq. of this First Amendment. The public art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and/or capture or reinforce the unique character of the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed as provided in Section 5.2.1 of this First Amendment. Review and approvals required by the Planning Commission .pursuant to Section 5.2 et seq. 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 i. 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. 75A-94 vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. 8. To be eligible, the proposed work of public art shall not be: i. amass produced object from a standard design; ii. a reproduction, whether produced by mechanical or other means, of an original work of art; iii. 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. 75A-95 EXHIBIT D Off-Site Mitigation Measures Improvement Location 1. Landscape Median Main Street from City Place Drive to Town and Country Drive 2. Street Reconstruction Lawson Way from Memory Lane to northern property limit of Sky Lofts Property from curb to curb 3. Slurry Seal Memory Lane from Main Street to Lawson Way 75A-96 ~. a a ~ f e T a t a~ y { 7~ a ~~H ; ~~1[[~ ~~~'gEpy~ yi~gp~ ~~ ~~ ~la -~~~~~`~ ~' S5 ipgMB~ qq i y G ~a~ ~~E3~~~~ ~~~~ a~C~ ~ 4~4 ~ S ~ ' " €~~ Ea~a~ gd8 yy°~ ~ 9 a ~ °~ ~ ~ l€ g Id~~ Igsgq ~ gy gg~ ~~~h58h ~r~~ ~~~~ ~~ I~~~ P~~ ~ i3 19 9 ~ ~ ~ pI ~~ ~~ $~ ~ ae ~ak~• ~~~g ~€~~ ~ ~iaR ~y g~ ~ I i Q $ ~ + b b `spa 8 ~~ a Fa >:a Y$~7 ~5 _9., d @~~ ~~; N a C e gg e3 ~° T __ _ o R O ~ Q ~- __ _____ ______ _ Z ___ ' __- _ ---~_ - - - - _ - - -- .~z;:'~` our i i s aoa? - - - - - •p 'a .- '. I$ E. C ~ L ~ - ~ -- -- ----- --- ---- ~~~ _ o ~~SS AyyON - ^K _ _ ____+__________ _ - x ~a __ ~ _ ~ ~ a Q ooi ~ ~ m ~ I %~ ~ IO ~ 3 ~ I ~~~ ~ ~ i i ~' ~ ~a ~ ~ 1 ~_ ~~` 1 ~ S~ I i i \~ LL1 W. 1 t§~ N ...c+§ L o~~ I ~ O ~ k ~` ~~°E 1 °6, pp~ ~If~. ] ~ el Q \ 1 w W ` ~ ~~ ~, ~ ~ I ~\ J ,~ ~R , .~ ~ V ci' 2` ~ ~ Z g ~ ~ ~ ~ ,-, ~~~~ '^ _~- I V, I ' ~. _ W ~~-~~ \ i ~ i ,~ , ~ ' °~ ~~ , ~_ ~ , i i ~ ~ ~ ~ ~~ i I ! l I~ i I i i ' I I i ~ i I J___ _____+ai r_________ \ w ~-ANYONl1p91~VM1 F EIR 07-2/ZOA 08-41 r.w nw w~n~~rf no owi _. 7 ~~~~~ Conditional Use Permit No. 2008-34 January 12, 2009 Page 1 of 2 Findings of Fact A. Will the proposed use provide a service or facility, which will contribute to the general welfare of the neighborhood or community? The proposed conditional use permit to allow the construction of a residential high rise will add to the mixture of housing opportunities available within the city. The proposed multi- family residential use (City Place Sky Lofts) within the City Place development will provide a service to the community by providing for-sale, high-quality residential housing stock that will enhance the property values of the surrounding neighborhoods. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. B. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety or general welfare of the persons residing or working in the vicinity? The approval of the conditional use permit will not be detrimental to persons residing or working in the area because the use, as conditioned,. will not create negative or adverse impacts. Environmental Impact Report 2007-02 has been prepared for the proposed project, identifying potential impacts, over- riding considerations and mitigation measures aimed at reducing any environmental impact associated with this project. The addition of persons within a two acre vacant portion of north Main Street and the City Place development will assist in promoting the economic viability and enhance the livability for this area. C. Will the proposed stability or future surrounding area? use adversely affect the present economic economic development of property in the The residential tower is a suitable and appropriate use within the mixed-use development and the District Center setting. The addition of residential units should increase the patronage to surrounding businesses, thereby enhancing the viability of the businesses and assist in identifying City Place as a viable mixed-use community. EIR 07-2/ZOA 08-4/ DA 04-4/CUP 08-341 ~q~$R 08-s 8 Conditional Use Permit No. 2008-34 January 12, 2009 Page 2 of 2 D. Will the proposed use comply with the regulations and conditions specified in the chapter of the Santa Ana Municipal Code for such use? As conditioned and the approval of Zoning Ordinance Amendment No. 2008-04, the proposed project will be in compliance with all applicable regulations and conditions imposed on high rise residential units, pursuant to Chapter 41 of the Santa Ana Municipal Code. E. Will the proposed use affect the General Plan of the City? The proposed project will not adversely affect the General Plan. The residential high rise tower is consistent with the General Plan Land Use Element designation of District Center and the proposed amendments to Specific Development No. 59. The proposal is supported by the Land Use Element Goal: 2.0, To promote land uses which enhance the City's economic and fiscal viability; and Goal 3.0, To promote a balance of land uses to address basic community needs. Further, General Plan Land Use Element Policy 1.3 supports high-density residential development within the City's District Centers as a part of a master-planned mixed-use development. Also, Policy 1.4 promotes the maintenance and fostering of a variety of residential land uses in the city. Therefore, a residential high rise within a mixed-use setting will assist to further the goals of the District Center designation of the General Plan. 75A-99 JANUARY 12, 2009 PAGE 1 OF 2 Conditions for Approval Conditional Use Permit No. 2008-34 is approved subject to compliance to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in revocation of the conditional use permit. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP 06-46) . 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. The buildings shall be of constructed with quality and durable exterior materials as shown on the architectural plans, material boards and material specifications submitted for this project. 4. Prior to issuance of building permits, the interior building amenities shall be submitted for review by the Planning Division and shall be at the same or higher level of quality as the Nexus residential tower (CUP 2005-10) and City Place live- work lofts (CUP 2004-28) The amenity package submitted for review shall include but not be limited to flooring, staircase railings, doors and hardware, kitchen appliances and cabinetry, dual bowl sinks and fixtures, the walls, tiled shower enclosures and kitchen countertops of stone the or stone slab, or their equivalent. At minimum they will include EIR 07-2/ZOA 08-4/ DA 04-4/CUP 08-341 VTT~ - ISP J,~~S JANUARY 12, 2009 PAGE 2 OF 2 a product line for the appliances requiring the equivalent or higher grade, all cabinets be of a stain grade, the use of smooth wall and ceiling interior drywall finish and washers and dryers in each residential unit. 5. Interior floor to finished ceiling heights will be a minimum of nine feet on the podium level through level 25 and a minimum of 12 feet on levels 26 and 27. For the stacked townhomes, interior floor to finished ceiling heights shall be a minimum of nine feet. 6. Covenants, Conditions, and Restrictions (CC&Rs) must be approved by the Planning Manager prior to the issuance of any building permit. Such CC&Rs must contain at a minimum, the following: a. Project maintenance. b. Standards shall be established for the exterior maintenance of each unit within the community. c. Graffiti removal will be required within 48 hours. d. Assignment of repair of perimeter walls will be specified in the CC&Rs in the event of damage. e. CC&Rs are to be in effect in perpetuity. f. Any proposed modifications to the CC&Rs will require approval by the City of Santa Ana. g. The use of professional management to ensure a quality operation and maintenance. 7. CC&Rs shall include residential occupancy standards similar to Phase I of the City Place development (CUP04-28). 8. A tentative tract map shall be approved prior to the applicant exercising the rights conferred by this conditional use permit. 9. This conditional use permit shall be null and void and of no force and effect unless and until the City Council, in the exercise of its sole discretion, approves a tentative tract map for this project. 10. Prior to issuance of building permits, the exterior building amenities, materials and finishes shall be submitted for review and approval by the Planning Division. 75A-101 Vesting Tentative Tract Map No. 2008-04 January 12, 2009 Page 1 of 2 Findings of Fact A. The proposed project, as conditioned, and its design and improvements are consistent with the District Center land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) is consistent with the land use designation and density prescribed in the General Plan and will have no adverse affect on the surrounding land uses in the area. B. The proposed project, as conditioned, conforms to all applicable requirements 'of the zoning and subdivision codes, as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act provisions. Vesting Tentative Tract Map No. 2008-04 is in keeping with the provisions of the site plan review (Development Project No. 2006-46) and Chapters 34 and 41 of the Santa Ana Municipal Code, all of which pertain to the subdivision of land and development standards for the site. Further, the map will be consistent with Zoning Ordinance Amendment No. 2008-04. C. The project site is physically suitable for the type and density of the proposed project. The project site consists of approximately two acres of land within Specific Development No. 59. The proposed subdivision contains many street frontages, maintaining adequate frontage for each parcel. Vesting Tract Map No. 17242 has been determined to be capable of supporting the type and density of the proposed project. There are no physical constraints on the site to preclude development. EIR 07-2/ZOA 08-41 DA 04-4/CUP 08-341 VTTM 08-4/SPR 08-5 7~~4B1~~12 Vesting Tentative Tract Map No. 2008-04 January 12, 2009 Page 2 of 2 D. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidable injure fish or wildlife or their habitat. There are no wetlands or unusual flora or fauna on or around the project site. No development surrounding this site will be substantially affected by this proposal. Environmental Impact Report 2007-02 has been prepared for the proposed project, identifying potential impacts, over-riding considerations and mitigation measures aimed at reducing any environmental impact associated with this project. E. The design or improvements of the proposed project will not cause serious public health problems. The proposed infill development within a mixed-use development is for a residential high-rise tower and will be in compliance with all regulations and conditions specified in the Santa Ana Municipal Code and the Specific Development No. 59 development standards in conjunction with the proposed conditions and building requirements. F. The design of improvements of the proposed project will not conflict with easements necessary for public access .through or use of the property within the proposed project. There are no easements that would affect the use or development of this site. Approval of Vesting Tentative Tract Map No. 2008- 04 (County Map No. 17242) will not create conflicts with the easements necessary for public access through the property, as no such easements currently exist. Public access will be allowed to the site as this development, as an urban project concept, encourages pedestrian and public activity. 75A-103 JANUARY 12, 2009 PAGE 1 OF 3 Conditions for Approval Vesting Tentative Tract Map No. 2008-04 is approved subject to compliance to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in revocation of the vesting tentative tract map. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP 06-46) . 2. The Covenants, Conditions and Restrictions (CC&Rs) must be approved by the Planning Manager prior to the issuance of any building permit. Such CC&Rs must contain at a minimum, the following: a. Project Maintenance. b. Standards shall be established for the exterior maintenance of each unit within the community. c. Graffiti removal will be required within 48 hours. d. Assignment of repair of perimeter walls will be specified in the CC&Rs in the event of damage. e. CC&Rs are to be in effect in perpetuity. f. Any proposed modifications to the CC&Rs will require approval by the City of Santa Ana. g. The use of professional management to ensure a quality operation and maintenance. 3. A final map must be approved and recorded prior to issuance of building permits. EIR 07-21ZOA 08-4/ DA 04-4/CUP 08-34/ VTTM 08-4/SPR 08-5 ~~~=1~04 JANUARY 12, 2009 PAGE 2 OF 3 4. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. 5. Two copies of the recorded final map and CC&Rs shall be submitted each to the Planning Division, Fire Department, Building Division and Public Works Agency within 10 days of recordation. 6. Prior to issuance of building permits, the interior building amenities shall be submitted for review by the Planning Division and shall be at the same or higher level of quality as the Nexus residential tower (CUP 2005-10) and City Place live- work lofts (CUP 2004-28) The amenity package- submitted for review shall include but not be limited to flooring, staircase railings, doors and hardware, kitchen appliances and cabinetry, dual bowl sinks and fixtures, the walls, tiled shower enclosures and kitchen countertops of stone the or stone slab, or their equivalent. At minimum they will include a product line for the appliances requiring the equivalent or higher grade, all cabinets be of a stain grade, the use of smooth wall and ceiling interior drywall finish and washers and dryers in each residential unit. 7. Provide for lighting and landscape maintenance. The lighting plan and design will be reviewed by the Planning Division during the lighting plan check phase. 8. Development, operational and maintenance standards shall be established for the number, style and location of all outdoor fireplace, seating, benches, tables, chairs, lounges and similar furniture. These items shall be reviewed and approved when the landscapes are submitted into plan check. 9. Common area amenities shall comply with the following: a. Pursuant to the Plan (Exhibit 3), plazas, drive aisles, pedestrian walkways and common area amenities for the project, shall be completely installed prior to the issuance of a certificate of occupancy for the project. 75A-105 JANUARY 12, 2009 PAGE 3 OF 3 10. Pedestrian walkways shall be provided to establish pedestrian connectivity throughout the project site and to existing pedestrian connection points as shown on the Plan (Exhibit 3). The amenities to be provided along this pathway shall include decorative concrete, accent lighting, landscape planters with vertical landscape as shown on the Landscape Plan and two fountains. These improvements must be completed prior to occupancy of the first unit. 11. Benches and pedestrian seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. 12. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other plaza furnishings. 13. All street furniture surfaces, pedestrian-level walls and amenities shall incorporate graffiti resistant coatings. 14. The podium level shall include amenities such as informal modern outdoor furniture and seating areas, decorative pavers, landscape trees and plant material. 15. Prior to issuance of building .permits, the exterior building amenities, materials and finishes shall be submitted for review and approval by the Planning Division. 16. The podium level amenity deck shall be completely installed prior to the issuance of any certificate of occupancy. 75A-106 10. Phasing of landscape implementation shall be compatible with the construction schedule for the entire project, as per the approved site plan. 11. All fountains and water features throughout the project shall be plumbed for non-potable "gray water" for conversion when such water is available. 12. A xeriphytic landscaping materials and irrigation design shall be used for this project. In addition, the plant palette along the southerly edge of the project shall be compatible with that of Santiago Park, where the park is adjacent to the project. 27 75A-107 bk: 1 /27/09 RESOLUTION NO. 2009-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CERTIFYING THE ENVIRONMENTAL IMPACT REPORT FOR THE SKY LOFTS PROJECT, APPROVING A MITIGATION MONITORING PROGRAM, AND ADOPTING CERTAIN FACTS, FINDINGS AND A STATEMENT OF OVERRIDING CONSIDERATIONS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City has under consideration application to construct Sky Lofts, the final portion of the City Place Development located at 301 East Jeanette Lane. The Sky Lofts proposed project consists of a high rise tower, stacked townhomes and a parking structure on an approximately two acre site. The residential segment will provide 333 condominium units within the tower and 20 stacked for-sale townhouses wrapping one-side of the 729-space parking garage. 1. As a result of public input, the City prepared a Draft EIR (Environmental Impact Report) for this proposed project, which was submitted for public comment to all responsible agencies, the State Clearinghouse, neighboring communities and districts, neighborhoods in the vicinity and the requesting public. 2. All comments to the Draft EIR were considered and responded to in the proposed Final EIR (which includes the Draft EIR and errata). 3. A proposed mitigation monitoring plan has been prepared, as has the facts, findings and statements which are attached to this Resolution. B. At its regular meeting of January 12, 2009, the Planning Commission of the City of Santa Ana, following a duly noticed public hearing, recommended to the City Council that it adopt this Final EIR, the mitigation monitoring plan, and certain facts, findings and statements. 75A-108 C. The City Council has fully considered this matter, and all public testimony, at a duly noticed public hearing held at its regularly scheduled meeting of February 2, 2009. D. All attached documents, including the Final EIR, the mitigation monitoring plan, the findings and approvals, the Request for Council Action dated February 2, 2009, and the record of proceedings are incorporated herein by this reference as though fully set forth. Section 2. The City Council has reviewed and considered the information contained in the Final EIR prepared with respect to this Project. The City Council has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, the Final EIR meets all requirement of CEQA, including but limited to: finding that the Final EIR adequately addresses the impacts of the project; that it identifies and through the mitigation monitoring plan imposes all feasible mitigation measures which will reduce all of the significant environmental impacts of the Project to a level of insignificance, except those unavoidable impacts described more specifically in the statement of overriding considerations; discusses a reasonable range of alternatives to the Project; identifies the environmentally superior alternative; and based upon all of which and the record as a whole the Council chooses to approve the Project. The City Council hereby certifies and approves the Final EIR, the mitigation monitoring plan, the facts, findings and Statement of Overriding Considerations attached to this Resolution, and directs that a Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Section 3. Pursuant to Title XIV, California Code of Regulations ("CCR") § 735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5, the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2009. 75A-109 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the attached Resolution No. 2009-X:XX to Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Council, do hereby attest to and certify the be the original resolution adopted by the City 75A-110 City Place Sk.v Lofts Final Environmental Impact Findings CERTIFICATION OF THE FINAL ENVIRONMENTAL IMPACT REPORT, FINDINGS AND APPROVALS FOR THE CITY PLACE SKY LOFTS PROJECT 1.0 CERTIFICATION OF THE FINAL ENVIRONMENTAL IMPACT REPORT Pursuant to California Code of Regulations (CCR), Title 14, Section 15090, the City of Santa Ana hereby certifies the Final Environmental Lnpact Report (EIR, State Clearinghouse No. 2007041088) for the City Place Sky Lofts project. The Final EIR was completed in compliance with the California Environmental Quality Act (CEQA), Public Resources Code Section 21000, et seq and the State CEQA Guidelines, CCR, Title 14, Section 15000, et seq. The City certifies that it has been presented with the Final EIR and that it has reviewed and considered the information in the Final EIR prior to approving the City Place Sky Lofts project, as set forth herein. The City further certifies that the Final EIR reflects the independent judgment and analysis of the City of Santa Ana. The Final EIR consists of the November 5, 2007 Draft EIR, the March 10, 2008 Responses to Comments Report (RTC) and the project Mitigation Monitoring and Reporting Program (MMRP). 2.0 FINDINGS Having received, reviewed and considered the information in the record before it, including the Final EIR, which is hereby incorporated by reference, the following Findings are hereby adopted by the City as required by CEQA (specifically, CCR, Title 14, Sections 15091 through 15093) in conjunction with the approval of the project, which is set forth below. The City is the Lead Agency for the environmental documentation for the project evaluated in the Final EIR. Based on the substantial evidence in the record before it, the City finds that the Draft and Fina] EIRs were prepared in compliance with CEQA and the CEQA Guidelines. The City finds that the Draft EIR was prepared by consultants retained by the City and by City staff, subject to independent review and judgment of the City. The City finds that it has independently reviewed and analyzed the Draft EIR and the Final EIR for the City Place Sky Lofts project, that the Draft EIR which was circulated for public review reflected its independent judgment, and that the Final EIR reflects the independent judgment of the City. The City has based its actions on full appraisal of all viewpoints, including all comments received up to the date of the adoption of these Findings, concerning the potential environmental impacts identified and analyzed in the Final EIR. In addition, the City has reviewed and considered the MMRP, which is contained in the Final EIR and which describes the process to ensure implementation of the mitigation measures that have been incorporated in the approved project to reduce or avoid significant adverse impacts of the project on the environment. This MMRP will ensure CEQA compliance during project implementation. F: I P20J-EN ~l City Place Sky Loftsl Final EIRI Findings-SOCI Findings-SOC. doc Page 1 Januarv 23, 2009 75A-111 Place Skv Lofts Fina! Environmental bnpnct Report Findings 3.0 ENVIRONMENTAL REVIEW PROCESS 3.1 PROJECT BACKGROUND AND OBJECTIVES The 2.008-acre City Place Sky Lofts project site is situated in the northeastern part of the City of Santa Ana and is bordered by the City of Orange to the north. The project site is located at the northwestern corner of Jeanette Lane and Lawson Way. Local access to the project site would be provided from Lawson Way. Regional access to the project site would be provided by Interstate 5 (I-5) to the south and west and State Route 22 (SR 22) to the north. Main Street Concourse, LLC is proposing the City Place Sky Lofts project, which is a high-rise residential development consisting of a 27-story residential tower; four levels of two-story town homes; four above-grade parking and two below-grade parking levels; and amenity deck (Podium Level). A total of 353 for sale residential units will be provided. The 31 story residential tower, which includes a four level above ground parking structure, will include 333 units and 20 two-story town homes will be located adjacent to the parking garage. The objectives for the City Place Sky Lofts project are to: • Develop the City Place as a commercial and residential center that provides entertainment, shopping, dining and living opportunities for the residents of Santa Ana and surrounding area, and that maximizes the advantages of the site's location on Main Street in terms of its visibility and proximity to SR 22. • Develop the vacant project site with land uses to help meet the residential needs in the northeastern part of the City of Santa Ana. • Provide a long term development that is of the highest architectural quality and design. • Provide a landscaping plan that is complementary to the project. • Provide an exciting and visually cohesive development as viewed both internally and externally. • Provide development that is consistent with the District Center designation of the General Plan and which implements the spirit and intent and policies of the General Plan. • Provide concentrated and internally integrated development rather than development that spreads activities into adjacent residential neighborhoods. • Provide a development that provides special design themes which are expressed in building appearance and configuration, street and pedestrian area design, landscaping, lighting and signage, and also provides for pedestrian linkages internally and to the surrounding neighborhood, traffic and service buffering and transitions in architectural scale and character. • Provide off-street parking sufficient to service the development, consistent with uses contained in the project. • Include the provision or replacement of public streets, sidewalks, sewers, storm drains, traffic signals, lighting systems, and other public facilities and improvements, as necessary. • Maintain the existing streetscape pattern including sidewalk design, mature trees and light fixtures. • Introduce a mixture of multi-family housing types to the district. • Maximize the residential density of the vacant site in City Place to support the purpose of the General Plan designation of District Center, which is intended for high intensity development. The City of Santa Ana is the Lead Agency for the EIR, as defined by Section 21067 of CEQA. The City of Santa Ana has determined that the EIR is required for the City Place Sky Lofts project pursuant to Section 15063 of the CEQA Guidelines to assess the potential impacts resulting from approval of the project and F: IPROJ-ENf/ICiry Place SkyLoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 2 January 23, 2009 75A-112 Place Sky Lofts Final Environmentallmpact Report Findings other discretionary actions necessary for its implementation. This EIR is intended to serve as a project EIR for the City Place Sky Lofts site plan approval and other related implementation actions. To implement the project, the City and/or other public agencies must consider various actions, permits, and approvals. The following City of Santa Ana approvals are anticipated to be required for the proposed project: • Amendment to Specific Development Plan 59 (SD-59) to modify the adopted SD-59 and establish permitted land uses, site development standards, and parking requirements for the proposed project. • Tentative Tract Map for condominium purposes. • Development Agreement. • Conditional Use Permit. In addition, the following approvals of agencies outside the City are anticipated for the proposed project: • Federal Aviation Administration (FAA) review of Proposed Construction or Alteration (FAA form 7460-1). 3.2 DRAFT ENVIRONMENTAL IMPACT REPORT 3.2.1 INITIAL STUDY AND NOTICE OF PREPARATION The C ity of Santa Ana distributed the Notice of Preparation (NOP) and an Initial Study (IS) for the proposed City Place Sky Lofts project on April 23, 2007, for the required 30-day review period. The NOP was distributed to the State Clearinghouse Office of Planning and Research, public agencies, service providers, and neighborhood associations in the vicinity of the project site. A copy of the NOP is provided in Appendix A of the Draft EIR. The distribution list for the NOP is provided in Appendix B of the Draft EIR. The City of Santa Ana received eight written comments to the NOP. Copies of these comment letters are provided in Appendix C of the Draft EIR. 3.2.2 SLOPING MEETING The City of Santa Ana conducted a public scoping meeting for the City Place Sky Lofts project on May 16, 2007. The meeting was held at 6:00 P.1vt., at the Santiago Park Lawn Bowling Clubhouse. The notice of the scoping meeting was included in the project NOP. Seven individuals attended the scoping meeting. One of the attendees submitted a comment card indicating the desire to be kept informed of future actions/activities concerning the City Place Sky Lofts project. This card is included in Appendix C of the Draft EIR. Based on the Findings of the IS and public input provided in response to the NOP, the Draft EIR evaluated the following environmental issues: aesthetics; air quality; cultural resources; geology and soils; hazards and hazardous materials; hydrology and water quality; land use and planning; noise; population and housing; public services; recreation; transportation and traffic; and utilities and service systems. F: IPROJ-ENf/ICity Place Sky LoftslFinal EIRIFindings-SOC'IFindings-SOC.doc Page 3 January 23, 2009 75A-113 Place Sky Lofts Final Environmental 3.2.3 DRAFT EIR 3.2.3.1 Circulation of the Draft EIR Findings The City of Santa Ana circulated the Draft EIR for the City Place Sky Lofts project for public review between November 7, 2007 and December 21, 2007. The RTC documents the public review and comment period for the Draft EIR. The Notice of Completion (NOC) and the Notice of Availability (NOA) for the Draft EIR are provided in Attachment A of the RTC Report. The NOA was advertised in the Orange County Register and the record of publication is provided in Attachment B of the RTC Report. The distribution list for the Draft EIR is provided in Appendix C in the RTC Report. Written comments on the Draft EIR for the City Place Sky Lofts project were received from the following: State A encies Native American Heritage Commission Southern California Association of Governments Department of Toxic Substances Control Department of Transportation -District 12 Public Utilities Commission State of California Governor's Office of Planning and Research Regional and Local A eg ncies Southern California Gas Company City of Irvine Airport Land Use Commission for Orange County City of Orange The Kennedy Commission County of Orange Businesses, Groups and Organizations The Colton Company Park Santiago Neighborhood Association General Public Mrs. Margaret Beyer 3.2.3.2 Planning Commission Public Hearing A public hearing was held on the Draft EIR for the City Place Sky Lofts project as part of the regularly scheduled November 26, 2007, City of Santa Ana Planning Commission meeting. This meeting was held at the City Hall Ross Annex (22 Civic Center Plaza, Santa Ana). The purpose of the meeting was to receive public comments on the Draft EIR. No public comments on the project were made during the Planning Commission meeting. F': IPROJ-ENUICity Place Sky LoftslFinal EIRIFindings-SOCiFindings-SOC.doc January 23, 2009 Page 4 75A-114 City Place Sky Lofts Final Environmental Impact Report Findings 3.2.3.3 Written Responses to Written Comments The City evaluated the comments on environmental issues received from persons who reviewed the Draft EIR. In accordance with CEQA, the City prepared written responses describing the disposition of significant environmental issues raised in these comments. As required by CEQA, the City has provided to each of the public agencies that commented on the Draft EIR responses to the comments received from that agency at least ten days prior to the certification of the Final EIR. The Final EIR provided adequate, good faith, and reasoned responses to the comments. Pursuant to Section 15088.5 of the CEQA Guidelines, a lead agency is required to recirculate an EIR when significant new information is added to the EIR after the Notice of Availability is given, but before certification. The term "information" specifically includes: (i) Changes to the project, (ii) Changes in the environmental setting or (iii) Additional new data or other information. Section 15088.5 of the CEQA Guidelines further provides that "...new information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponents have declined to implement." The City has reviewed the comments received on the Draft EIR and the responses to those comments as well as other text changes and references that have been incorporated into the Final EIR. Since the release of the Draft EIR for public review, there have been no changes to the project; no changes in the environmental setting; and no additional data or information were added to the E[R which would deprive the public of a meaningful opportunity to comment on the project. Therefore, having reviewed the information contained in the Draft and Final EIRs and in the administrative record, as well as the requirements under Section 15088.5 of the CEQA Guidelines regarding recirculation of Draft EIRs, the City hereby finds that there is no new significant information and no need to recirculate the EIR. Therefore, the Final EIR has been prepared and considered by the City. 3.3 FINAL ENVIlZONMENTAL IMPACT REPORT The City has prepared a Final EIR for the City Place Sky Lofts project. In accordance with the requirements of CEQA and the CEQA Guidelines, the Final EIR consists of: (a) The Draft EIR; (b) Comments and recommendations received on the Draft EIR, provided in the RTC Report; (c) A list of persons, organizations and public agencies commenting on the Draft EIR, provided in the RTC Report; (d) Clarifications and revisions to the Draft EIR (e) The City's responses to the comments received on the Draft EIR, provided in the RTC Report; (f) The Final MMRP and F: IPROJ-EN!/ICity Place SkyLoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 5 January 23, 2009 75A-115 Place Slry Lofts Final Envdronmentallmpact Report Findings (g) Other information added by the City, including all documents incorporated by reference. 4.0 PROJECT IMPACTS AND DISPOSITION OF RELATED MITGATION MEASURES IDENTIFIED IN THE FINAL EIR The analysis in the Final EIR identifies all the significant adverse environmental impacts of the City Place Sky Lofts project. Al] the mitigation measures identified in the Final EIR are included in the project approval and are made conditions of the City Place Sky Lofts project. The following Findings are made with respect to each significant adverse environmental impact of the City Place Sky Lofts project. In addition, the following Findings provide a description of the potential adverse impacts of the project and the mitigation measures in support of the Findings. Potentially significant adverse impacts of a project can be divided into two categories: • Potentially significant adverse impacts which can be mitigated to below a level of significance, based on implementation of identified project features, project mitigation measures, and/or City of Santa Ana standard conditions of approval. • Potentially significant adverse impacts which can be partially mitigated, but not to below a level of significance. As described later in these Findings, the City Place Sky Lofts project will result in some significant adverse impacts which cannot be mitigated to below a level of significance. For each potentially significant adverse impact of the City Place Sky Lofts project, one of the following Findings must be made, including the provision of facts supporting each finding: • Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. • Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the findings. Such changes have been adopted by such other agency or can and should be adopted by such other agency. Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1 POTENTIALLY SIGNIFICANT ADVERSE IMPACTS OF THE CITY PLACE SKY LOFTS PROJECT WHICH CANNOT BE MITIGATED TO BELOW A LEVEL OF SIGNIFICANCE Potentially significant adverse impacts of the City Place Sky Lofts project which cannot be mitigated to below a level of significance are described in this Section. The City of Santa Ana City Council finds that these potentially significant adverse impacts of the City Place Sky Lofts project would not be mitigated to below a level of significance, after implementation of the project mitigation measures. A Statement of Overriding Considerations (SOC) has been prepared to address these unavoidable significant adverse impacts of the City Place Sky Lofts project, as described later in Section 7.0 (Statement of Overriding Considerations). F: IPROJ-ENl~ICity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 6 January 23, 2009 75A-116 City Place Sky Lofts Final Environmental Lnpact Report Findings 4.1.1 AESTHETIC IMPACTS RELATED TO SHADE AND SHADOW 4.l .1.1 Potentially Significant Adverse Impacts Related to Shade and Shadow As described in Section 4.2 (Aesthetics) of the EIR, the City Place Sky Lofts project would result in significant adverse impacts related to shade and shadow which would substantially reduce the visual quality of the residential and park uses that are shaded by the proposed project. 4.1.1.2 Finding Related to Shade and Shadow Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.1.3 Facts in Support ofthe Finding Related to Shade and Shadow There are no feasible mitigation measures to reduce shade and shadow impacts. Therefore, the significant adverse impact on the visual quality of residential and park uses that are shaded by the project cannot be reduced to below a level of significance. 4.1.1.4 Level of Significance of Impacts Related to Shade and Shadow The adverse impacts of the City Place Sky Lofts project related to shade and shadow cannot be mitigated. to below a level of significance. 4.1.2 CUMULATIVE AESTHETIC IMPACTS RELATED TO SHADE AND SHADOW 4.1.2.1 Potentially Significant Cumulative Adverse Impacts Related to Shade and Shadow As described in Section 5.0 (Cumulative Impacts) of the EIR, in the spring, summer, fall, and winter late afternoon and early evening the 27-story tower would cast shadow on certain residential uses east of Lawson Way, northeast of South Parker Street, and southeast of Memory Lane. In the spring, summer, and fall shadow would also be cast on Santiago Park in the late afternoon and early evening. This impact cannot be mitigated and would remain a significant adverse impact of the proposed project. Therefore, the proposed project would result in significant adverse cumulative impacts on visual quality related to shade and shadow. 4.1.2.2 Finding Related to Cumulative Shade and Shadow Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.2.3 Facts in Support of the Finding Related to Cumulative Shade and Shadow There are no feasible mitigation measures to substantially reduce adverse cumulative impacts on visual quality. The significant adverse shade and shadow impacts on visual quality cannot be reduced to below a level of significance. Therefore, the City Place Sky Lofts project will contribute cumulatively to adverse aesthetic impacts. F: I PROD-ENUICity Place Sky Loftsl Frnal EIRIFindings-SOCIFindings-SOC. doc Page 7 January 23, 2009 75A-117 City Place Sky Lofts Final Environmental Impact Report Findings 4.1.2.4 Level of Significance of Impacts Related to Cumulative Shade and Shadow The contribution of the City Place Sky Lofts project to cumulatively adverse visual impacts related to shade and shadow cannot be mitigated to below a level of significance. 4.1.3 LONG-TERM AIR QUALITY IMPACTS RELATED TO REACTIVE ORGANIC GASES (ROG) 4.1.3.1 Potentially Significant Adverse Impacts Related to Operational ROG Emissions As described in Section 43 (Air Quality) of the EIR, project operations would result in emissions of ROG which would exceed the operational phase thresholds established by the South Coast Air Quality Management District (SCAQMD). These ROG emissions cannot be mitigated to below a level of significance and would constitute an unavoidable significant adverse impact. 4.1.3.2 Finding Related to Operational ROG Emissions Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.3.3 Facts in Support of the Finding Related to Operational ROG Emissions There are no feasible mitigation measures to substantially reduce ROG emissions during the operational phase. Therefore, the significant adverse impact during operation of the City Place Sky Lofts project related to ROG emissions cannot be reduced to below a level of significance. Compliance with the following project mitigation measures will lessen air quality impacts during operation. AQ-7 All appliances installed as part of the project shall be energy efficient appliances (i.e., washer/dryers, refrigerators, stoves, etc.). AQ-8 The project applicant will install ozone destruction catalysts on all air conditioning units. AQ-9 The proposed project will not include wood burning fireplaces. AQ-10 The project will exceed by 20% requirements of the Energy Efficiency Standards of Title 24 of the California Code of Regulations. Prior to approval of a building permit the project applicant will provide documentation to the City Engineer of compliance with this measure. 4.1.3.4 Level of Significance of Impacts Related to Operational ROG Emissions The long term adverse impacts of the City Place Sky Lofts project related to ROG emissions during operation cannot be mitigated to below a level of significance. !': IPROJ-END'ICity Place SkyLoftslFinal E/RlFindings-SOCIFindings-SOC.doc Page 8 January 23, 2009 75A-118 City Place Sky Gofts Final Environmentallmpact Report Findings 4.l .4 LONG-TERM CUMULATIVE IMPACTS RELATED TO ROG EMISSIONS 4.l .4.1 Potentially Significant Cumulative Adverse Impact Related to Operational ROG Emissions As discussed above and in Section 5.0 (Cumulative Impacts) of the EIR, the operation-related ROG emissions of the City Place Sky Lofts project would exceed the applicable SCAQMD thresholds for these criteria pollutants. The impacts from the proposed project plus related cumulative projects would additionally contribute to cumulatively significant adverse emissions in the South Coast Air Basin (Basin), which is already anon-attainment area. This impact is significant and adverse and cannot be mitigated to below a level of significance. 4.1.4.2 Finding Related to Cumulative Operational ROG Emissions Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.4.3 Facts in Support ofthe Finding Related to Cumulative Operational ROG Emissions There are no feasible mitigation measures to substantially reduce ROG emissions during operation of the proposed project. The significant adverse air quality impacts during operation of the City Place Sky Lofts project cannot be reduced to below a level of significance. Therefore, the City Place Sky Lofts project will contribute cumulatively to adverse air quality impacts in the Basin. 4.1.4.4 Level of Significance of Impacts Related to Cumulative Operational ROG Emissions The contribution of the City Place Sky Lofts project to cumulatively adverse impacts related to ROG emissions during operation cannot be mitigated to below a level of significance. 4.1.5 TRANSPORTATION AND TRAFFIC IMPACTS RELATED TO ROAD SEGMENTS 4.1.5.5 Potentially Significant Adverse Impacts Related to Road Segments in 2010 As described in Section 4.13 (Transportation and Traffic) of the EIR, implementation of the proposed project would result in temporary traffic impacts. For the 2010 traffic conditions, the Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance without amending the Master Plan of Arterial Highways (MPAH) road classification from a Major Arterial to a Principal Arterial. The road reclassification from a Major Arterial to a Principal Arterial would provide one additional lane in each direction. This road reclassification would require an amendment to the City of Orange General Plan and the City of Santa Ana General Plan. As discussed in Section 4.13.4.4 (2030 Traffic Impact Analysis), Main Street between La Veta Avenue and Town & Country Road would operate at an acceptable Level of Service (LOS) D in 2030 without and with the proposed project. Daily traffic volumes on Main Street in 2030 were generally forecasted to be lower than the daily traffic volumes in 2010 because the buildout of the MPAH would provide additional road capacity on the parallel north-south arterial highways such as Bristol Street to the west and Grand Avenue to the east. The additional north-south arterial highways road capacities would alleviate traffic demand on Main Street by shifting some of the traffic demand to Bristol Street and Grand Avenue. F: IPROJ-ENVICiry Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 9 January 23, 2009 75A-119 City Place Sky Lofts Final Environmental Impact Report Fandfngs Therefore, implementation of the proposed project would create a temporary significant and unavoidable adverse impact to Main Street between La Veta Avenue and Town & Country Road until Bristol Street and Grand Avenue are built out to the MPAH designations. 4.1.5.2 Finding Related to Road Segments in 2010 Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.5.3 Facts in Support of the Finding Related to Road Segments in 2010 The Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance without amending the MPAH road classification from a Major Arterial to a Principal Arterial This is considered infeasible for a temporary traffic impact. This segment will operate at acceptable LOS D in 2030. 4.1.5.4 Level of Significance of Impacts Related to Road Segments in 2010 The temporary adverse impacts of the City Place Sky Lofts project related to the Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance. 4.1.6 CUMULATIVE TRANSPORTATION AND TRAFFIC IMPACTS RELATED TO ROAD SEGMENTS IN 2010 4.1.6.1 Potentially Significant Cumulative Adverse Impacts Related to Road Segments in 2010 Implementation of the proposed project would result in temporary cumulative traffic impacts. For the 2010 traffic conditions, the Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance without amending the MPAH road classification from a Major Arterial to a Principal Arterial. The road reclassification from a Major Arterial to a Principal Arterial would provide one additional lane in each direction. This road reclassification would require an amendment to the City of Orange General Plan and the City of Santa Ana General Plan. This is considered infeasible for a temporary traffic impact. This segment will operate at acceptable LOS D in 2030. 4.1.6.2 Finding Related to Cumulative Conditions of Road Segments in 2010 Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. 4.1.6.3 Facts in Support of the Finding Related to Cumulative Conditions of Road Segments in 2010 The Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance without amending the MPAH road classification from a Major Arterial to a Principal Arterial. F:IPROJ-ENVICityPlaceSkyLoftslFinaIEIRIFrndangs-SOCiFindings-SOC.doc Page 10 January 23, 2009 75A-120 City Place Sky Lof7s Final Environmental Impact Report Findings 4.1.6.4 Level of Significance of Impacts Related to Cumulative Conditions of Road Segments in 2010 The temporary adverse cumulative impacts of the City Place Sky Lofts project related to the Main Street road segment between La Veta Avenue and Town & Country Road cannot be mitigated to below a level of significance. 4.2 POTENTIALLY SIGNIFICANT ADVERSE IMPACTS OF THE CITY PLACE SKY LOFTS PROJECT WHICH CAN BE MITIGATED TO BELOW A LEVEL OF SIGNIFICANCE Potentially significant adverse impacts of the City Place Sky Lofts project which can be mitigated to below a level of significance are described in this Section. The City of Santa Ana City Council finds that these potentially significant adverse impacts of the project would be mitigated to below a level of significance, after implementation of the identified project mitigation measures. 4.2.1 AESTHETIC IMPACTS RELATED TO LIGHT AND GLARE 4.2.1.1 Potentially Significant Adverse Impacts Related to Light and Glare As described in Section 4.2 (Aesthetics) of the EIR, light associated with the proposed residential tower and packing structure would add to the amount of existing light on and near the project site. Sources of light would include outdoor lighting and light from windows in the residential tower and town homes, and nighttime security lighting for the parking structure. This additional light would be potentially significant. Implementation of the proposed project could result in additional glare from sunlight reflecting off of glare-producing building materials. This impact would be potentially significant. 4.2.1.2 Finding Related to Light and Glare Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.1.3 Facts in Support of the Finding Related to Light and Glare Implementation of mitigation measures AS-2 and AS-3 would reduce the potential impacts to light and glare to less than significant levels. AS-2 The project proponent will ensure that all outdoor lighting and fixtures, including lighting for construction, are shielded or designed and located to minimize nighttime light spillage onto adjacent uses. Outdoor fixtures will be designed to generate less than 0.25-foot candle power of light where possible and will direct lighting toward the interior of the project site. AS-3 Non-reflective materials shall be utilized to the extent feasible. Building site plans shall be reviewed and approved by the City Planning and Public Works Department. F:IPROJ-ENVICityPlaceSkyLoftslFinalElRlFindings-SOCIFindings-SOC.doc Page ll Janzsary 23, 2009 75A-121 City Place Sky Lofts Final Environmental /mpact Report Findings 4.2.1.4 Level of Significance of Impacts Related to Light and Glare The adverse impacts of the City Place Sky Lofts project related to light and glare will be mitigated to below a level of significance with implementation of mitigation measures AS-2 and AS-3. 4.2.2 SHORT-TERM AIR QUALITY IMPACTS 4.2.2.1 Potentially Significant Adverse Impacts Related to Construction Emissions As described in Section 4.3 (Air Quality) of the EIR, during the construction phase of the project, air quality emissions would exceed the construction phase thresholds established by the SCAQMD and would result in a significant adverse short-term regional air quality impact. 4.2.2.2 Finding Related to Construction Emissions Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.2.3 Facts in Support of the Finding Related to Construction Emissions The proposed project would result in significant adverse air quality impacts during the construction phase. Implementation of mitigation measures AQ-1, AQ-2, AQ-3, AQ-4 and AQ-5 would reduce construction-related air quality impacts to less-than-significant levels. During construction, the contractor would be required to comply with SCAQMD Rule 403 -Fugitive Dust. Rule 403 requires that dust generated during demolition and construction activities be suppressed. Under Rule 403, the project construction activities would be subject to the following requirements: AQ-1 All trucks hauling dirt, sand, soil or other loose materials off-site shall be covered or wetted or shall maintain at least two feet of freeboard (i. e., minimum vertical distance between the top of the load and the top of the trailer). AQ-2 Streets shall be swept hourly if visible soil material has been carried onto adjacent public paved roads (reclaimed water shall be used if available.) AQ-3 All active sites shall be watered at least twice daily. AQ-4 All grading activities that result in dust generation shall cease during second stage smog alerts and periods of high winds (i.e., greater than 25 miles per hour [mph]) if dust is being transported to off-site locations and cannot be controlled by watering. AQ-5 The developer shall use zero Volatile Organic Compounds (VOC) content architectural coatings during the construction of the project to the maximum extent feasible. This measure would reduce volatile organic compounds (VOC) [ROG] emissions by 95 percent over conventional architectural coatings. The following websites provide lists of manufacturers of zero VOC content coatings: http://vv~vw.agmd. Gov/bus iness/brochures/zerovoc. htrn l http://www.delta-institute org(publications/paints pdf http://www. cleanaircounts.org/factsheets/FS%20PDF/Low%20 VOC%20Paint. pdf F: IPROJ-ENVICity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 12 January 23, 2009 75A-122 City Place Sky Lofts Final Environmental Impact Report Findings 4.2.2.4 Level of Significance of Impacts Related to Construction Emissions The adverse impacts of the City Place Sky Lofts project related to short-term air quality emissions will be mitigated to below a level of significance with implementation of the mitigation measures provided AQ-I through AQ-5. 4.2.3 CULTURAL RESOURCES IMPACTS 4.2.3.1 Potentially Significant Adverse Impacts Related to Cultural Resources As discussed in Section 4.4 (Cultural Resources) of the EIR, there is potential that construction of the City Place Sky Lofts project could have a significant adverse impact on any unknown cultural resources which might exist on the project site. 4.2.3.2 Finding Related to Cultural Resources Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.3.3 Facts in Support ofthe Finding Related to Cultural Resources Implementation of mitigation measures C-I and C-2, provided below, will substantially lessen the adverse impacts of the City Place Sky Lofts project related to cultural resources during construction, and will reduce this potentially significant adverse impact to below a level of significance. C-1 If buried cultural material is encountered during project construction, the construction contractor shall immediately stop work within the immediate vicinity of the finding and the City's Environmental Coordinator shall be contacted for appropriate action. C-2 If human remains are encountered during construction activities, work shal I cease and the Orange County Coroner's Office and the Native American Heritage Commission shall be notified. A course of action will be agreed upon regarding the treatment of said remains with the Orange County Coroner's Office or in compliance with the Native American Graves Protection and Repatriation Act (NAGPRA) and the Native American Heritage Commission if the remains are determined to be of Native American origin. This process can involve, but is not limited to, re-interment of said remains on- or off=site, donation to museums or schools for the promotion of archaeological body of record, or other arrangements as agreed upon by the consultation process with the Native American descendents or their representative. 4.2.3.4 Level of Significance of Impacts Related to Cultural Resources The adverse impacts of the City Place project related to cultural resources during construction will be mitigated to below a level of significance with implementation of mitigation measures C-1 and C-2. F.IPROJ-ENf~ICiryPlaceSkyLoftslFinaIEIRIFindings-SOCIFindings-SOC.doc Page I3 January 23, 3009 75A-123 City Place Sky Lofts Final Environmental Impact Report Findings 4.2.4 GEOLOGY AND SOILS IMPACTS RELATED TO GEOTECHNICAL CONDITIONS 4.2.4.1 Potentially Significant Adverse Impacts Related to Geotechnical Conditions As discussed in Section 4.5 (Geology and Soils) of the EIR, implementation of the City Place Sky Lofts project could result in significant adverse impacts related to geotechnical conditions. In addition, results of the settlement analyses indicated that the potential exists for significant differential settlement between the tower and town home portions of the proposed project. 4.2.4.2 Finding Related to Geotechnical Conditions Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.4.3 Facts in Support ofthe Finding Related to Geotechnical Conditions With implementation of mitigation measures G-1 and G-2, provided below, the potential for significant adverse impacts related to geotechnical conditions would be less than significant. G-1 Prior to issuance of a gading permit, a Final geotechnical report that addresses site- specific geotechnical considerations will be submitted to the City Engineer for approval. G-2 Recommendations for grading/earthwork, surface, and subsurface drainage, temporary and/or permanent dewatering, foundations, pavement structural sections, seismic design, and other pertinent, geotechnical design considerations will be formulated and will be included in the grading and building plans for the proposed project. 4.2.4.4 Level of Significance of Impacts Related to Geotechnical Conditions The adverse impacts of the City Place Sky Lofts project related to geotechnical conditions will be mitigated to below a level of significance with implementation of mitigation measures G-I and G-2. 4.2.5 GEOLOGY AND SOILS IMPACTS RELATED TO EROSION AND LOSS OF TOPSOIL 4.2.5.1 Potentially Significant Adverse Impacts Related to Erosion and Loss of Topsoil As discussed in Section 4.5 (Geology and Soils) of the EIR, implementation of the City Place Sky Lofts project could result in significant adverse impacts related to erosion and loss oftopsoil. 4.2.5.2 Finding Related to Erosion and Loss of Topsoil Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.5.3 Facts in Support ofthe Finding Related to Erosion and Loss of Topsoil With implementation of mitigation measure W-3, provided below, the potential for significant adverse impacts related to erosion and loss of topsoil would be less than significant. F: IPRUJ-ENV1City Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 14 January 23, 2009 75A-124 City Place SIn~ Lofts Final Environmental Impact Report Findings W-3 Prior to the commencement of soil disturbing activities, the project proponent shall submit for approval to the RWQCB, a Notice of Intent to be covered under the Storm Water Permit. Additionally, the project proponent shall prepare a SWPPP which will require the implementation of BMPs. The project proponent shall implement the SWPPP and will modify the SWPPP as directed by the Storm Water Permit. These provisions shall be included in the plan notes. The SWPPP shall include all of or a combination of specific BMPs as follows: a) Sediment for areas disturbed by construction shall be retained on-site using structural controls such as sandbags, fencing, or retention ponds. b) Stockpiles of soil shall be properly contained to eliminate or reduce sediment transport from the site to the streets, drainage facilities, or adjacent properties via runoff, vehicle tracking, or wind. c) Appropriate BMPs for construction-related materials, wastes, spills, or residues shall be implemented to minimize transport from the site to streets, drainage facilities, or adjoining properties. d) Runoff from equipment and vehicle washing shall be contained at construction sites unless treated to reduce or remove sediment and other pollutants. e) All construction contractor and subcontractor personnel are to be made aware of the required BMPs and good housekeeping measures for the project site and. any associated construction staging areas. fl At the end of each day of construction activity, all construction debris and waste materials shall be collected and properly disposed of in trash or recycle bins. g) Any designated smoking area shall have an appropriate cigarette waste receptacle that is fitted to not allow cigarette butts to enter storm water or drains during rain or high winds. All contractor and subcontractor personnel will be directed to dispose of cigarette butts in these receptacles. 4.2.5.4 Level of Significance of Impacts Related to Erosion and Loss of Topsoil The adverse impacts of the City Place Sky Lofts project related to erosion and loss of topsoil will be mitigated to below a level of significance with the implementation of mitigation measure W-3. 4.2.6 HAZARDS AND HAZARDOUS MATERIALS IMPACTS RELATED TO AIRPORT LAND USE PLANS 4.2.6.1 Potentially Significant Adverse Impacts Related to Airport Land Use Plans As discussed in Section 4.6 (Hazards and Hazardous Materials) of the EIR, the City Place Sky Lofts 27-story tower is 365 feet 8 inches above the ground at its highest point (a mechanical penthouse). Because the residential tower exceeds 200 feet in height, any such use (over 200 feet in height) would substantially fall within the John Wayne Airport Environs Land Use Plan (AELUP). Therefore, the proposed project would require filing with the FAA. Implementation of the proposed project could potentially result in significant impacts related to aviation hazards. 4.2.6.2 Finding Related to Airport Land Use Plans Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. F: IPROJ-ENf~ICiry Place Sky LoftslFinal EIRIFindings-SOCiFindings-SOC.doc Page !5 Januarv 23, 2009 75A-125 City Place Sky Lofts Final Environmental Impact Report Findings 4.2.6.3 Facts in Support of the Finding Related to Airport Land Use Plans Implementation of mitigation measure H-1 would ensure that any aviation-related safety hazards associated with the proposed project would be reduced to below a level of significance. H-l The Applicant shall file a notice of Proposed Construction or Alteration with the FAA (FAA Form 7460-1). Following the FAA's Aeronautical Study of the project, projects must comply with conditions of approval imposed or recommended by the FAA. A notification letter will be sent to the Airport Land Use Commission (ALUC) to indicate a structure proposed to be in excess of 200 feet in height. 4.2.6.4 Level of Significance of Impacts Related to Airport Land Use Plans The adverse impacts of the City Place Sky Lofts project related to Airport Land Use Plans will be mitigated to below a level of significance with the implementation of mitigation measure H-l . 4.2.7 HYDROLOGY AND WATER QUALITY IMPACTS 4.2.7.1 Potentially Significant Adverse Impacts Related to Water Quality As discussed in Section 4.7 (Hydrology and Water Quality) of the EIR, the construction and operation of the City Place Sky Lofts project may result in the potential for significant adverse impacts to water quality associated with contaminants on the site being carried from the site in runoff. 4.2.7.2 Finding Related to Water Quality Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.7.3 Facts in Support of the Finding Related to Water Quality Implementation of mitigation measures W-3 during construction and W-4 during operation, provided below, will substantially lessen the adverse impacts of the City Place Sky Lofts project related to water quality during construction and operation, and will reduce this potentially significant adverse impact to below a level of significance. For Construction (Storm Water Pollution Prevention Plan) (SWPPP) W-3 Prior to the commencement of soil disturbing activities, the project proponent shall submit for approval to the Regional Water Quality Control Board (RWQCB), a Notice of Intent to be covered under the Storm Water Permit. Additionally, the project proponent shall prepare a SWPPP which will require implementation of Best Management Practices (BMPs). The project proponent shall implement the SWPPP and will modify the SWPPP as directed by the Storm Water Permit. These provisions shall be included in the plan notes. The SWPPP shall include all of or a combination of specific BMPs as follows: a) Sediment for areas disturbed by construction shall be retained on-site using structural controls such as sandbags, fencing, or retention ponds. F~IPROJ-E~NVICityPlaceSkyLoftslFinaIEIRIFindings-SOC!Findings-SOC.doc Page 16 January 23, 2009 75A-126 City Place Shy Lofts Final Environmental /mpact Report Findengs b) Stockpiles of soil shall be properly contained to eliminate or reduce sediment transport from the site to the streets, drainage facilities, or adjacent properties via runoff, vehicle tracking, or wind. c) Appropriate BMPs for construction-related materials, wastes, spills, or residues shall be implemented to minimize transport from the site to streets, drainage facilities, or adjoining properties. d) Runoff from equipment and vehicle washing shall be contained at construction sites unless treated to reduce or remove sediment and other pollutants. e) All construction contractor and subcontractor personnel are to be made aware of the required BMPs and good housekeeping measures for the project site and any associated construction staging areas. f) At the end of each day of construction activity, all construction debris and waste materials shall be collected and properly disposed of in trash or recycle bins. g) Any designated smoking area shall have an appropriate cigarette waste receptacle that is fitted to not allow cigarette butts to enter storm water or drains during rain or high winds. All contractor and subcontractor personnel will be directed to dispose of cigarette butts in these receptacles. For Post-Construction (Water Quali Management Plan) (WQMP~ W-4 Prior to Finalizing design plans, a Water Quality Management Plan (WQMP) shall be prepared addressing post construction storm water runoff. This will consist primarily of structural BMPs addressing the urban runoff from the site. 4.2.7.4 Level of Significance of Impacts Related to Water Quality The adverse impacts of the City Place Sky Lofts project related to water quality during construction will be mitigated to below a level of significance with the implementation of mitigation measures W-3 and W-4. 4.2.8 NOISE IMPACTS 4.2.8.1 Potentially Significant Adverse Impacts Related to Noise As described in Section 4.9 (Noise) of the EIR, mechanical equipment noise will be associated with the ventilation system for the underground portion of the parking structure, with the mechanical system for the residential tower, and with the outdoor amenities. Depending on the type of equipment and where it is located relative to the nearby properties, the unmitigated noise levels produced by the mechanical equipment may exceed the City of Santa Ana's Municipal Code standards at the adjacent off-site properties. 4.2.8.2 Finding Related to Noise Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. F.~IP20J-ENI~ICityPlaceSkyLoftslFinalElRlFindings-SOCIFindings-SOC.doc Page 17 Jmvunry 23, 2009 75A-127 City Place S/ry Lofts Final Environmental Impact Report Findin s S 4.2.8.3 Facts in Support ofthe Finding Related to Noise hnplementation of mitigation measure N-1, provided below, will reduce potentially significant adverse impacts of the City Place Sky Lofts project related to noise to below a level of significance. N-1 The Final design of the mechanical systems will comply with the noise standards of the City of Santa Ana's Municipal Code. Compliance with these standards will be verified by an acoustical analysis conducted by a qualified acoustical consultant during the Final design phase of the project. if this analysis indicates that the mechanical systems, as designed, will fail to meet the noise standards, further noise control measures shall be incorporated into the design to provide compliance. This may include such measures as: selection of quieter mechanical equipment, relocation of mechanical equipment and its associated intakes and exhausts, use of parapet walls or other acoustical shielding, and use of silencers or acoustical louvers. 4.2.8.4 Level of Significance of Impacts Related to Noise The adverse impacts of the City Place Sky Lofts project related to noise will be mitigated to below a level of significance with the implementation of mitigation measure N-1. 4.2.9 RECREATION IMPACTS 4.2.9.1 Potentially Significant Adverse Impacts Related to Recreation Facilities As described in Section 4.12 (Recreation), the City Place Sky Lofts project would increase the demand for parks and recreational facilities in the City. 4.2.9.2 Finding Related to Recreation Facilities Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.9.3 Facts in Support ofthe Finding Related to Recreation Facilities Implementation of mitigation measure R-1 listed below would reduce potential recreation impacts to a level that is less than significant. R-l Prior to the issuance of the permits, the proposed project shall comply with the City's public dedication requirements either through provision of private open space, public land dedication, fees, or other vehicles acceptable to the City. 4.2.9.4 Level of Significance of Impacts Related to Recreation Facilities The adverse impacts of the City Place Sky Lofts project related to recreational facilities will be mitigated to below a level of significance with the implementation of mitigation measure R-1. F: IPROJ-EN'VlCity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page !8 January 23, 2009 75A-128 City Place Skv Lofts Final Environmental Impact Report Findings 4.2.10 TRANSPORTATION AND TRAFFIC IMPACTS RELATED TO 2030 SIGNLAIZED INTERSECTIONS 4.2.10.1 Potentially Significant Adverse Impacts Related to 2030 Signalized lntersections As discussed in Section 4.13 (Transportation and Traffic) of the EIR, in 2030, the intersections of Parker Street at La Veta Avenue and Parker Street at Town & Country Road would operate at unacceptable LOS F and LOS E, respectively, during the A.M. peak hour. Therefore, implementation of the proposed project would cause these signalized intersections to operate at an unacceptable LOS, and with an increase in the [ntersection Capacity Utilization (ICU) of greater than 0.01, representing a significant adverse impact. 4.2.10.2 Finding Related to 2030 Signalized Intersections Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.10.3 Facts in Support of the Finding Related to 2030 Signalized Intersections hnplementation of mitigation measures T-1 and T-2, provided below, will reduce the impacts on the 2030 signalized intersections of Parker Street at La Veta Avenue and Parker Street at Town & Country Road to below a level of significance. T-1 Prior to the issuance of permits, and subject to the approval of the City of Orange, the applicant shall deposit its set fee into the Transportation System Improvement Area Joint Powers Agreement (TSIA JPA) between the cities of Orange and Santa Ana and pay its fair-share of construction costs for the following improvements at the intersection of Parker Street and La Veta Avenue: add one northbound right-turn lane; stripe the unstriped eastbound right-turn lane; convert one eastbound through lane to one shared through right-turn lane; convert one westbound through lane to one left-turn lane; and modify traffic signal phasing to provide a protected left-turn phase for the eastbound and westbound approaches. The applicant's fair-share contribution is two percent of the construction costs. T-2 Prior to the issuance of permits, and subject to the approval of the City of Orange, the applicant shall deposit its set fee into the TSIA JPA and pay its fair-share of construction costs for the following improvements at the intersection of Parker Street and Town & Country Road: convert one eastbound through lane to one shared through/left-turn lane; and modify the signal phasing to provide an eastbound westbound split phase. The applicant's fair-share contribution is nine percent of the construction costs. 4.2.10.4 Level of Significance ofImpacts Related to 2030 Signalized Intersections The adverse impacts of the City Place Sky Lofts project related to the 2030 signalized intersections of Parker Street at La Veta Avenue and Parker Street at Town & Country Road will be mitigated to below a level of significance with the implementation of mitigation measures T-1 and T-2. F: I PROJ- ENVI City Place Sky L oftsl Final EIR IFnndings-SOCI Findings-SOC. doc Page 19 January 23, 2009 75A-129 City Place Sky Lofts Final Environmentallmpact Report Findings 4.2.11 TRANSPORTIATION AND TRAFFIC IMPACTS RELATED TO 2030 SIGNALIZED INTERRSECTIONS AT CALTRANS RAMPS 4.2.11.1 Potentially Significant Adverse Impacts Related to 2030 Signalized Intersections at Caltrans Ramps As discussed in Section 4.13 (Transportation and Traffic) of the EIR, for the 2030 signalized intersections at Caltrans ramps, the intersections of SR 22 eastbound ramps/Lawson Way at Town & Country Road and Main Street at I-5 HOV ramps/I-5 northbound off-ramp/Edgewood Road would operate at unacceptable LOS E both with and without the project during the P.M. peak hour. In addition, the SR 22 eastbound ramps/Lawson Way at Town & Country Road would operate at unacceptable LOS F both with and without the project during the A.M. peak hour. Therefore, implementation of the City Place Sky Lofts project would cause these Caltrans signalized intersections to operate at an unacceptable LOS, and with an increase in delay of greater than one percent, representing a significant adverse impact. 4.2.1 1.2 Finding Related to 2030 Signalized Intersections at Caltrans Ramps Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.11.3 Facts in Support of the Finding Related to 2030 Signalized Intersections at Caltrans Ramps Implementation of mitigation measures T-3 and T-4, provided below, will reduce the impacts on the 2030 signalized intersections of SR 22 eastbound ramps/Lawson Way at Town & Country Road and Main Street at I-5 HOV ramps/I-5 northbound off-ramp/Edgewood Road to below a level of significance. T-3 Prior to the issuance of permits, and subject to the approval of the City of Orange and Caltrans, the applicant shall deposit its set fee into the TSIA JPA and pay its fair-share of construction costs for the following improvements at the intersection of SR 22 eastbound ramps and Lawson Way at Town & Country Road: convert one northbound right-turn lane to one shared through/right-turn lane; convert one southbound shared through/right- turn lane to one shared through/left-/right-turn lane; convert one westbound through lane to one shared through/left-turn lane; and modify traffic signal phasing to provide an eastbound/westbound split phase. The recommended improvements shall be designed to meet Caltrans standards. The applicant's fair-share contribution is ten percent of the construction costs. T-4 Prior to the issuance of permits, and subject to the approval of the City of Santa Ana and Caltrans, the applicant shall deposit its set fee into the TSIA JPA and pay its fair-share of construction costs for the following improvements at the intersection of Main Street at I-5 HOV ramps, I-5 northbound off-ramp and Edgewood Road: convert one westbound shared through/left-turn lane to one left-turn lane; convert one westbound right-turn lane to one shared through/right-turn lane; and modify the traffic signal phasing to provide a protected eastbound right-turn phase that is overlapped with the northbound left-turn phase. The recommended improvements shall be designed to meet Caltrans standards. The applicant's fair-share contribution is 14 percent of the construction costs. F: I PROJ-ENG~'I City Place Sky Loftsl Final EIRI Findings-SOCI Findings-SOC. doc Page 20 January 23, 2009 75A-130 City Place Sky Lofts Final Environmentallmpact Report _ Findings 4.2.11.4 Level of Significance of Impacts Related to 2030 Signalized Intersections at Caltrans Ramps The adverse impacts of the City Place Sky Lofts project related to the 2030 signalized intersections of SR 22 eastbound ramps/Lawson Way at Town & Country Road and Main Street at I-5 HOV ramps/I-5 northbound off-ramp/Edgewood Road will be mitigated to below a level of significance with the implementation of mitigation measures T-3 and T-4. 4.2. l2 TRANSPORTATION AND TRAFFIC IMPACTS RELATED TO THE TWO-BAY TRUCK LOADING AREA 4.2.12.1 Potentially Significant Adverse Impacts Related to the Two-Bay Truck Loading Area As described in Section 4.13 (Transportation and Traffic) of the EIR, for the two-bay truck loading area located at the northwestern corner of the building, the truck-turning analysis concluded that an inbound delivery truck would strike the proposed east curb as the delivery truck backs into the east loading bay. Also, an outbound delivery truck leaving from the west loading bay would strike the proposed west curb as it makes a northbound left turn and would require several turning maneuvers and direction changes to avoid striking the building west of the proposed project. 4.2.12.2 Finding Related to the Two-Bay Truck Loading Area Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. 4.2.12.3 Facts in Support of the Finding Related to the Two-Bay Truck Loading Area [mplementation of mitigation measures T-5, provided below, will reduce impacts to the two-bay truck loading area to below a level of significance. T-5 Prior to the issuance of building permits, the applicant shall increase the two-bay truck loading area's west and east curb radii to 25 feet and use the west loading bay primarily for delivery vans. 4.2.12.4 Level of Significance of Impacts Related to Two-Bay Truck Loading Area The adverse impacts of the City Place Sky Lofts project related to the two-bay truck loading area will be mitigated to below a level of significance with implementation of mitigation measure T-5. 4.3 IMPACTS FOUND NOT TO BE SIGNIFICANT OR LESS THAN SIGNIFICANT The City finds that, based on substantial evidence in the record, discussed below, the following impacts associated with the City Place Sky Lofts project are less than significant and no mitigation is required. Additionally, the City finds, as set forth in Sections 4.1 (Potentially Significant Adverse Impacts of the City Place Sky Lofts project Which Cannot Be Mitigated to Below a Level of Significance) and 4.2 (Potentially Significant Adverse Impacts of the City Place Sky Lofts project Which Can Be Mitigated to Below a Level of Significance), above, no other potentially significant adverse project specific impacts of the proposed project are anticipated to occur. F: IPROJ-ENVICity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 21 January 23, 2009 75A-131 City Place Sky Lofts Final Environmental Impact Report Findin s S An Initial Study (IS) was completed at the beginning of the environmental review process for the City Place Sky Lofts project, to identify those impacts that could be potentially significant and adverse and which required further study in an EIR. The IS also provided analysis on the environmental impacts of the project that were determined to be less than significant due to the identification and incorporation of mitigation early in the process or based on compliance with existing regulations. The Findings of the IS are summarized in Section 3.0 (Effects Found Not to be Significant) in the EIR. The EIR and IS determined, based on substantial evidence in the record, that the following effects of the project would have no significant adverse or no adverse impact on the environment. 4.3.1 AESTHETICS Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to scenic vistas and scenic resources. As described in Section 4.2 (Aesthetics) in the EIR, the City Place Sky Lofts project will not substantially degrade the existing visual character of the site. Although impacts of the proposed project related to visual character are less than significant, mitigation measure AS-1 has been included to reduce potential visual impacts related to above-ground utilities. AS-1 All above-ground utilities shall, unless technically infeasible, be located within the 2.008-acre project site, and not on adjoining public right-of--way. The project applicant shall screen these utilities from the public right-of--way, and shall grant appropriate easements to the affected utility. This mitigation would apply to electricity, phone, cable TV, gas, and water utilities. 4.3.2 AGRICULTURE Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to agricultural resources. 4.3.3 AIR QUALITY Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) and Section 4.3 (Air Quality) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to odors. Based on the analysis in Section 4.3 (Air Quality) in the EIR, the project will comply with regional plans and will not exceed AQMD thresholds for nitrogen dioxide (NOZ), carbon monoxide (CO) sulfiir oxides (SOX), particulate matter (PM,o), and fine particulates (PM~.S) during construction or operation. A significant impact determination associated with global climate change of the proposed project was determined to be speculative because no adopted thresholds of significance currently exist for measuring the impact of global climate change on or from a project. However, mitigation measures AQ-7, AQ-8, AQ-9 and AQ-10, provided below, have been included to reduce project emissions that could contribute to global warming. F: IPROJ-ENl~ICity Place Sky LoftslFinal EIRIFindings-SOC'~Findings-SOC.doc Page 2Z January 23, 2009 75A-132 City Place Sky Lofts Final Environmental Impact Report Findings AQ-7 All appliances installed as part of the project shall be energy efficient appliances (i.e., washer/dryers, refrigerators, stoves, etc.). AQ-8 The project applicant will install ozone destruction catalysts on all air conditioning units. AQ-9 The proposed project will not include wood burning fireplaces. AQ-10 The project will exceed by 20% requirements of the Energy Efficiency Standards of Title 24 of the California Code of Regulations. Prior to approval of a building permit the project applicant will provide documentation to the City Building Official of compliance with this measure. 4.3.4 BIOLOGICAL RESOURCES Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to biological resources, threatened and endangered species, wetlands, local policies or ordinances protecting biological resources, or habitat conservation plans. 4.3.5 CULTURAL RESOURCES Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to historic resources. 4.3.6 GEOLOGY Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to rupture of a known earthquake fault, landslides, or the use of septic tanks or alternative wastewater disposal systems. As discussed in Section 4.5 (Geology and Soils) of the EIR, impacts of the City Place Sky Lofts project related to the seismic hazards of liquefaction, landslides, lateral spreading, and expansive soils would be less than significant. 4.3.7 HAZARDS AND HAZARDOUS MATERIALS Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to transport or disposal of hazardous materials, documented hazardous materials or hazardous substances sites, use or emission of hazardous materials within one-quarter mile of existing schools, use of hazardous materials during construction and operations, or exposure of people to wildland fires. As discussed in Section 4.6 (Hazards and Hazardous Materials) in the EIR, the jet fuel line that runs along the south side of Memory Lane, approximately one-half block south of the project site, would not result in a significant adverse impact related to hazards or hazardous materials. As discussed in Section 4.6 (Hazards and Hazardous Materials) in the EIR, the City of Santa Ana has no adopted emergency evacuation plans. Therefore, impacts related to emergency response plans would be less than significant. F: iPROJ-ENVICity Place SkyLoftslFinal EIRIFindings-SOCiFindings-SOC.doc Page 23 January 23, 2009 75A-133 City Place Sky Lofts Flnal Environmental Impact Report Findings 4.3.8 HYDROLOGY AND WATER QUALITY Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to groundwater recharge and natural water bodies, or exposure to flood risk. There would be no impact related to placement of housing or structures within the 100-year floodplain, or inundation by seiche, tsunami, or mudflow. The Hydrology Report provided in Appendix F of the Draft EIR identified that existing off-site drainage facilities would have adequate capacity to accommodate storm water runoff generated from implementation of the proposed project. Therefore, impacts related to on- or off-site flooding and capacity of existing storm water drainage systems related to implementation of the proposed project would be less than significant. However, mitigation measures W-1 and W-2 would ensure that planned drainage facilities would be approved by the City and installed prior to issuance of permits. W-1 Prior to issuance of grading permits, the applicant shall submit a Final drainage plan identifying the exact size and location of drainage facilities. W-2 The applicant shall construct facilities on the project site to transport storm water from the site to the City's/County's drainage facilities. All such facilities will be subject to the review and approval of the City Engineer and shall be installed prior to the issuance of permits. 4.3.9 LAND USE AND PLANNING Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to division of an established community or conflict with a habitat conservation plan or natural community conservation plan. As described in Section 4.8 (Land Use and Planning) of the EIR, impacts of the proposed project related to land use plans and policies would be less than significant. 4.3.10 MINERAL RESOURCES Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) in the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to mineral resources. No mitigation is required. 4.3.11 NOISE Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not expose people residing or working in the project area to excessive noise levels. According to the Orange County AELUP for John Wayne Airport, the project site is not impacted by aircraft noise that would exceed State or local noise standards. 4.3.12 POPULATION AND HOUSING Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result in significant adverse impacts related to the displacement of existing residential uses or people. F: IPROJ-F_NVICity Place Sky LoftslFina! EIRIFindings-SOCIFindings-SOC.doc page Zq January 23, 2009 75A-134 City Place Sky Lofts Final Environmental Impact Report Findings As discussed in Section 4.10 (Population and Housing) of the EIR, direct and indirect impacts related to population growth associated with implementation of the project would be less than significant. 43.13 PUBLIC SERVICES As discussed in Section 4.11 (Public Services) of the EIR, impacts related to public services associated with implementation of the proposed project would be less than significant. However, mitigation measure P-1 is included to ensure that coordination with the Santa Ana Police Department is maintained and security measures are incorporated into the project design and construction. Mitigation measure P-2 is included to ensure the timing of payment of school fees. P-1 Prior to the issuance of permits, the applicant shall coordinate with the City Police Department to prepare a Security Plan for the residential components of the project. This Plan shall be subject to the review and approval of the Police Department. The Plan shall address concerns related to visibility and adequate emergency access. Recommendations resulting from the project review by the City Police Department would be incorporated into the proj ect. P-2 Prior to the issuance of building permits the applicant shall demonstrate proof of payment of development fees to Orange Unified School District. 4.3.14 TRANSPORTATION AND TRAFFIC Based on the analysis summarized in Section 3.0 (Impacts Found Not to be Significant) of the EIR, the City Place Sky Lofts project will not result insignificant adverse impacts related to air traffic patterns or air traffic levels that would result in an increase in safety risks. Aviation requirements are described under Section 4.2.6 of this Findings and Facts Report. As described in Section 4.13 (Transportation and Traffic) of the EIR, implementation of the proposed project would not create a significant adverse parking impact if the proposed project were to provide five additional handicapped parking spaces in the tenant parking lot. However, the current SD-59 would be amended to incorporate an updated parking requirement that would reflect the proposed project parking ratios. 4.3.15 UTILITIES AND SERVICE SYSTEMS As described in Section 4.14 (Utilities and Service Systems) of the EIR, the City Place Sky Lofts project will result in increased demand for electricity, natural gas, communications systems, and domestic water, and will result in increased generation of waste water and solid waste, compared to existing conditions on the project site. This increased demand/generation will be within the capability of the individual utility providers. Although there are no significant adverse impacts to utilities and service systems, the following mitigation measures are included to ensure that coordination with public utility providers are maintained. U-1 The applicant shall coordinate with the utility companies serving the site to establish service connections prior to construction. F: IPROJ-ENVICity Place Sky LoftslFinal BIRIFindings-SOCIFindings-SOC.doc Page 25 January 23, 2009 75A-135 City Place Sky Lofts Final Environmental Impact Report Findings U-2 Any pre-existing underground utilities at the site shall be located prior to construction. and abandoned or removed in accordance with state and local codes and regulations. Any utility trenches shall be backfilled under the observation and testing of the resident engineer or inspector. U-3 The applicant shall pay its fair share of necessary telephone improvements including a main conduit structure to bring lines into the project site. Coordination with AT&T and/or Time Warner during the development stage would facilitate service connection. 5.0 MITIGATION MONITORING AND REPORTING PROGRAM When making Findings, CEQA requires that a lead agency must adopt a reporting or monitoring program for the changes to the project that it has adopted or made a condition of project approval in order to ensure compliance during project implementation. The MMRP for the City Place Sky Lofts project, accompanying the Final EIR, is designed to serve this purpose for the mitigation measures identified in the Final EIR. The MMRP requires the City to monitor mitigation measures designed to reduce or eliminate significant adverse project impacts, as well as those mitigation measures designed to reduce environmental impacts that are less than significant. The MMRP includes all mitigation measures identified in the Final EIR and has been designed to ensure compliance during implementation of the project. The City finds that the impacts of the project have been mitigated to the extent feasible by the mitigation measures identified in the Final E1R and the MMRP. The City adopts the MMRP for the City Place Sky Lofts project. The MMRP designates responsibility and the anticipated timing for the implementation of mitigation measures and conditions within the jurisdiction of the City of Santa Ana. That MMRP is hereby adopted and its implementation is made a condition of approval of the City Place Sky Lofts project. The City approves and will implement all the mitigation measures in the Final EIR 6.0 ALTERNATIVES An EIR prepared pursuant to CEQA and the CEQA Guidelines must describe and comparatively evaluate a range of alternatives to the proposed project (Section 15126.6 of the CEQA Guidelines). Analysis of every possible alternative or options or combination of options would overburden the EIR with an unnecessary amount of detail that would be redundant and complex and would, as a result, fail to provide meaningful information for the City to consider in its review of the project. To develop alternatives that are analyzed in the EIR, a list of potential alternatives was prepared. For this analysis, the project alternatives were evaluated to determine the extent to which they meet the basic project objectives, while avoiding or substantially lessening any significant adverse impacts of the proposed project. The City of Santa Ana selected the alternatives discussed below for a variety of reasons. The goal for evaluating alternatives was to identify ways to mitigate or avoid the significant adverse impacts of the proposed project. h` I PROD-ENVI City Place Sky Loftsl Final EIRIFindings-SOCI Findings-SOC. doc Page 26 January 23, 2009 75A-136 City Place Sky Lofts Final Environmental Impact Report Findin s S 6.1 ALTERNATIVES CONSIDERED BUT REJECTED 6.1.1 ALTERNATIVE SITE FOR THE PROPOSED PROJECT The EIR does not analyze an alternative site for the City Place Sky Lofts project because the applicant does not own or control another suitable property in the City of Santa Ana. The City Place Sky Lofts project would generate approximately the same traffic and air quality emissions at any other location in the City, to the same or greater extent than at the proposed site. Therefore, locating the City Place Sky Lofts project at another site in the City would essentially shift the project's adverse impacts to that other location, but would not be expected to avoid or substantially reduce those impacts. However, it should be noted that the traffic impacts which occur in the City of Orange under the City Place Sky Lofts project could possibly be located to an area entirely within the City of Santa Ana if an alternative project site were considered, but the level of impact would remain comparable. As a result, an alternative site for the proposed project was not evaluated in the Draft EIR. 6.2 NO PROJECT ALTERNATIVES 6.2.1 NO PROJECT/EXISTING CONDITIONS ALTERNATIVE This No Project Alternative assumes that the existing 2.008-acre project site remains as is and that no development occurs on the site. With this Alternative, the site would remain vacant and no residential or commercial uses would be developed. Table 9-I from the Draft EIR, on the following page, indicates that the No Project/Existing Conditions Alternative would not meet any of the objectives for the City Place Sky Lofts project. 6.2.2 NO PROJECT/EXISTING ENTITLEMENT ALTERNATIVE This No Project Alternative assumes that the 2.008-acre project site would be developed consistent with the existing approved entitlements for the project site per SD-59. The existing entitlements would allow for one dwelling unit per acre. This No Project Alternative would result in two additional housing units and would result in a substantially lower land use density on the project site than the proposed project that consists of 353 residential dwelling units. However, this No Project Alternative would not meet the objectives for the City Place Sky Lofts project. 6.3 TOWN HOME ALTERNATIVE The Town Home Alternative consists of 57 town homes on the project site. This alternative is the same design as proposed for the site in the original City Place project in 2004. However, only two dwelling units were entitled for the site. This Alternative would reduce the development on the project site by 296 residential dwelling units compared to the City Place Sky Lofts project. This Town Home Alternative would meet all but one of the project objectives. This Alternative would provide 296 fewer dwelling units than the proposed project, and therefore would not meet the project objective to maximize residential density on the site. 6.4 COMPARISON OF IMPACTS Table 9-I in the EIR, provided below, compares the unavoidable adverse impacts of the City Place Sky Lofts project and the No Project/Existing Conditions, No ProjectBxisting Entitlement and Town Home A Iternatives. F. IPROJ-ENVICity Place Sky LoftslFinal ELRIFindings-SOCIFindings-SOC.doc page 27 January z3, 2009 75A-137 City Place Sky Lofts Final Environmental Impact Report Findings TABLE 9-1 COMPARISON OF THE IMPACTS OF THE CITY PLACE SKY LOFTS PROJECT AND THE PROJECT ALTERNATIVES IMPACT PROPOSED CITY NO PROJECT/ NO PROJECT/ TOWN HOME CATEGORY PLACE SKY LOFTS EXISTING EXISTING ALTERNATIVE PROJECT CONDITIONS ENTITLEMENT Aesthetics Significant adverse No impact. Impacts to aesthetics Impacts to impact due to building would be below a aesthetics would be shadow upon residential level of significance below a level of uses east of Lawson and would be significance and Way and southeast of substantially less than would be less than Memory Lane during the proposed project. the proposed late afternoon and early project. evening of spring and summer months. Air Quality Unavoidable adverse No impact. Impacts to air quality Impacts to air impact of ROG would be below a quality would be emissions during the level of significance below a level of proposed project and would be significance and operational phase. substantially less than would be less than the proposed project. the proposed project. Cultural Impacts to cultural No impact. Impacts to cultural Similar as under the Resources resources would be resources would be proposed project; below a level of below a level of however, the significance with significance with potential for implementation of mitigation. However, encountering mitigation measures. impacts would be less subsurface materials than the proposed would be less than project. the proposed roject. Geology and Impacts to geology and No impact. Impacts to geology Similar impacts as Soils soils would be below a and soils would be under the proposed level of significance below a level of project; however, with implementation of significance with impacts would be mitigation measures. mitigation. However, less than the the potential for proposed project. differential settlement would be less than the proposed project. Hazardous The potential impacts of No impact. The potential impacts Similar impacts as Materials the proposed project related to the under the proposed related to the abandoned jet fuel project. abandoned jet fuel line line would be below a would be below a level level of significance of significance. and would be the same as the proposed project. F: I PROJ-ENVI City Place Sky Loftsl Final EIRI Findings-SOCI Findings-SOC. doc Page 28 January 23, 2009 75A-138 City Place Slcy Lofts Final Environrnental Impact Report Findings TABLE 9-1 COMPARISON OF THE IMPACTS OF THE CITY PLACE SKY LOFTS PROJECT AND THE PROJECT ALTERNATIVES IMPACT PROPOSED CITY NO PROJECT/ NO PROJECT/ TOWN HOME CATEGORY PLACE SKY LOFTS EXISTING EXISTING ALTERNATIVE PROJECT CONDITIONS ENTITLEMENT Hydrology and Impacts to hydrology No impact. Impacts to hydrology Similar impacts as Water Quality and water quality would and water quality under the proposed be below a level of would be below a project; however, significance with level of significance impacts would be implementation of with implementation less than the mitigation measures. of mitigation and proposed project. would be the same as the proposed project. Land Use Impacts related to land No impact. Impacts related to Impacts related to use would be below a land use would be land use would be level of significance. below a level of below a level of significance and significance and would be similar to would be similar to the proposed project. the proposed project. Noise Impacts related to noise No impact. Impacts related to Similar impacts as would be below a level noise would be below under the proposed of significance with a level of significance project; however, implementation of with implementation impacts would be mitigation measures. of mitigation less than the measures and would proposed project. be substantially less than the proposed roject. Population and Impacts related to No impact. Impacts related to ~ Similar impacts as Housing population and housing population and under the proposed would be below a level housing would be project; however, of significance. below a level of impacts would be significance and less than the would be proposed project. substantially less than the proposed project. Public Services Impacts to public No impact. Impacts related to Similar impacts as services would be public services would under the proposed below a level of be below a level of project; however, significance. significance and impacts would be would be less than the substantially less than proposed project. the proposed project. Recreation Impacts to recreation No impact. Impacts related to Similar impacts as would be below a level public services would under the proposed of significance with be below a level of project; however, implementation of significance with impacts would be mitigation measures. mitigation and would less than the be substantially less proposed project. than the proposed project. F.~ IPROJ-ENY'ICity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 29 January 23, 2009 75A-139 City Place Slcy Lofts Final Environmental Impact Report Findings TABLE 9-l COMPARISON OF THE IMPACTS OF THE CITY PLACE SKY LOFTS PROJECT AND THE PROJECT ALTERNATIVES IMPACT CATEGORY PROPOSED CITY PLACE SKY LOFTS PROJECT NO PROJECT/ EXISTING CONDITIONS NO PROJECT/ EXISTING ENTITLEMENT TOWN HOME ALTERNATIVE Transportation A temporary significant No impact. Potential short-term Impacts to and Traffic and unavoidable impacts to transportation and adverse impact to Main transportation and traffic would be Street between La Veta traffic would be below a level of Avenue and Town & below a level of significance and Country Road until significance and would be less than Bristol Street and Grand would be the proposed Avenue is built out to substantially less than project. the MPAH the proposed project. designations. Other impacts to transportation and traffic would be below a level of significance with implementation of miti ation measures. Utilities and Impacts to utilities and No Impact. Impacts related to Similar impacts as Service service systems would utilities and service under the proposed Systems be below a level of systems would be project; however, significance with below a level of impacts would be implementation of significance and less than the mitigation measures. would be proposed project. substantially less than the proposed roject. The proposed project meets all the defined project objectives. The Town Home Alternative meets all but one of the project objectives. Both the No Project Alternatives fail to meet any of the defined project objectives. However, the No Project/Existing Conditions Alternative does avoid all the significant adverse impacts of the proposed project and other project alternatives because site conditions would remain as they currently exist. Although the No ProjectJExisting Entitlements Alternative fails to meet any of the defined project objectives, the impacts of this Alternative would be substantially less than the impacts under the proposed project. This is because this Alternative would result in a substantial reduction of development on the project site. Therefore, this Alternative would eliminate the significant unavoidable adverse impacts associated with the proposed project and would result in substantially less impacts than under the proposed project. 6.5 ENVIRONMENTALLY SUPERIOR ALTERNATIVE Section 15126.6(e)(2) of the CEQA Guidelines requires that an EIR identify the environmentally superior alternative. If the No Project Alternative is the environmentally superior alternative, the EIR must identify an environmentally superior alternative among the remaining alternatives. As shown in Table 9-1, the proposed project is anticipated to result in significant unavoidable adverse impacts related to: F IPROJ-ENVI City Place Sky Loftsl Final EIRI Findings-SOCI Findings-SOC. doc Page 30 January 23, 2009 75A-140 Place Sky Lofts Final Environmental Impact Report • Aesthetics • Air Quality • Traffic The No Project/Existing Conditions Alternative is not anticipated to result in any significant unavoidable adverse impacts because it does not propose any development on the project site. The No Project/Existing Entitlement Alternative is not anticipated to result in any significant unavoidable adverse impacts, and impacts would be substantially less than under the proposed project because of the substantially reduced amount of development on the project site under this Alternative. The Town Home Alternative would result in less-than-significant impacts except for potential short-term traffic impacts. All impacts of the Town Home Alternative would be less than under the proposed project because this Alternative would result in less intense development on the project site. As shown in Table 9-1, because the No ProjectlExisting Conditions Alternative and No Project/Existing Entitlement Alternative do not result in any significant unavoidable adverse impacts and would result in even less impacts than the Town Home Alternative, they are the environmentally superior alternatives. CEQA requires the identification of an additional feasible environmentally superior alternative when the No Project Alternative is determined to be the environmentally superior alternative. Many of the environmental impacts of the proposed project and the project Alternatives are directly related to the size or intensity of the development and, in general, projects of higher intensity will generally result in more adverse impacts compared to alternatives of a lower intensity. As shown in Table 9-1, the Town Home Alternative would result in fewer significant unavoidable adverse impacts than the proposed project. Therefore, of the build alternatives, the Town Home Alternative is the environmentally superior alternative. 7.0 STATEMENT OF OVERRIDING CONSIDERATIONS The City of Santa Ana has balanced the benefits of the City Place Sky Lofts project against its unavoidable adverse environmental impacts in determining that the specific economic, legal, social, technological, and/or other benefits outweigh the unavoidable significant adverse environmental impacts of the project. Section 15093(b) of the CEQA Guidelines provides that when the decision of a public agency results in the occurrence of significant adverse impacts that are identified in the Final EIR but are not substantially mitigated, the agency must state in writing the reasons to support its actions based on the Final EIR and/or other information in the record. The reasons set forth below are based on the Final EIR and other information in the record. Based on the substantial evidence in the record, including but not limited to the Final EIR, the City ftnds that the benefits of the City Place Sky Lofts project outweigh its unavoidable adverse environmental impacts and, furthermore, finds that such adverse environmental effects are acceptable. Each of the separate benefits of the project, as stated below, is determined to be, unto itself and independent of other project benefits, a basis for oven-iding all unavoidable adverse impacts identified in these Findings. The reasons for the approval of the project despite the occurrence of significant unavoidable adverse impacts related to aesthetics, air quality, and traffic are: 1. The project would allow the City to achieve the objectives and to avoid or minimize significant adverse environmental impacts to the extent feasible. The project will: r: ~/'KUJ-BNVICity Place Sky LoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 31 January 23, 2009 75A-141 City Place Sky Lofts Final Environmental Impact Report Findings • Develop the City Place as a cormnercial and residential center that provides entertainment, shopping, dining, and living opportunities for the residents of Santa Ana and surrounding area, and that maximizes the advantages of the site location on Main Street in terms of its visibility and proximity to SR 22. • Develop the vacant project site with land uses to help meet the residential needs in the northeastern part of the City of Santa Ana. • Provide development that is consistent with the District Center designation of the General Plan and which contributes to the continued revitalization of the northeastern area of the City of Santa Ana. • Provide concentrated and internally integrated development rather than development that spreads activities into adjacent residential neighborhoods. Introduce a mixture of multi-family housing types to the district. • Maximize the residential density of the vacant site in City Place to support the purpose of the General Plan designation of District Center, which is intended for high intensity development. 2. The project would be consistent with existing development in the area which reflects an urban environment preserving the aesthetic qualities of the City and helping to make the area a source of pride to people living and working in Santa Ana and for visitors to the City. 3. Furthermore, there are no alternative sites in the City that are suitable for this project, as described in the Final EIR. Therefore, there are no feasible alternative sites or mitigation measures that would reduce or eliminate the significant unavoidable adverse impacts of the proposed project related to aesthetics, air quality, and traffic. For the reasons stated above, and based on substantial evidence in the record before it, the City finds that the unavoidable adverse impacts of the City Place Sky Lofts project related to aesthetics, air quality, and traffic are acceptable and, furthermore, finds that the benefits of the project outweigh its unavoidable adverse environmental impacts. 8.0 RECORD OF PROCEEDINGS Various documents and other materials constitute the record of proceedings on which the City of Santa Ana bases its Findings and decisions contained herein. Most documents related to this Final E1R are located at the City of Santa Ana, Planning and Building Department, 20 Civic Center Plaza, Santa Ana, California, 92702. Some docwnents included in the record of proceedings may also be located at the offices of consultants retained by the City for this project. 9.0 SUMMARY 1. Based on the foregoing Findings and the information contained in the record, the City of Santa Ana has made one or more of the following Findings with respect to each significant adverse impact of the proposed project, as identified in the Final EIR: F: IPROJ-ENVICity Place SkyGoftslFinal EIRIFindings-SOCIFindings-SOC.doc Page 32 Januarv 23, 2009 75A-142 City Place Sky Lofts Final Environmentallmpact Report Findings Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the Final EIR. Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR. • Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. 2. Based on the Findings stated herein and information contained in the record, it is hereby determined that: a. All significant adverse impacts on the environment due to the approval of the project have been eliminated or substantially lessened where feasible. b. Any remaining significant adverse impacts on the environment found unavoidable are acceptable due to the factors described in the Statement of Overriding Considerations in Section 7.0, above. 10.0 APPROVALS The City hereby takes the following actions: 1. The City has certified the Final EIR for the project, as described in Section 1.0, above. 2. The City hereby adopts, incorporates into the project, and makes a condition of the project approval, all mitigation measures in the Final EIR, and as discussed in Section 2.0 (Findings) above and Section 4.0 (Project hnpacts and Disposition of Related Mitigation Measures in the Final EIR) above. 3. The City hereby adopts the Mitigation Monitoring and Reporting Program, accompanying the Final EIR and discussed in the Section 5.0 (Mitigation Monitoring and Reporting Program) above. 4. The City hereby adopts the Findings in their entirety, as set forth above, including the Statement of Overriding Considerations. 5. Having certified the Final EIR, independently reviewed and analyzed the Fina] EIR, incorporated mitigations into the project as conditions of project approval, and adopted the Findings (including the Statement of Overriding Considerations set forth herein), the City hereby approves the City Place Sky Lofts project, as described in the Final EIR, including the site approval and design. F: IPROJ-EN~ICity Place Sky LoftslFinal EIR1Findings-SOCIFindings-SOC.doc Page 33 January 23, 2009 75A-143 ORDINANCE NO. NS- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SPECIFIC DEVELOPMENT DISTRICT (SD-59) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. Applicant is requesting approval of various entitlements in order to construct Sky Lofts, the final portion of the City Place Development located at 301 East Jeanette Lane. The Sky Lofts proposed project consists of a high rise tower, stacked townhomes and a parking structure on an approximately two acre site. The residential segment will provide 333 condominium units within the tower and 20 stacked townhouses wrapping one-side of the 729-space parking garage. B. After continuing the matter following a noticed public hearing, at its regular meeting of January 12, 2009, the Planning Commission voted by a vote of vote of 5:1:1 (Yrarrazaval opposed, Turner abstained) to recommend that the City Council: 1. Adopt a resolution certifying Final Environmental Impact Report (EIR) No. 2007-02. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2008-04. 3. Adopt a resolution approving an amendment to Development Agreement No. 2004-04. 4. Adopt a resolution approving Conditional Use Permit No. 2008-34 as conditioned. 5. Adopt a resolution approving Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) as conditioned. 6. Adopt a resolution approving Site Plan Review No. 2008-05. C. The City Council of the City of Santa Ana held a duly noticed public hearing on the abovesaid actions for Sky Lofts proposed project at City Place Development on February 2, 2008, and at that time considered all testimony, written and oral. D. Amendment Application No. 2008-04 has been filed with the City of Santa Ana to amend Specific Development Plan No. 59 (SD-59). 75A-144 Section 2. Specific Development Plan No. 59 (SD-59) is hereby amended as set forth in Exhibit "A", attached hereto and incorporated as though fully set forth herein. (ZOA 2008-04). Additions from the current SD-59 are shown on Exhibit A as underlined and deletions as strikeout. Section 3. This ordinance shall not be effective unless and until Resolution No. 2008-XXX and Resolution No. 2008-XXX become effective. If said resolutions 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 any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2009. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers 75A-145 ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-XXXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A-146 APPLICABILITY OF ORDINANCE The specific development zoning district, as authorized by Chapter 41, Division 26, of the Santa Ana Municipal Code, is specifically subject to the regulations contained in this ordinance for the express purpose of establishing use district regulations. All other applicable chapters, articles and sections of the Santa Ana Municipal Code shall apply unless expressly waived or superseded by this ordinance. Use district regulations established in Chapter 41, Article III, of the Santa Ana Municipal Code for zoning districts other than the SD zoning district may be incorporated herein by reference. PURPOSE The Specific Development No. 59 (SD-59) use district regulations are hereby established for the express purpose of protecting the health, safety and general welfare of the City by encouraging the use of innovative planning concepts and principles and promoting and enhancing the value of properties and encourage orderly development. The SD-59 regulations will establish a professional district that will entitle 57,700 square feet of commercial space at the northeast corner of Main Street and Memory Lane with x-8-7 540 for sale residential units further to Lawson Way. This area will be a mixed use district with eating establishments, support services and a residential component consisting of live-works townhouse units and high rise tower. EXHIBIT A 1 75A-147 PART I. GOALS, OBJECTIVES AND POLICIES City Place Specific Development District is located within the northern area of the City. The City Place Specific Development District encompasses a large vacant property bounded by Main Street to the west, Memory Lane to the south, Lawson Way to the east and the City boundaries to the north. A regional mall, professional offices, a senior care facility and Santiago Park surround the project site. The City Place Specific Development District maintains a commercial corridor along Main Street while introducing a residential character along the eastern portion of the district, with a mixture of live-work1 a~ townhome ~ and high rise tower. The City Place mixed-use project is intended to be an addition to the commercial corridor and an infusion of housing to the district along the north Main Street section of the City. In addition, the mixed use plan for this site will result in the project becoming a node, or place of activity. The objectives of the City Place Specific Development Plan includes the provision of the following: A long-term development that is of the highest architectural quality and design; 2. A landscaping plan that is complementary to a large scale mixed use development; 3. An exciting and visually cohesive development as viewed both internally and externally; 4. A bold but integrated sign program suitable for a mixed use project of this scale and scope; 5. A development that is consistent with the District Center designation of the General Plan and which implements the spirit and intent and policies of the General Plan; 6. Concentrated and internally integrated development rather than development that spreads activities into adjacent residential neighborhoods; 7. A development that provides special design themes which are expressed in building appearance and configuration, street and pedestrian area design, landscaping, lighting and signage, and also provides for pedestrian linkages internally and to the surrounding neighborhood, traffic and service buffering and transitions in architectural scale and character; 2 75A-148 Provision ofoff-street parking sufficient to service the development, consistent with the mix of uses contained in the project; 9. Provision or replacement of public streets, sidewalks, sewers, storm drains, traffic signals, lighting systems, and other public facilities and improvements, as necessary; 10. Opportunities for cultural amenities and facilities serving the visual and performing arts which are open for public patronage.-; 11. A landmark mixed-use project along north Main Street across from Main Place Mall..-i 12. Maintain the existing streetscape pattern including sidewalk design, mature trees and light fixtures-; 13. Introduce a mixture of multi-family housing types to the district..-2 14. Provide amixed-use project in scale and character with established commercial and residential structures along the north end of the district:; and 15. Enhance the pedestrian experience through the development of new plaza areas and water features throughout the project as well as the intersection of Main Street and Memory Lane. 3 75A-149 PART II. PERMITTED LAND USES The categories of land uses to be included within the project area are: banks and similar financial institutions, retail and restaurants. In addition multi-family residential uses (excluding live-work units) are permitted. If a use is for any reason omitted from those specified as permissible or if ambiguity arises concerning the approximate classification of a particular use within the meaning and intent of this Plan, the determination shall be at the discretion of the Planning Manager. Such decision may be appealed to the Planning Commission whose decision is final. Permitted Uses. a. Within Buildings A, B, C and D (as identified on site plan), the following uses are permitted: b. Retail sales uses including but not limited to clothing stores or boutiques; florists; news-stands; pet stores; photography studios; video stores; office and computer equipment book and stationery store; camera shop; shoe store sporting goods store; art gallery; craft store; cultural displays and related merchandising; bicycle store; pharmacies and drug stores; fabric shops; jewelry shops; furriers, design and furniture centers; cookware and gourmet specialty shop; office furniture store. c. Full service cafes and restaurants which may include incidental take out service. Full service cafes and restaurants shall be limited to those that provide sit-down dining areas and exclusive table service for ordering and delivering meals and beverages. d. Day care facilities Museums and libraries f. Theaters g. Within Building E, as identified on site plan: Retail use with a minimum of 25,000 square feet. h. Within the Courtyards and The Park, as identified on site plan: i. Multiple family residences as condominiums. 4 75A-150 ii. Uses incidental or ancillary to any residential use, such as swimming pool, sauna, jacuzzi, benches, playgrounds, BBQ and other outdoor recreational facilities. i. Within The Lofts, as identified on site plan: Permitted uses as identified in Section A. 1-5, 8, 9 and 11. ii. Uses incidental or ancillary to any residential use, such as swimming pool, sauna, jacuzzi, benches, playgrounds, BBQ and other outdoor recreational facilities. Within Lot 1, as identified on Vesting Tract Map No. 2004-06 (County No. 16565): Single family residences at a maximum density of one unit per acre. k. Ancillary uses to commercial area: i. A maximum of five permanent outdoor sales kiosks or carts. The size and location of each Kiosk or cart shall be approved on a masterplan of such uses by the Planning Commission prior to their construction or installation. 2. Conditionally Permitted Uses The following uses are permitted upon the approval of a conditional use permit in accordance with the Santa Ana Municipal code: a. Within Buildings A, B, C and D (as identified on site plan): i. Uses open between midnight to 5:00 a.m. ii. Banquet facilities, subject to development and operational standards set forth in 41-199.1. iii. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use, except adult entertainment businesses. iv. Establishments selling or serving alcoholic beverages. v. Coffee houses houses or similar uses not specifically listed in Part II, Section l .d. of this ordinance. 5 75A-151 vi. Parking structures b. Within The Lofts, as identified on site plan: i. Live-work communities ii. Ceramic and pottery studios iii. Glass blowing and sculpturing studios iv. Coffee houses v. Temporary residential model complex and office c. Within The Courtyards and The Park, as identified on site plan: i. Temporary residential model complex and office d. Within Lot 1, as identified on Vesting Tract Man No. 2008-04 (County No. 17242 i. High rise residential condominiums to a maximum of 333 dwelling units. ii. Stacked townhomes condominiums to a maximum of 20 dwelling units. de. Within Building E, as identified on site plan: i. Retail grocery markets which are open at any time between the hours of midnight and 5:00 a.m. e_f. Within the commercial component area: i. Certified Farmers Market for the sale of vegetables, fruits and other agricultural products on weekends and holidays only from 6 a.m. to 2 p.m. ii. Community oriented live performance theater. 3. Uses Not Permitted a. Schools, private or public. b. Medical office or clinics. 6 75A-152 c. Commercial uses with vehicular dive-through lanes or windows (i.e. drive-through restaurants, pharmacy or similar uses) are prohibited. d. Fast food or exclusively take-out restaurants. e. All other uses not expressly permitted or conditionally permitted in this ordinance 7 75A-153 PART III. DEVELOPMENT STANDARDS The City Place Specific Development District is intended to allow the development of a mixed-use project maintaining a commercial presence along Main Street, while introducing a mixture of multiple family housing to the eastern portion of the development site. The following general development standards are applicable to this project: A. Floor Area Ratio/Density. The following sets forth the maximum allowable floor areas for the various permitted use classifications of the project. The overall Floor Area Ratio ("FAR") of the Main Street Concourse project of approximately 2.54. This FAR represents the maximum intensity of development for the site. 1. Floor Area Ratio (F.A.R.) The maximum floor area ratio for the project site shall be 2.54. The FAR is calculated by dividing the total square footage of the structures by the total square footage of the project site. Consistent with the General Plan, parking structures are not included in the FAR calculation. 2. Parcel Size The City Place development project site is 17.7 acres. Subdivision of the parcel shall be consistent with Vesting Tract Map No. 2004-06 (County No. 16565). In no case shall commercial buildable parcels be less than 6 acres in size and residential buildable parcels be less than 2 acres in size. 3. Screening All appurtenances shall be located outside any required setback and shall be screened from view. 4. Parking A. As a mixed-use development, the Specific Development standards recognize the opportunity to share parking amongst the mixture of commercial uses. In addition the SD 59 acknowledges that the mix and proximity of residential units and commercial space allows for the opportunity for a variety of transportation modes, primarily walking as an alternative. As such, the following parking is required: 8 75A-154 a. Parking has been calculated utilizing the Urban Land Institute methodology for shared parking. As such, the following square footage can be utilized within the commercial area of the City Place development project: For the first 23,300 square feet of restaurant, 33,800 square feet of retail, the parking requirement shall be 410 parking spaces. ii. Any additional development above item 4A.a. i. shall be parked pursuant to the City's parking standards then in effect. b. Residential High Rise Parkin i. One, two and three bedroom units shall provide two parking spaces per unit. ii. Studio units shall provide one parkin sg pace er unit. iii. In addition to items 4.b.i and ii 70 parking spaces or an additional 10.5% whichever is greater shall be provided. bc. Parking Setbacks i. Internal Loop Road: The minimum required setback for the parking area is 15 feet as measured from edge of sidewalk. sd. Screening All appurtenances shall be located outside any required setback and shall be screened from view. de. Landscaping: i. Landscaping throughout the project shall be in compliance with the landscape plan attached. 9 75A-155 ii. The landscape plan shall be fully implemented prior to the issuance of any certificate of occupancy. 5. Open Space a. A minimum ground level open space shall be provided at a minimum rate of 60 square feet per unit. This ground level open space shall be centrally located on the site to provide access to all units. Private open space shall be provided at a minimum rate of 50 square feet per unit. b. For a high rise tower, common open space with a minimum of 35,109 square feet. Such open space shall provide at minimum the following pool spa fireplace seat walls tables chairs chaise lounges as well as mature landscaping 6. Signage a. All signage shall comply with the Santa Ana Municipal Code. b. Prior to issuance of any sign permits or certificates of occupancy for any building or portion thereof, a comprehensive sign program for the entire site, including directional signs and graphics, shall be submitted to and be approved by the Planning Division. 7. Plaza and Fountain Design a. The overall plaza design theme shall incorporate a minimum of 6 major pedestrian-level water features within the commercial component and 7 pedestrian level water features elements within the residential component. b. The plaza landscape palette must include a minimum of four (4) tree species, to be approved by the Landscape Development Associate prior to the issuance of any building permit. The minimum established size for palm trees shall be 30 feet brown trunk height. Non-palm tree species shall be a minimum of 20 feet in height and 60-inch box. 10 75A-156 c. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless specifically submitted to and approved by the Planning Commission ~ °*°a - ~~*~~~ T*°~ ~ ~ °~ d. Plazas shall incorporate seating, benches and landscaping to provide visual interest and additional amenities within the plaza. e. Pedestrian amenities shall be provided such as lighting, planters, unit pavers, and bicycle racks. f. The color and appearance of the plaza furniture products and other elements must complement the overall plaza design and building architecture. g. Benches and pedestrian seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. h. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other project furnishings. Bike racks shall be provided at key activity locations within the plaza. j. All street furniture surfaces, pedestrian-level walls and amenities shall incorporate graffiti resistant coatings. k. Soft as well as hard surfaced areas shall be incorporated into the Plaza area. Plaza area paving shall consist of quality decorative elements. 1. Lighting height in the plaza area should be at a pedestrian scale. A range between 16 feet and 22 feet in the plaza area should be fully illuminated from dusk until dawn. The overall lighting shall be maintained at one-foot candle and incorporate other pedestrian-oriented lights, such as lighted bollards. Uplighting of trees and other site features is also required. m. The required plaza area shall include adequate provisions for the on-going maintenance of all plaza and pedestrian improvements. 11 75A-157 n. Plans shall include design details, materials and provisions for the on-going maintenance for all interior public areas within the plaza area. Public Art a. Public art valued at one half of one percent of the overall project construction valuation is required. The cost of any water feature or portion thereof shall not be included for purposes of complying with the public art requirement. Public art may be comprised of multiple art pieces, however, at least one such art piece shall be placed at the northeast corner of the project site adjacent to Main Street and Memory Lane. 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 for review and approval prior to issuance of any certificate of occupancy. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed prior to the issuance of any certificates of occupancy for the project. b. 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. c. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. d. 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. e. 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. f. 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. 12 75A-158 B. CC&Rs. Reciprocal easements and Conditions, Covenants, and Restrictions (CC&RS) tying the overall project together as an integrated development and providing for joint access, ingress, egress, drainage, property maintenance standards, trash pick-up operations, circulation and parking management shall be recorded with the first final map prior to for the first phase of development. The residential and non-residential portions may be described in separate sections but they must be tied together by a single master document. The Master CC&R's shall address trash and reciprocal use rights in the residential and commercial components. C. Building Height. On any lot or portion of a lot, except Lot 1 of Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) in of the Specific Development Plan area no building or structure shall exceed 50 feet in height, as measured from the lowest adjacent finished grade. 2. On Lot 1 of Vesting Tract Map No. 2008-04 (County Map No 17242) no building or structure shall exceed 366 feet in hei ht as measured from the lowest adjacent rg ade. D. Setbacks. Setbacks at ground level are established to enhance pedestrian space throughout the district, create compatible relationships between existing and future building street elevations and recognize opportunities to create new open space resources, such as plazas, pedestrian ways and landscaped areas. Except as otherwise indicated, all setbacks shall be measured from the street side property line to the first building element or structure. No building, structure, or parking facility shall encroach into any required perimeter setback either at or below grade. For the purpose of this Plan, a street side property line is that line created by the ultimate right-of--way line of the adjoining public street. Minimum setbacks are as follows: a. Main Street (perimeter): The average building setback shall be 19.5 feet. The minimum setback shall be 8 feet. This setback area may include hardscape as shown on the approved site plan. b. Lawson Way (perimeter): The average building setback shall be 18 feet. The minimum setback shall be 7 feet. 13 75A-159 Memory Lane (perimeter): The average building setback shall be 11 feet 8 inches. The minimum setback shall be 3 feet 4 inches. Hardscape, landscape and water features shall be provided in the required setback as shown on the approved site plan. d. City Place ~~e Drive (interior street set backs): The minimum setback shall be 15 feet measured from street curb. e. Jeanette Lane (interior street setbackl: The minimum setback shall be 13 feet measured from street curb. 2. Required on-site perimeter landscaped setbacks shall not exceed an aggregate 33% slope. 3. Within the interior of the project, retail canopies may project five (5) feet into setback area. E. Site Coverage And Open Space. 1. For purposes of this Section ~, open space shall not include private streets or driveways, roadways or parking stalls. Open space does include landscaping, walkways, and covered arcades. 2. Residential open space may be private common area or private yard but shall in no event include any space provided in required setback areas. The CC&Rs shall require that all residents be allowed access to all residential common areas in the project, subject to reasonable restrictions as may be imposed for security and safety by property management. No required setback area shall be calculated as required open space. 3. Individual parcels or lots will not be limited in site coverage. Each parcel shall have a minimum 120 feet of street frontage. 4. Single family attached residential shall provide a minimum of 50 square feet of ground level private yard open space per unit, which open space shall be adjacent to the living, dining or kitchen area of each unit. Perimeter fence shall be provided and shall not exceed five feet in height on the exterior and 42 inches on the interior. 5. Condominium units shall contain a balcony with dimensions not less than six feet in any direction of private open space area. 14 75A-160 6. Pathways from the common area through the private yard open space shall not be included in the calculation of private open space area. F. Parking. 1. Vehicular site access points will be provided from Lawson Way, Main Street1 ~ Memory Lane and from Jeanette Lane, as defined on the site plan. 2. There shall be no sharing of residential parking. 3. Parking gate locations and stacking distances shall comply with applicable Department of Public Works policies. 4. No partitions, walls or other obstructions shall be built or placed with the garages preventing the spaces from being used by residents for the parking of vehicles. 5. Recreational vehicle, boats, trailers or similar storage is prohibited on-site. 6. The townhouses shall be designed with vertical roll-up garage doors, where applicable. 7. All paved areas shall be sloped to drain. Finished slope of areas paved with asphalt concrete (AC) shall be not less than one percent. Finished slope of areas paved with portland concrete cement (PCC) shall not be less than one-half of one percent. Portland Cement concrete gutters shall be installed to receive drainage from asphalt concrete paved areas; such gutters shall be not less than three feet in width. Residential parking is calculated separate from commercial designated parking and no provision is made for shared parking consideration. 9. All parking areas shall be surfaced with material so as to provide a permanent surface capable of withstanding the type of vehicular traffic to which such an area is likely to be subjected as follows: a. Covered Parking Areas -Passenger vehicle parking areas within or under building shall be paved with Portland Cement Concrete with a minimum compressive strength of 2,000 p.s.i. 15 75A-161 b. Open Parking Areas -Parking areas other than those within a building may be paved with asphalt concrete. Asphalt concrete pavement shall be a minimum thickness of three and one-half for passenger vehicle parking areas. Thickness of asphalt concrete may be reduced to a minimum thickness of two inches for passenger vehicle only traffic, provided an approved aggregate base course is constructed under the asphalt pavement. The minimum thickness of such base course shall be four inches. c. Surfacing, Parking or Drive Aisles -All off-street parking, vehicle maneuvering areas, turn-around areas, driveways, and private streets, shall be surfaced, and thereafter maintained with Portland Cement Concrete poured to a minimum thickness of 5'/2 inches. 10. Paved areas shall be designed to carry surface water to the nearest practical street, storm drain, or natural watercourse. Concentrated flows of water from parking areas shall not flow by gravity over any public property or pedestrian walkway, but shall be collected in an appropriate manner within the property confines and conducted under the sidewalk. 11. All parking areas shall be maintained in a safe and sanitary condition free of dust, mud, or trash, and shall be kept in good repair. Any alteration, enlargement, maintenance or repairs shall be pursuant to the aforementioned standards. 12. All parking spaces shall be double striped in a manner clearly showing the layout of the intended parking stall. Such striping shall be maintained in a clear, visible and orderly manner. G. Loading Areas. Entrances and exits to loading facilities should be limited in number and shall not interfere with the flow of traffic along the perimeter streets. 2. Loading areas should be located so as to minimize potential for intrusion into residential portions of the project and adjacent neighborhoods while allowing for efficient utilization by commercial users. Loading areas shall be located and designed to minimize direct exposure to public view. These areas shall be screened with landscaping and walls to reduce visual impacts. 16 75A-162 4. Loading areas shall be visibly separated from public entrances and parking areas. 5. Loading stalls shall be designed to not interfere with circulation or parking, and to permit trucks to fully maneuver on the property without backing up from or onto a public street. 6. Loading areas shall be graded to drain surface water to an alley, street or public storm drain. Surface water shall be conducted under any intervening public sidewalk by a drain approved by the Public Works Department and in accordance with a valid NSDES Permit. Under no circumstances shall surface water be allowed to collect in pedestrian areas. 7. The surface area used for any loading activity shall be paved with not less than 4 inches of asphaltic concrete on 8 inches of crushed rock base, or with 5 '/2 inches of Portland concrete cement. Soil conditions or the nature of the trucking activity may necessitate greater requirements as determined by the Division of Building and Safety and a soils report prepared by a licensed soils engineer. 8. Each loading space aligned with and directly adjacent to a parking space shall be clearly designated, "LOADING ONLY." 9. At a minimum, separate loading areas shall be designated on the approved site plan or any modification thereto, for each adjacent retail shops/restaurants. 10. A loading areas for the project shall be able to accommodate a 55 foot semi-trailer for the Building E. H. Storage Areas/Mechanical Equipment. All mechanical equipment shall be screened below parapets and situated to minimize visual impacts. 2. No outdoor storage shall be permitted. 3. There shall be no exposed television, ham radio, dish or other antenna. I. Refuse Collection Area. 1. A refuse collection area shall be located at each loading dock per approved site plan. 17 75A-163 2. All outdoor refuse collection areas shall be visually screened from access streets and adjacent property by a complete opaque screen or by rolldown screened doors, or by landscaping and fencing. 3. No refuse collection areas shall be permitted between a frontage street and the building line, unless adequate screening is provided. 4. The commercial and residential uses shall provide a trash pick-up operation agreement to be included in the CC&R's for the project. Each trash enclosure shall have a minimum of six inch concrete slab in front of the enclosure that is at least the same dimension as the trash enclosure. 6. Townhouse unit trash vestibules shall be designed with a hose bib for washing out the area. 7. All trash enclosures throughout the project shall be designed with metal doors. J. Telephone, Electrical, Water, Gas, Cable TV, Storm Drains and Sewer Service. 1. All "on-site" utilities shall be placed underground. 2. Transformers or terminal equipment shall be visually screened from view from streets and adjacent properties and may be located in concrete vaults below grade. There shall be no exposed downspouts, scupper drains, electrical or mechanical limes on the building. All mechanical equipment shall be screened from view in an architecturally integrated manner. 4. All residential units shall be separately metered for electrical, gas and water service. Sanitary sewer, storm drainage and water service shall be designed as a private system on-site. There shall be private water meters as outlined in Section 34-313.5 of the Santa Ana Municipal Code. 6. The utility lines in the townhouse drive aisle shall be laid out so as to not prevent the planting of trees and other landscape material in the drive aisle area. 18 75A-164 K. Maintenance. The entire project shall be maintained to exceed community standards for attractive and sanitary conditions. The CC&Rs for the project shall set forth the maintenance procedures applicable to the project. A maintenance agreement approved by the Executive Director of Public Works Agency shall be executed with the City for the maintenance of special pavement treatment, planting, street lights, etc. in the public right- of-way and in required easement areas. This agreement shall be executed with the City prior to recordation of any subdivision map and included or referenced in the CC&Rs for the project. 19 75A-165 PART IV. DESIGN STANDARDS A. Interior Streets City Place ~~ Drive. The tone and pedestrian experience of the project will be largely determined by "Cit P~ lace ~~s~ Drive," a wide interior street which will curve through the project. City Place 'T'''° r'^~^^~•r~° is intended to lend a unifying component to the project as well as link different uses together. a. Cit Pie ,~ Drive will consist of a 34' road bed with minimum 14 feet walkways on either side covered arcades may count up to nine rectilinear feet of the walkway. b. Cit P~ ~~se~se Drive will not be a public street, but will be open to the public subject to parking management rules and regulations as approved by the City and contained in the CC&Rs for the project. c. All pedestrian walkways will be separated from the vehicular areas by curbs and gutters. d. Handicapped access ramps will be provided per the Code. e. Cit P~ lace ~~ Drive will be designed to accommodate fire trucks, semi-trucks, and other service vehicles. f. Cit Place ~.~ Drive, including all roadways, walkways, landscaping, furniture and fixtures will incorporate high quality materials and enriched paving. The overall effect should include dramatic lighting of landscaping, signs and buildings. g. Street furniture and pedestrian shelters are elements that would contribute well to the unified street edge. One style will be used throughout City Place ~a~ Drive in order to create a unique sense of place. Seats, benches, trash receptacles, bicycle racks, telephones, light fixtures, potted plants, signage and banners consistent with the architectural themes and concepts and other miscellaneous street furniture shall be included in a coordinated manner throughout the City Place area. 20 75A-166 h. Tree wells shall be a minimum of three feet by three feet with protective tree grates and collars. 2. Residential Internal Streets. a. The internal circulation road within the residential component of the project will have a minimum 22' wide paved roadbed and a minimum 3 ft. of landscaping on either side. The road is intended to serve as an internal road open to residents and their guests, Property management, garbage carts, etc., but it will not be a publicly dedicated street. No heavy trucks will be allowed on the internal road. b. The internal circulation road will incorporate high quality masonry paved materials throughout the residential units. 3. Vehicular Loading Access Roads. a. Service roads will incorporate asphaltic concrete paving with curbs and gutters. b. All service roads will be accessible by semi-trucks (wheel base 50) and service vehicles. c. Colored paving materials and concrete may be used as accent materials at entry locations (not including public right-of--way or required easement areas) on the property to visually define entryways. B. Building Mass, Form And Architectural Style. One critical component of the City Place "'~~~~ c~..oo+ r,...,,.~,,,.~ design is the consideration of architectural style, mass and form. Architectural style shall impart a distinct building image. Mass shall relate to the desired scale and form shall be used to lend interest to the overall effect of the mixed use development. 1. Building masses shall be simple in form and composed of strong geometric shapes including rectilinear forms with facade variations, round, columnar, stepped (terraced) or pyramidal shapes. Building mass forms may be composed of ornate historical building styles or a combination thereof. 21 75A-167 2. General building form shall be indicative of the functions that take place within. Pedestrian spaces and entrances should be apparent and ceremonial. 3. Internal building structure shall be delineated with clear definition of floors and vertical supports. 4. Large flat unarticulated building faces shall be avoided. 5. Window fenestration must be carefully orchestrated to complement the basic masses, provide scale and modulation of building surfaces and to allow perferation of solid shapes. 6. The mass form and orientation of commercial buildings must be sensitive to adjacent residential areas and pedestrian linkages. 7. Building forms may be exaggerated to express a particular style. 8. Special architectural enhancement shall be included at the pedestrian level of all commercial and retail buildings by utilizing added facade articulation and detail variation. C. Materials. The use of quality materials and detailing on highly visible surfaces will add elegance and maximize the statement of the style of the development. The City Place development will embrace innovative uses of contemporary architectural materials. 1. Colored ceramic tiles, glass blocks, stucco, plaster, masonry, stone, and colored wood or high quality metallic trims are acceptable finish materials. 2. Textured and smooth concrete, decorative or textured concrete blocks, or steel and high quality metallic panels are appropriate building materials. 3. Non-reflective glass shall be used at pedestrian level for viewing and window shopping purposes. Reflective glass at upper levels is acceptable, but shall be compatible with the design style of the rest of the City Place project. 4. The use of cloth awnings, fixed canopies, metal hand rails and other elements which cover and protect windows and pedestrian areas are encouraged. Signage on such elements must be consistent with the sign requirements contained in this Plan. 22 75A-168 5. Monolithic glass surfaces may be used with other accent materials in a visually harmonious manner in special applications as accent but should not be used as the dominant architectural theme. Structures utilizing glass curtain walls as the predominant design element are not permitted. 6. Glass storefronts shall be provided facing all streets, City Place use Drive, and the pedestrian oriented public plazas. 7. All building and site finish materials, colors and designs shall be reviewed and approved by the Planning Division prior to submittal to Building Division Plan Check. Security gates for storefronts, if provided, shall be designed inside of the buildings. D. Color. Choices of color should promote a lively, festive and warm atmosphere. Dull colors should be avoided or used in limited amounts. In general warm contrasting colors should prevail with bright colors and pastels used for accent and detailing. A sense of pageantry shall be promoted through the use of color on signs, lighting, flags and banners and other devices. E. Public Art. Various forms of public art may be integrated into public spaces (not including public right-of--way) throughout the project. F. Detail. Reveals, recesses and other architecturally sculptural elements shall be used to accent key features of the architectural design. 2. Upgraded light fixtures, door and window details and other feature items are encouraged. 3. Banners, flags and other colorful devices may be used to accentuate linear relationship at outdoor areas but only when approved in conjunction with the signage program as set forth herein. 23 75A-169 4. All buildings shall incorporate architectural detail, multiple materials, generous landscaping, lighting effects and strong architectural design themes to soften building mass. All architectural elements including building components shall be part of an integrated design. The entire project shall have a cohesive statement of theme and style. 24 75A-170 PART V. LANDSCAPE MATERIALS AND DESIGN The design guidelines outlined here will assist in achieving a distinctive development character for the project while ensuring compatibility between commercial and adjacent residential land uses. These plants are recommended, however, actual plant choices may be substituted depending on experience and actual soil conditions. The high quality of the development is reinforced through the coordinated design and selection of landscape and paving materials, and emphasis on unique landscape features. As phases are implemented, landscape plans (including landscape plans for any temporary parking areas) shall be approved which are consistent with implement these concepts of Exhibit A and B. Detailed landscaping plans prepared by a landscape architect, shall be submitted to and approved by the City of Santa Ana Planning Department and Public Works Agency (for public right-of--way areas) prior to issuance of a building permit and installed prior to issuance of a certificate of Use and Occupancy for the phase in question. Off-site landscaping shall be approved by the Department of Public Works as part of any street improvement plans. Schinus terebinthifolius, Brazillian Pepper, size: 24"-60" box, 15'-0" to 35'-0", informal spacing. A. Temporary Landscape Adjacent To Undeveloped Parcels. Areas of the site not developed in the initial phase may be developed as surface parking and if so developed shall comply with the following standards. A temporary landscape will be installed in all undeveloped areas. Setback Areas -Will be fully planted with turf, trees and ornamental groundcover. 2. Parking Areas -Trees equal in number to one (1) per each ten (10) parking stalls, size: minimum 15 gallon. (These trees shall be arranged in eight and one-half (8-1/2) feet by eighteen (18) feet minimum planting bays surrounded by 6" high curb). 3. Berm -Architectural berm of sufficient height (but no greater than 3 feet) to screen surface parking lots shall be installed along Main Street and Owens Drive. Berm will be fully landscaped, and the size, number and type of planting shall be in accordance with the City's commercial development standards. Turf areas shall not exceed four to one slope. 25 75A-171 4. Canopy Trees -Planted informally will supplement streetscape plantings. Size: minimum 24" box. Species to be determined. The size, number and spacing shall be in accordance with the City's commercial development standards. 5. Turf Types -Shall be consistent throughout project (Marathon II) 6. Shrubs -Shall be used for screening of parking areas and for special effects at building entries. 7. Special Sculptural Features -Will accent undeveloped parcels, prior to project buildout. B. General Notes. 1. All landscaping shall be maintained in a healthy and attractive condition. Maintenance should be carried out in accordance with established horticulture practices. Irrigation problems must be resolved promptly to assure plant survival. Prior to planting soil must be property prepared to assure plant survival. 3. No use of Queen Palms for the project interior areas. 4. No electrical, mechanical or plumbing apparatus shall be located in required setback areas. 5. All landscaped areas shall be irrigated using an automatic irrigation system. A schematic irrigation system employing pop- up type sprinkler heads, backflow preventer, automatic time clock, and where applicable, a quick coupler adjacent to all trash enclosures shall be provided. 6. On site trees will be spaced in coordination with required existing parkway trees. 7. The development will provide double-staking for all newly planted trees (on and off site). 8. Only low shrubs and/or ground cover shall be planted in landscape areas used for parking overhang. 9. Planting and landscape walls shall be used to screen all appurtenances, such as transformers, meters, trash enclosures, air conditioning units, etc. 26 75A-172 10. Phasing of landscape implementation shall be compatible with the construction schedule for the entire project, as per the approved site plan. 11. All fountains and water features throughout the project shall be plumbed for non-potable "gray water" for conversion when such water is available. 12. A xeriphytic landscaping materials and irrigation design shall be used for this project. In addition, the plant palette along the southerly edge of the project shall be compatible with that of Santiago Park, where the park is adjacent to the project. 27 75A-173 PART VI. SIGNAGE A. Intent. Every sign in the City Place project will be part of a planned sign program which will be submitted for Planning Division review and approval in accordance with the criteria set forth in this Plan and SAMC. The purpose of this section is to set forth permitted sign types and provide minimum standards for signs within the City Place Specific Development Plan. Consequently, this document identifies and specifies those design criteria for the planned sign program which are different than those set forth in the Code. In considering the planned sign program, the provisions of the Plan shall control. The City Place project is envisioned as a superior quality urban-style mixed-use complex, and architecturally spectacular. Environmental graphic design will be innovative and attractive but never excessive. Tenant identification on the perimeter of the project (i.e. external signage) will be held to a practical minimum. However, it is critical that the internal signage, particularly the signage along the City Place ~, be compatible with the kind of exciting dynamic environment which is intended to be created. B. Sign Message Categories. The project sign program shall address the following categories of information: • Project and major facilities identification at site entries • Tenant identification signage • Regulatory vehicular signage • Directional vehicular signage • Street identification • Informational pedestrian signage • Directional pedestrian signage • Building identification signage • Site directories and orientation maps • Service signage • Parking level and area identification signage • Visitor directional and informational signage • Building address signage • Building site directories • Typical door identification signage • Restroom and telephone identification signage • Operation information signage 28 75A-174 • Loading dock information • Loading dock numbers • Construction barricade C. Physical Sign Types. Physical classification of project signage will be by the following categories: 1. Freestanding signs. 2. Wall/canopy signs. 3. Projecting signs. 4. Marquee signs (Theater Only). 5. Under canopy/window/hanging signs. D. General Criteria. The following design guidelines generally address the design criteria for the sign program. 1. Color and typography of signs will be evaluated on the basis of aesthetics and legibility rather than conformance to strict criteria. 2. Intermittent lights, bare bulbs, neon, illusions of motion, or other mechanical movement are acceptable only within the interior of the project. Such signage could be used with respect to the theatre, or restaurants. Such signs shall not be visible from the perimeter public right-of--way or the residential development in the project. 3. Well designed pageantry systems consisting of flags and banners, festoons, flag canopies and related displays will be permitted on the interior of the City Place project, provided they are consistent with the overall design of the signage plan, and do not create a safety hazard and do not adversely affect adjacent land uses. 4. The sign program shall acknowledge approval of carefully worded on-site circulation directional signage. E. Criteria For Individual Sign Types will be determined by the approved sign program. Shall conform to size limitations as outlined in SAMC. Freestanding Signs Freestanding signs shall conform to SAMC requirements. 29 75A-175 2. Wall/Canopy Signs. a. All signs need not replicate a specified shape, design or materials. Diversity will be allowed, provided that the signs relate to each other well even though they are configured differently. Projecting Signs. a. Within the interior portions of the project, such as along the Cit, Place ~~se~se, one projecting sign per pedestrian level tenant may be provided. b. The project may provide any number of such signs with mixed types so long as the style of the signs area aesthetically compatible. Projecting signs shall be located no closer than 15 feet from one another. The sign face of each projecting sign shall be compatible with the scale of the space being identified. 4. Marquee Signs. The theater may have a major marquee sign at the theater entrance. The marquee sign may be large enough to accommodate the informational requirements of the uses being identified, may employ changeable copy and appropriately sized based on unit and frontage. 5. Signs Under Canopies And Marquees. The area of any sign under a canopy or marquee shall not exceed Santa Ana Municipal Code. Such signs shall meet all minimum Building Code height clearances. 6. Temporary Identification Signs. a. Per Santa Ana Municipal Code b. Per Santa Ana Municipal Code Per Santa Ana Municipal Code 7. Submission of City Place Plan Signing Design Program. 30 75A-176 Project applicant shall submit a planned project sign program for review by the Planning Division in accordance with the standard Planning Division procedures and this Plan. 31 75A-177 PART VII. LIGHTING Street lighting can be used to help unify the City Place_and add to the "festive" atmosphere being sought. On-site parking lot and building light fixtures may vary from one sub-area to the next but illumination levels shall remain consistent and not compete with street lighting and signage. Appropriate special lighting effects that will be compatible with the overall design concept are encouraged. Street lighting and parking lot parking contribute to the safety and security of the project. Unique lighting fixtures may provide easy identification of the project for motorists. Lighting potentially visible from adjacent property shall be subdued and incorporate cut-off shields or be oriented to the interior of the project. Lighting shall not interfere with vehicular traffic. A. Street Lighting/Exterior To The Project. (Public Right-of--Way) 1. All street lighting along Main Street, Memory Lane, a~ Lawson Way and Jeanette Lane shall be of singular design placed at regular intervals, mounted atop concrete or metal standard and installed per City specifications as required. 2. Light standards, poles, and bollards shall be of common design with durable finishes and materials to create unity along the project perimeter, in accordance with the City's commercial development standards. B. On-Site Parking Lot, Pedestrian Lighting, Cit Place ~se~se Drive. Pedestrian scale lighting should illuminate entry ways, courtyards, parking lots and other such areas. 2. Lighting should be used to enhance landscaping and reinforced architecture, with dramatic uplighting or wall shadow effects with plant materials encouraged. 3. Parking lot light fixtures and bollards shall be consistent in styling with the design theme proposed for that sub-area of the project. 4. The use of neon and other specialized lighting effects that would reinforce the attractiveness of the project to pedestrian traffic and incorporate the design theme of the project may be used. 5. The use of white or clear string lighting in trees around outdoor pedestrian areas may be used. 6. Washing large wall areas with light to create shadows from landscape materials may be used. 32 75A-178 7. Lighting along the City Place ~ Drive shall be carried out as part of the unified scheme to help create festive recreational atmosphere. C. On-Site Building Lighting. Service area lighting for large uses shall be contained within service yard boundaries with light sources concealed. 2. Building illumination and architectural lighting will be creative and reinforce the design theme. Indirect wall lighting or "raw wall washing" overhead downlighting, will be utilized throughout the commercial development. In residential areas, warm simple lighting will be employed. These components could include uplighting of building entrances and courtyard trees, subtle soft lighting effects, washing of walls with light from concealed ground sources. 4. In residential areas the use of specialized lighting effects such as neon and internally illuminated signs shall be avoided as shall any blinding, bright or flashy effects. 5. Lighting shall not cast any glare onto adjacent lots and streets outside the perimeters of the City Place project in such a manner as to decrease the safety of pedestrian and vehicular movement. 6. Architectural lighting should be used to articulate the particular building design. D. Required Minimum Maintained Illuminance Levels shall be Per Santa Ana Municipal Code and approved by the Police Department. 33 75A-179 PART VIII. OPERATIONAL STANDARDS Unless herein permitted to the contrary, all commercial activity shall be conducted within a building. 2. All activity on the site shall be designed, built, operated, and verified in compliance with the mitigation monitoring program of the certified final Environmental Impact Report for this project. 3. Should special assessment, Mello Roos, or other financing be utilized, written disclosure of such financing shall be disclosed in writing to all purchasers and lessees within the project. 4. The following study shall be reviewed, approved and from time to time modified and approved by the City shall be implemented and maintained throughout the project: Trash operations plan All residential units within the project shall be built, subdivided and sold for individual ownership. 6. All trash consolidation areas within the project including residential shall be maintained and operated for the recycling of solid waste materials to the satisfaction of the Public Works Agency. 7. The trash pick-up operational plan (letter agreement with the City) shall be incorporated into the CC&R's of the project. 8. All circulation and parking operational procedures for the entire project including but not limited to the bollards, loading zones, parking management, and trash pick-up shall be maintained by the project management and included by reference in the CC&R's. 9. The CC&R's shall include provisions to prohibit the construction of walls in the townhouse two car garage that will disrupt the ability to park resident vehicles in both spaces. 10. The CC&R's shall prohibit recreational vehicle parking or storage on-site. 11. The CC&R's shall contain provisions to preclude exposed television, ham radio, dish, or other antenna and mechanical equipment. 34 75A-180 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND MAIN STREET CONCOURSE, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1: The City Council hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to 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, and two continuances, on January 12. 2009, recommended approval of this Amendment to Development Agreement. E. Entering into this Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of City Place 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 February 2, 2009, approved and certified an Environmental Impact Report (EIR) in conjunction with this Project and adopted a mitigation monitoring plan, written findings and a statement of overriding considerations and the Council adopts this ordinance based upon said EIR, plan, findings and statement of overriding considerations. Ordinance No. NS- rage 1 75A-181 SECTION 2: The Amendment to 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 with such nonsubstantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. In case of any dispute between the terms or effect of Tentative Tract Map No. 2008-04 and the terms or effect of the Development Agreement, the Development Agreement shall prevail. SECTION 3: This ordinance shall not be effective unless and until Ordinance No. NS-xxxx, Resolution No. 2008-XXX and Resolution No. 2008-XXX become effective. If said ordinance and resolutions 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 any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2009. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney sy: Ordinance No. NS- Page 2 75A-182 Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS- rayc ~ 75A-183 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. BOX 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE ~ 6103 FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and MAIN STREET CONCOURSE, LLC Dated: , 2009 75A-184 FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND MAIN STREET CONCOURSE, LLC This FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("First Amendment") 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 MAIN STREET CONCOURSE, LLC, a California limited liability company ("Owner" or "Property Owner"). RECITALS. This First Amendment is entered into with reference to the following facts: 1.1 Original Agreement. The City and Owner's predecessor in interest, Orient Corporation of America, Inc., a California corporation ("Orient"), are parties to that certain Development Agreement entered into on or about May 3, 1993 and recorded as Document Number 93-0385606 with the Recorder's Office of the County of Orange (the "Original Agreement"). (1) The purpose of the Original Agreement was to facilitate the development of the mixed-use project contemplated by the City's Specific Design Zoning Designation SD-59 (SD-59), Vesting Tentative Map No. 14408 and EIR No. 93- 1.2 Amended And Restated Agreement. Orient's interest was subsequently acquired by Owner, who thereafter with the City entered into that certain Amended and Restated Development Agreement on or about February 14, 2005, and recorded as Document Number 2005-000258102 with the Recorder's Office of the County of Orange (the "Amended Agreement"). (1) Owner at that same time obtained approvals for a modified project, including an amendment to SD-59, together with a new Vesting Tentative Map No. 14408 and EIR No. 2004-01. (2) Section 5.4 of the Amended Agreement provides that Owner shall consider the design and application for an additional residential, for-sale, high rise tower on its 18 acre property in the general location as specified in Exhibit F to the Amended Agreement. (3) The Owner has now proposed construction of a 31 story, 353 residential unit for-sale (i.e., condominium) project in the general location specified in Exhibit F to the Amended Agreement. This project would require amendment to SD-59 and other discretionary approvals by the City, including a new tentative tract map and Environmental Impact Report. 75A-185 (4) In light of the Owner proposal to construct the 31-story, 353 residential units, for-sale (i. e., condominium) project, the Owner and City have agreed that it is appropriate to adopt this amendment to the Amended Agreement. 1.3 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 First Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This First Amendment is intended to assure adequate public facilities at the time of development. (2) This First Amendment is intended to assure development in accordance with the City's General Plan, applicable Specific Plans and Specific Development District No. 59, as modified concurrently herewith by Ordinance No. NS- (3) This First Amendment will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District No. 59. (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 First Amendment. (5) This First Amendment 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 First Amendment are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.4 Owner. Owner represents and warrants that it has a legal or equitable 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 "Sky Lofts Property"). The Sky Lofts Property is approximately 2.01 acres in size and is currently vacant. 1.5 Approval of Owner. Owner further hereby represents that it has approved this First Amendment and is authorized to enter into this First Amendment. 2 75A-186 1.6 Planning Commission -Council Hearings. On November 10, 2008, 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 First Amendment. 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 First Amendment. On December 1, 2008, 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 First Amendment. 1.7 Council Findings. The Council finds that this First Amendment 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 .200_, the Council adopted Ordinance No. NS- approving this First Amendment. The ordinance becomes effective thirty (30) days thereafter. 2. DEFINITIONS. In the First Amendment, initially capitalized terms used but not defined shall have the following meanings unless the context otherwise requires: 2.0.5 "Executive Director" means the Executive Director of the City's Planning and Building Agency or designee. 2.1 "Final Design" means the final design documents for a work of public art, which is set forth in greater detail in Section 5.2 et seq. of this First Amendment. 2.2 "Map" means Tentative Tract Map No. 17242, approved concurrently with this First Amendment. 2.2 "Property Owner" or "Owner" means Main Street Concourse, LLC, being the person, persons, or entity having a legal or equitable interest in the Sky Lofts Property, and includes Main Street Concourse LLC's successors in interest. 2.3 "Sky Lofts Property" is the real property described in Exhibit A and referred to in Exhibit B. 2.4 "Sky Lofts Project" is the development of the Sky Lofts Property as generally set forth in SD-59, Tentative Tract Map No. 17242, Conditional Use Permit No. 2008-34, Environmental Impact Report No. 2007-02, and Site Plan Review No. 2008-05. The Sky Lofts Project does not include the development of any property within SD-59, other than the Sky Lofts Property. The Sky Lofts Project generally is described as follows: (1) a residential multi-family condominium tower including 27 levels of residential condominiums above four (4) levels of above grade parking and two (2) levels of 75A-187 below grade parking. Within the tower a total of 333 residential condominium units will be provided and an additional twenty (20) stacked townhomes will line the south side of the parking structure. (2) The residential condominium units shall range in size from 804 to 2,000 square feet and provide nine (9) feet from floor to finished ceiling for the townhomes and podium level thru level twenty-five (25) and twelve (12) feet from floor to finished ceiling on levels twenty-six (26) and twenty-seven (27). (3) At the grade level, an approximately 2,900 square foot lobby shall be provided. Immediately outside of the lobby shall be two (2) water features announcing the pedestrian arrival point. (4) A 33,690 square foot common space amenity deck shall be installed above the parking structure and include a pool, spa, cabana/lounge, outdoor fireplace, tables and outdoor barbeque. (5) The Podium level shall consist of 4,590 square feet of enclosed common space including a gymnasium, dining and kitchen area, and media room. (6) The height of the tower will be approximately 366 feet inchding the mechanical equipment penthouse. The parking garage will contain 729 parking spaces. (7) All residential units in the Sky Lofts Project shall be condominiums, i. e., not residential units rented by the Owner. To be considered to be condominiums, the Owner shall obtain all necessary approvals for sales of individual residential units, including but not limited to, (a) a recorded, final subdivision map, (b) recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs), (c) a final, unconditional "public report" issued by the California Department of Real Estate pursuant to the Subdivided Lands Act. 2.5 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 under certain circumstances by this First Amendment, and is subject to refinement at the time of installation, by agreement of the Owner and the Executive Director. 3. EXHIBITS. The following documents referred to in the First Amendment are attached to this First Amendment and are identified as follows: Exhibit Referred to Desi nation Description in Section A Sky Lofts Property Legal Description 1.4 B Sky Lofts Property Graphical Description (Site Plan) 1.4 4 75A-188 C Public Art Locational Plan 2.5 D Remaining Offsite Mitigation Measures 5.3 4. GENERAL PROVISIONS. 4.1 Amendment and Restatement. This First Amendment amends, restates and supersedes the Amended Agreement only as explicitly set forth herein, and only as it relates to the Sky Lofts Property. In all other respects, the Amended Agreement shall remain in full force and effect. 4.2 Sky Lofts Property Exclusively Subject to the First Amendment. Until released pursuant to the provisions of Section 8.6 below, no property shall be released from this First Amendment until Owner has fully performed its obligations arising out of the First Amendment. 4.3 Effective Date; Duration of First Amendment. (1) The "Effective Date" of this First Amendment shall be the date that the City Council ordinance adopting this First Amendment becomes effective, which date is thirty (30) days after the City Council meeting at which such ordinance is adopted, unless it or Ordinance No. NS- (the amendment to SD-59) 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 of competent jurisdiction. (2) The term of this First Amendment shall for seven (7) years from the Effective Date ("Initial Term"); provided, however that the Owner may request a single three- year extension ("Extended Term") from the Executive Director of the Planning and Building Agency, which request shall not be unreasonably denied. Nothing herein is intended nor shall it be interpreted 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. (3) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the term of Tentative Tract Map No. 14230, including any lot line adjustment or merger of lots (or any other tentative map approved by the City relating to the Sky Lofts Property subsequent to the Effective Date of this First Amendment), shall not expire during the term of this Development Agreement remains in effect. (4) Notwithstanding subsections (2) or (3) hereof, if, at the end of the original or any modified term, the Sky Lofts Property is in the process of being developed, the term of this First Amendment shall be further extended until such construction in process is completed, not to exceed an additional three years after expiration of the original or modified term. 75A-189 (5) The expiration of this First Amendment shall not terminate any land use approvals approved concurrently with or subsequent to the approval of this First Amendment, but shall merely end the period as to which such approvals are vested against subsequent changes in applicable law pursuant to Section 5 of this First Amendment. (6) Upon the expiration or termination of this First Amendment 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 First Amendment from the public records as to the property or any applicable portion thereof. DEVELOPMENT OF THE PROPERTY. S.1 Existing Rules, Regulations and Policies. The rules, regulations and official policies governing the permitted use(s) of the Sky Lofts Property, with respect to and only with respect to the permitted use(s), density, height, size of structures and intensity of use of the Sky Lofts Property, and provisions for reservation or dedication of land for public purposes and any other exactions or mitigation measures applicable to the Sky Lofts Project shall be those rules, regulations, and policies applicable to the Sky Lofts Property as of the Effective Date, including those set forth in SD-59, as amended concurrently herewith. 5.1.1 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, the City retains the right to enact police power regulations on matters not covered by this First Amendment ("Reserved Powers"), including without limitation: (1) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Sky Lofts Property in accordance with this First Amendment. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Sky Lofts 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: (a) Existing taxes, assessments, fees and charges, except as otherwise specifically provided in this First Amendment; (b) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; (c) 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 (d) Procedural rules of general City-wide application. 75A-190 (2) No vested rights as to any requirements in this Section 5.1.1 either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5.1.2 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Sky Loft Project construction, shall be subject to applicable design standards and guidelines, including without limitation SD-59 and Chapter 41 of the Santa Ana Municipal Code, in effect at the time that any development approval shall be sought for the Sky Loft Project or any unit or structure contained within the Sky Loft Project. 5.1.3 Minor Changes. Upon application of Owner, the Executive Director may approve minor modifications to the discretionary approvals vested pursuant to this First Amendment, 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." 5.1.4 Processing Fees. All fees and charges intended to cover the City's costs associated with processing development of the Sky Lofts 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 maybe revised or adopted during the term of this First Amendment, shall apply to the development of the Sky Lofts Property. 5.1.5 Amendments or Additions to Citywide Fee Programs. This First Amendment shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this First Amendment, which shall be applicable to the Sky Lofts Project or the Sky Lofts Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to the Sky Lofts Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Sky Lofts Sky Lofts Project impacts which were analyzed in the Environmental Impact Report prepared for the Sky Lofts Project, or (b) duplicate any exactions, project design features, conditions of approval, agreements, or mitigation measures contained in the Development Plan for this First Amendment. 5.2 Development, Construction and Completion of Work of Public Art and Other Consideration. In consideration for the extraordinary and significant benefits to the City set forth in this Section 5, the Owner has been legally vested under paragraph 5.1 with regard to the permitted uses of land, density, and intensity of use, Owner shall comply with the provisions of Section 5 of the First Amendment with respect to the Sky Lofts Project. 5.2.1. Schedule For Work of Public Art. Owner shall design, construct and maintain a work of public art only if it does not Commence Construction of the Sky Lofts Project during the Initial term and instead requests and 75A-191 is granted an extension as set forth in section 4.3(2) of this First Amendment. For purposes of this Section 5, "Commence Construction" means those actions (i. e., valid building permit issued by City and substantial, hard construction costs expended in good faith reliance thereon) that would create a vested right in Owner pursuant to Avco Community Developers, Inc. v. South Coast Reg'l Comm 'n, 17 Cal. 3rd 785, 791 (1976), and its progeny. Facilities to Be Constructed 1. Submit Final Design of Public Art. Final design must conform to Public Art Locational Plan. Tri~~erin Event One year from the commencement of the Extended Term, if applicable. 2. Install Public Art. Prior to the City's issuance of Certificate of Use and Occupancy for any portion of the Sky Lofts Project, or two and one-half (2 1/2) years from the commencement of the Extended Term, whichever comes first. With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this First Amendment within the times specified above. During periods of constriction 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 maybe 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 maybe 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. 5.2.2 Responsibility For Costs of Work Of Public Art. The City and Owner agree that Owner shall be responsible for all costs associated with the design, construction, maintenance and repair of the work of public art provided for in the Public Art Locational Plan. 5.3 Remaining Offsite Mitigation Measures. The parties acknowledge and agree that the sole remaining offsite mitigation measures which must be funded or constructed by Owner are as set forth in Exhibit D to this First Amendment. 5.4 Inclusionary Housing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit as a condition of issuance of each building permit which includes one or more residential units, or $1,059,000.00 for all residential units upon the issuance of the initial building permit, whichever is greater. This fee shall be used by the City to build new or substantially rehabilitate existing affordable housing in the City. 5.5 In-Lieu Park Fee. The Owner shall pay a fee of $7,841.00 per unit in lieu of its obligation established by section 34-204 et seq. of the Santa Ana Municipal Code; a 75A-192 provided, however that the fee maybe increased to $10,568.00 per unit if the Owner does not Commence Construction (as that term is defined in Section 5.2.1) during the Initial Term. This in-lieu park fee shall be paid at the same time as those fees the payment of which is currently deferred by the City pursuant to City Ordinance No. NS-2775, or any extension thereto. 5.6 Compliance With Governmental Requirements. Owner shall carry out the design., construction, and operation of the Sky Lofts Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Sky Loft Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Sky Lofts 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 Sky Lofts Property and the Sky Lofts Project, and all other provisions of the City and its Municipal Code (as they apply to the Sky Lofts Property and the Sky Lofts Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et secy., and the Unruh Civil Rights Act, Civil Code § 51 et seq. (collectively "Governmental Requirements"). 5.7 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) Repair of perimeter walls will be specified in the CC&R's in the event of damage. (2) 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.., Main Place Regional Shopping Mall, and surrounding property within SD-59 zoned and/or devoted to commercial use), and the regional and local street grid adjacent to the Sky Lofts Project (e.g., SR-22, I-5, SR-57, Main Street, Town & Country Drive), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (3) The CC&R's shall reflect that balconies may not be used for storage. (4) Terms and Content: i. CC&R's are to be in effect for at least 66 years. 75A-193 ii. Any proposed modifications to the foregoing provisions of the CC&R's will require approval by the Executive Director. 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. The City shall, at least every twelve (12) months during the term of this First Amendment, review the extent of good faith substantial compliance by Owner with the terms of this First Amendment. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the First Amendment at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the First Amendment after the annual review set forth in Section 6.1 above, the City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the Executive Director, the First Amendment 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 First Amendment shall not constitute or be asserted by any party as a breach of the First Amendment by Owner or City. 7. DEFAULT. 7.1 Owner Events of Default. Property Owner is in default under this First Amendment 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 finding 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 First Amendment 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 First Amendment; (3) Failure to comply with Governmental Requirements; (4) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this First Amendment. io 75A-194 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 of the Amended Agreement, identifying with specificity the nature of the alleged default and, when appropriate, the manner in which said default maybe satisfactorily cured. Upon receipt of the notice of default, the Owner shall cure the identified default(s) at the earliest reasonable time after receipt of the notice of 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 First Amendment 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 maybe. 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 First Amendment. third person. (4) Non-performance shall not be excused because of a failure of a (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 First Amendment 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 First Amendment are available to the parties to pursue in the event there is a breach. li 75A-195 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against the City upon termination of this First Amendment 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 First Amendments set forth in the First Amendment, or to enjoin any threatened or attempted violation of the First Amendment; or to obtain any remedies consistent with the purpose of the First Amendment. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This First Amendment shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Sky Lofts Property or any portion of the Sky Lofts Property or any improvement on the Sky Lofts Property by any mortgage, deed of trust, or other security device (or any number of them) securing financing with respect to the Sky Lofts Property or its improvement (any such encumbrance, a "Mortgage"). 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Sky Lofts 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 First Amendment (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 of an Owner Event of Default that cannot practicably be cured by the Mortgagee without taking possession of the Sky Lofts Property (which defaults shall not include defaults "not susceptible of being cured" as defined below), (i) 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 maybe incident to obtaining a relief from stay in the case of a 12 75A-196 bankruptcy/dissolution event) it will commence and diligently pursue cure of such Owner Event of Default promptly following its obtaining possession and; (ii) said Mortgagee shall proceed diligently to obtain possession of the Sky Lofts Property (including possession by receiver) (subject to such delays as maybe 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 maybe 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 nominee, by assignment 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 Sky Lofts 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 maybe, 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 Sky Lofts Property 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 First Amendment; 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 First Amendment 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. 13 75A-197 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 immediately execute and deliver a new First Amendment or amend this First Amendment 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 or amended agreement shall be substantially the same in form and content to the provisions of this First Amendment, 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 First Amendment. Upon execution and delivery of such new or amended agreement, the City shall cooperate with the new owner, at the sole expense of said new owner, in taking such action as maybe necessary to cancel and discharge this First Amendment and to remove Owner named herein from the Sky Lofts Property. 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 First Amendment with respect to the Sky Lofts Property, or any portion thereof, the City shall execute and deliver to Owner appropriate release(s) of further obligations imposed by this First Amendment 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 First Amendment, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This First Amendment constitutes the entire understanding and agreement of the parties with respect to the matters set forth in this First Amendment. This First Amendment supersedes all negotiation or previous agreements between the parties respecting this First Amendment, including without limitation the Original Agreement and/or the Amended Agreement. All waivers of the provision of this First Amendment must be in writing and signed by the appropriate authorities of the City or of Owner. All amendments to this First Amendment 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. Upon the completion of performance of this First Amendment 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 Sky Lofts Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Sky Lofts Project is a private development for purposes of Government Code Section 65864 et seq.; (b) the City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Sky Lofts Property or in connection 14 75A-198 with the Sky Lofts Project; and (c) Owner shall have the full power and exclusive control of the Sky Lofts Property subject to the obligations of Owner set forth in this First Amendment. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this First Amendment are part of this First Amendment. 9.5 Captions. The captions of this First Amendment are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this First Amendment. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this First Amendment, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this First Amendment. 9.8 Time of Essence. Time is of the essence for each provision of this First Amendment of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this First Amendment 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 First Amendment 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 First Amendment. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this First Amendment to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an First Amendment on the effect of such federal or state law or regulation upon the First Amendment, 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 First Amendment and the meaning of the provisions hereof. In addition, the provisions of this First Amendment 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 First Amendment, and in signing this First 15 75A-199 Amendment it does so with full knowledge of any rights which it may otherwise have, and it has freely signed this First Amendment 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 First Amendment, and without duress or coercion, whether economic or otherwise. 9.12 Recording. The City Clerk shall cause a copy of this First Amendment to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this First Amendment. IN WITNESS WHEREOF, this First Amendment 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 , 200 THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W.FLETCHER City Attorney MAIN STREET CONCOURSE, LLC, A California Limited Liability Company By: EMG-MAIN STREET LLC, a California limited liability company, Its Manager By: BDC LLC, a California limited liability company, Its Manager By: Bisno Development 16 75A-200 Company LLC, a California limited liability company, Its Manger By Robert H. Bisno, Manager and Chief Executive Officer 1~ 75A-201 STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 75A-202 File No: 06154511 EXHIBIT "A" All that certain real property situated in the County of Orange, State of California, described as follows: Lot 1 of Tract No. 16565, in the City of Santa Ana, County of Orange, State of California, as shown on a map filed in Book 872, Page(s) 32 to 38, inclusive of Miscellaneous Maps, Records of Orange County, California. Assessor's Parcel Number: 041-212-04 7~5A-203 ' pL O • 2 _ U _ - _ - ~ w _ Z .. r - _., u 2'~S ~ 5}:S ~ ~ ~3€ w ;_S~ 0 3. _ , F. ; e~ ® m ~~ cz IWO~I~E'J 'EUt/23UES aue~auauea~ Sl~Ol ANS 3~Vld Ally y 8 Y a ~~e ~ ~~~.F~~ ~~-se~ ~ ~~~faz `a~y~~=§~ s E% I B I T "$" _g r < ~ i x ~ v ~ 2= w NN m a~ a3 ''a+ F Z U W W ~ S ~ i o~ °~~ ~a y~ N U > U OI ~ a :~W Zr ~ N 'V ~~ KH u, o a" .. wa z Z . rw~ ~O WNO. i~ia ~9a~? ~ z ~ ~o <rc oz c~o~ J m.u a ~ ~ ~ ~°~< < v :~ a ~'> m u ~ 1V N~SAI~~_I nV J'`"V 1 >~~ a o a. o_ 5._a. ~ I I i 1 ii ~ ~ I , .I i I I ', 1 1 1 I ~ t I' 1 I . o ' i ~. k' a rc ~ _ '~ °o ; . 0- 9 m ' , , u $ .01-! ~ I ~ a ? ~. ~~ < U a F- ~ 0 f- °m - .~ a o o _ ~ .. > w < v N Z .~ ~ _ W ~~ ~ ~ a m O ~ Q U ~~~~ - Ox v N n ' O Z N ~ V ' - S J ~ ~ - ~ ~ ~ I a y ~ Q d W ~ O Q O - _`~ I ~ K Q _ ~ ~ LL ~ rc O 6 r d ~ I l Q ~:" ~_. C ~~~~ (6 : y p ~~ 8 Q.. ~ o O ~~ ~ Q ~ ~ J U ~ a ~~ ~ q '`d~ :6 6 Cn ~ '~ pp S~ "a t a g 4 `n 5 ~ U z~ x fq Ctl~ff . Y ~ ~ ~ o ~ 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 Lawson Way at or near its intersection with Jeanette Lane, with the final location to be determined as specified in Section 5.2 et seq. of this First Amenchnent. 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 cf the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed as provided in Section 5.2.1 of this First Amendment. Review and approvals required by the Planning Commission pursuant to Section 5.2 et seq. 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 i. 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. 75A-205 vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. 8. To be eligible, the proposed work of public art shall not be: i. amass produced object from a standard design; ii. a reproduction, whether produced by mechanical or other means, of an original work of art; iii. 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. 75A-206 EXHIBIT D Off-Site Mitigation Measures Improvement Location 1. Landscape Median Main Street from City Place Drive to Town and Country Drive 2. Street Reconstruction Lawson Way from Memory Lane to northern property limit of Sky Lofts Property from curb to curb (not a obligation of owner of commercial parcel of City Place; i.e., parcel located between Main Street and City Place Drive) 3. Slurry Seal Memory Lane from Main Street to Lawson Way 75A-207 B K:1 /27/09 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2008-34 AS CONDITIONED, VESTING TENTATIVE TRACT MAP NO. 2008-04 AS CONDITIONED AND SITE PLAN REVIEW NO. 2008-05 FOR THE PROPERTY LOCATED AT 301 EAST JEANETTE LANE (COUNTY MAP NO. 17242) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of various entitlements in order to construct Sky Lofts, the final portion of the City Place Development located at 301 East Jeanette Lane. The Sky Lofts proposed project consists of a high rise tower, stacked townhomes and a parking structure on an approximately two acre site. The residential segment will provide 333 condominium units within the tower and 20 stacked for-sale townhouses wrapping one-side of the 729-space parking garage. Reaching approximately 366 feet into the air, the tower will provide 27 levels of living space, four (4) levels of above grade parking and two (2) levels below. B. After continuing the matter following a noticed public hearing, at its regular meeting of January 12, 2009, the Planning Commission voted by a vote of vote of 5:1:1 (Yrarrazaval opposed, Turner abstained) to recommend that the City Council: 1. Adopt a resolution certifying Final Environmental Impact Report (EIR) No. 2007-02. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2008-04. 3. Adopt a resolution approving an amendment to Development Agreement No. 2004-04. 4. Adopt a resolution approving Conditional Use Permit No. 2008-34 as conditioned. 5. Adopt a resolution approving Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) as conditioned. 6. Adopt a resolution approving Site Plan Review No. 2008-05. Resolution No. 2009-XXX 75A-208 Page 1 of 6 C. The City Council of the City of Santa Ana held a duly noticed public hearing on the abovesaid actions for Sky Lofts Development on February 2, 2009, and at that time considered all testimony, written and oral. D. Vesting Tentative Tract Map No. 2008-04 seeks to subdivide the land and future residential condominiums. The City Council of the City of Santa Ana determines that the following findings have been established: 1. The proposed project, as conditioned, and its design and improvements are consistent with the Low Density Residential land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) is consistent with the land use designation and density prescribed in the General Plan and will have no adverse affect on the surrounding land uses in the area . 2. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes, as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act provisions. Vesting Tentative Tract Map No. 2008-04 is in keeping with the provisions of the site plan review (Development Project No. 2006-46) and Chapters 34 and 41 of the Santa Ana Municipal Code, all of which pertain to the subdivision of land and development standards for the site. Further, the map will be consistent with Zoning Ordinance Amendment No. 2008-04. 3. The project site is physically suitable for the type and density of the proposed project. The project site consists of approximately two acres of land within Specific Development No. 59. The proposed subdivision contains many street frontages, maintaining adequate frontage for each parcel. Vesting Tract Map No. 17242 has been determined to be capable of supporting the type and density of the proposed project. There are no physical constraints on the site to preclude development. 4. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidable injure fish or wildlife or their habitat. There are no wetlands or unusual flora or fauna on or around the project site. No development surrounding this Resolution No. 2009-XXX 7 5A-2 0 9 Page 2 of 6 site will be substantially affected by this proposal. Environmental Impact Report 2007-02 has been prepared for the proposed project, identifying potential impacts, over- riding considerations and mitigation measures aimed at reducing any environmental impact associated with this project. 5. The design or improvements of the proposed project will not cause serious public health problems. The proposed infill development within amixed-use development is for a residential high-rise tower and will be in compliance with all regulations and conditions specified in the Santa Ana Municipal Code and the Specific Development No. 59 development standards in conjunction with the proposed conditions and building requirements. 6. The design of improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project. There are no easements that would affect the use or development of this site. Approval of Vesting Tentative Tract Map No. 2008-04 (County Map No. 17242) will not create conflicts with the easements necessary for public access through the property, as no such easements currently exist. Public access will be allowed to the site as this development, as an urban project concept, encourages pedestrian and public activity. E. Applicant is seeking Conditional Use Permit No. 2008-34 to allow the project. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings. Will the proposed use provide a service or facility, which will contribute to the general welfare of the neighborhood or community? The proposed conditional use permit to allow the construction of a residential high rise will add to the mixture of housing opportunities available within the city. The proposed multi-family residential use (City Place Sky Lofts) within the City Place development will provide a service to the community by providing for-sale, high-quality residential housing stock that will enhance the property values of the surrounding neighborhoods. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. Resolution No. 2009-XXX 75A-2 ~ 0 Page 3 of 6 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety or general welfare of the persons residing or working in the vicinity? The approval of the conditional use permit will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. Environmental Impact Report 2007-02 has been prepared for the proposed project, identifying potential impacts, over-riding considerations and mitigation measures aimed at reducing any environmental impact associated with this project. The addition of persons within a two acre vacant portion of north Main Street and the City Place development will assist in promoting the economic viability and enhance the livability for this area. 3. Will the proposed use adversely affect the present economic stability or future economic development of property in the surrounding area? The approval of the conditional use permit will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. Environmental Impact Report 2007-02 has been prepared for the proposed project, identifying potential impacts, over-riding considerations and mitigation measures aimed at reducing any environmental impact associated with this project. The addition of persons within a two acre vacant portion of north Main Street and the City Place development will assist in promoting the economic viability and enhance the livability for this area. 4. Will the proposed use comply with the regulations and conditions specified in the chapter of the Santa Ana Municipal Code for such use? As conditioned and the approval of Zoning Ordinance Amendment No. 2008-04, the proposed project will be in compliance with all applicable regulations and conditions imposed on high rise residential units, pursuant to Chapter 41 of the Santa Ana Municipal Code. 5. Will the proposed use affect the General Plan of the City? The proposed project will not adversely affect the General Plan. The residential high rise tower is consistent with the General Plan Land Use Element designation of District Center and the proposed amendments to Specific Development No. 59. The proposal is supported by the Land Use Element Goal: 2.0, To promote land uses which Resolution No. 2009-XXX 75A-211 Page 4 of 6 enhance the City's economic and fiscal viability; and Goal 3.0, To promote a balance of land uses to address basic community needs. Further, General Plan Land Use Element Policy 1.3 supports high-density residential development within the City's District Centers as a part of a master- planned mixed-use development. Also, Policy 1.4 promotes the maintenance and fostering of a variety of residential land uses in the city. Therefore, a residential high rise within a mixed-use setting will assist to further the goals of the District Center designation of the General Plan. F. Applicant is requesting approval of Site Plan Review No. 2004-05. Santa Ana Municipal Code Section 41-493.5 requires approval of all plans for projects within a specific development district to ensure the project is in conformity with the specific development standards. G. By prior action this date, the City Council has approved and certified the Environmental Impact Report for this proposed project. H. The Request For Council Action and all matters presented to the Council are incorporated herein by this reference as though fully set forth. Section 2. The City Council of the City of Santa Ana hereby, approves Vesting Tentative Tract Map No. 2008-04 as conditioned in Exhibit "A" attached hereto and incorporated herein. Section 3. The City Council of the City of Santa Ana hereby, approves Conditional Use Permit No. 2008-34 as conditioned in Exhibit "B" attached hereto and incorporated herein. Section 4. City Council of the City of Santa Ana hereby, approves Site Plan Review No. 2008-05. Section 5. In case of any dispute between the terms or effect of Vesting Tentative Tract Map No. 2008-04 and the terms or effect of Amendment to Development Agreement No. 2004-01, said Development Agreement shall prevail. ADOPTED this day of , 2009. Miguel A. Pulido Mayor Resolution No. 2009-XXX 75A-2 ~ 2 Page 5 of 6 APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2009- to be the original resolution adopted by the City Council of the City of Santa Ana on . Date: Clerk of the Council City of Santa Ana Resolution No. 2009-XXX 75A-213 Page 6 of 6 Conditions for Approval for Vesting Tentative Tract Map No. 2008-04 Vesting Tentative Tract Map No. 2008-04 is approved subject to compliance to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in revocation of the vesting tentative tract map. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP 06-46). 2. The Covenants, Conditions and Restrictions (CC&Rs) must be approved by the Planning Manager prior to the issuance of any building permit. Such CC&Rs must contain at a minimum, the following: a. Project Maintenance. b. Standards shall be established for the exterior maintenance of each unit within the community. c. Graffiti removal will be required within 48 hours. d. Assignment of repair of perimeter walls will be specified in the CC&Rs in the event of damage. e. CC&Rs are to be in effect in perpetuity. f. Any proposed modifications to the CC&Rs will require approval by the City of Santa Ana. g. The use of professional management to ensure a quality operation and maintenance. 3. A final map must be approved and recorded prior to issuance of building permits. 4. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. EXHIBIT "A" Page 1 of 3 75A-214 5. Two copies of the recorded final map and CC&Rs shall be submitted each to the Planning Division, Fire Department, Building Division and Public Works Agency within 10 days of recordation. 6. Prior to issuance of building permits, the interior building amenities shall be submitted for review by the Planning Division and shall be at the same or higher level of quality as the Nexus residential tower (CUP 2005-10) and City Place live-work lofts (CUP 2004-28). The amenity package submitted for review shall include but not be limited to flooring, staircase railings, doors and hardware, kitchen appliances and cabinetry, dual bowl sinks and fixtures, the walls, tiled shower enclosures and kitchen countertops of stone the or stone slab, or their equivalent. At minimum they will include a product line for the appliances requiring the equivalent or higher grade, all cabinets be of a stain grade, the use of smooth wall and ceiling interior drywall finish and washers and dryers in each residential unit. 7. Provide for lighting and landscape maintenance. The lighting plan and design will be reviewed by the Planning Division during the lighting plan check phase. 8. Development, operational and maintenance standards shall be established for the number, style and location of all outdoor fireplace, seating, benches, tables, chairs, lounges and similar furniture. These items shall be reviewed and approved when the landscapes are submitted into plan check. 9. Common area amenities shall comply with the following: a. Pursuant to the Plan (Exhibit 3), plazas, drive aisles, pedestrian walkways and common area amenities for the project, shall be completely installed prior to the issuance of a certificate of occupancy for the project. 10. Pedestrian walkways shall be provided to establish pedestrian connectivity throughout the project site and to existing pedestrian connection points as shown on the Plan (Exhibit 3). The amenities to be provided along this pathway shall include decorative concrete, accent lighting, landscape planters with vertical landscape as shown on the Landscape Plan and two fountains. These improvements must be completed prior to occupancy of the first unit. 11. Benches and pedestrian seating shall be made of a durable material such as concrete or painted iron and be designed to EXHIBIT "A" Page 2 of 3 75A-215 minimize effects from vandalism, skateboarding and weather. 12. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other plaza furnishings. 13. All street furniture surfaces, pedestrian-level walls and amenities shall incorporate graffiti resistant coatings. 14. The podium level shall include amenities such as informal modern outdoor furniture and seating areas, decorative pavers, landscape trees and plant material. 15. Prior to issuance of building permits, the exterior building amenities, materials and finishes shall be submitted for review and approval by the Planning Division. 16. The podium level amenity deck shall be completely installed prior to the issuance of any certificate of occupancy. EXHIBIT "A" Page 3 of 3 75A-216 Conditions for Approval for Conditional Use Permit No 2008-34 Conditional Use Permit No. 2008-34 is approved subject to compliance to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below rior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in revocation of the conditional use permit. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP 06-46). 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. The buildings shall be of constructed with quality and durable exterior materials as shown on the architectural plans, material boards and material specifications submitted for this project. 4. Prior to issuance of building permits, the interior building amenities shall be submitted for review by the Planning Division and shall be at the same or higher level of quality as the Nexus residential tower (CUP 2005-10) and City Place live-work lofts (CUP 2004-28). The amenity package submitted for review shall include but not be limited to flooring, staircase railings, doors and hardware, kitchen appliances and cabinetry, dual bowl sinks and fixtures, the walls, tiled shower enclosures and kitchen countertops of stone the or stone slab, or their equivalent. At minimum they will include a product line for the appliances requiring the equivalent or higher grade, all cabinets be of a stain grade, the use of smooth wall and ceiling interior drywall finish and washers and dryers in each residential unit. 5. Interior floor to finished ceiling heights will be a minimum of nine feet on the podium level through level 25 and a minimum of 12 feet EXHIBIT "B" Page 1 of 2 75A-217 on levels 26 and 27. For the stacked townhomes, interior floor to finished ceiling heights shall be a minimum of nine feet. 6. Covenants, Conditions, and Restrictions (CC&Rs) must be approved by the Planning Manager prior to the issuance of any building permit. Such CC&Rs must contain at a minimum, the following: a. Project maintenance. b. Standards shall be established for the exterior maintenance of each unit within the community. c. Graffiti removal will be required within 48 hours. d. Assignment of repair of perimeter walls will be specified in the CC&Rs in the event of damage. e. CC&Rs are to be in effect in perpetuity. f. Any proposed modifications to the CC&Rs will require approval by the City of Santa Ana. g. The use of professional management to ensure a quality operation and maintenance. 7. CC&Rs shall include residential occupancy standards similar to Phase I of the City Place development (CUP04-28). 8. A tentative tract map shall be approved prior to the applicant exercising the rights conferred by this conditional use permit. 9. This conditional use permit shall be null and void and of no force and effect unless and until the City Council, in the exercise of its sole discretion, approves a tentative tract map for this project. 10. Prior to issuance of building permits, the exterior building amenities, materials and finishes shall be submitted for review and approval by the Planning Division. EXHIBIT "B" Page 2 of 2 75A-218 REQUEST FOR COUNCIL ACTION CITY COUNCIL. MEETING DATE: MARCH 2, 2009 TITLE: PUBLIC HEARING - ORDINANCE CREATING NEW APPLICATION PROCESSING FEE FOR MODIFICATION OF HISTORIC STRUCTURES AND RESOLUTION TO ESTABLISH AND UPDATE VARIOUS DEVELOPMENT PROCESSING FEE AMOUNTS /_~ sue, CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15f Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO ~~~-/( C~~ FILE NUMBER 1. Adopt an ordinance creating a new application processing fee for exterior modification of historic structures. 2. Adopt a resolution establishing and updating various development processing fee amounts. DISCUSSION On May 7, 2007, City Council approved an agreement with MGT of America, Inc. (MGT) for a study of the City's General Fund development processing fees in order to analyze the cost of providing these City services (Exhibit 1). The consultant's analysis was prepared in accordance with generally accepted accounting principles (GAAP) as recognized by the Governmental Accounting Standards Board (GASB) The study included an analysis of staff time spent on the various development applications, as well as a thorough analysis of all indirect costs of City agencies in the support of these services. Such an analysis is important because it establishes a baseline from which to update the development processing fee schedule. State law authorizes cities to recover costs associated with processing development applications. Historically, building permit fees in California cities were established based on the valuation of the construction project. More recently, however, numerous court decisions indicate that valuation based fees do not satisfy the state requirement to show the connection, or nexus, between the fee amount and project value. Consequently, cities throughout the state continue to move away from this methodology in favor of one based on a comprehensive analysis of actual costs. The MGT analysis follows this more rigorous methodology. 75B-1 Ordinance for New Application Processing Fee and Resolution for Development Processing Fees March 2, 2009 Page 2 The methodology analyzes the average volume of development and permit applications during a year. A separate evaluation analyzed the time and motion involved in processing the various project types. The third and final analysis calculated the average overhead and indirect expenses required to provide these city services. The consultants utilized 2006- 07 FY general fund salary and operation expenditures for the agencies, or portions thereof, involved in processing development applications and permits. Budget allocations for other agencies, such as City Manager's Office, Clerk of the Council, City Attorney's Office, and Personnel Services were provided to spread these support costs on a pro-rata basis over the various departmental functions within the scope of the study. The basis for the support allocations varied, with some based on full time positions (FTEs), others on percent of budget allocation, and some based on percent of work product generated, such as number of pay checks issued, number of Requests for Council Actions agendized, or number of purchase orders processed. Additionally, as noted above appropriate staff provided times and volume of work for each specific service in the development process. The consultants identified from these data the actual cost of providing each of the various services. The methodology has been used by MGT in dozens of similar fee studies. The analysis found that the majority of the City's development processing fees do not recover the costs of providing the service. This was expected for two reasons: it had been a number of years since the fees were last updated; and, the new methodology for building fees is a better gauge of actual costs. As a byproduct the fee study found a number of instances where the current fees collect more than the cost of providing the related service. In these situations, the fees will be lowered accordingly. The policy question is how much of the City's costs should be recovered and who should pay for them. The MGT analysis provides a solid assessment of these actual costs. The study shows that approximately 21% of Planning, 48% of Building and 48% of Engineering costs are currently recovered. Therefore, the remainder costs are at present covered by the general taxpayer. 75B-2 Ordinance for New Application Processing Fee and Resolution for Development Processing Fees March 2, 2009 Page 3 It is believed that the fairest approach to setting fees is to ask those who benefit directly from the development processing services to pay for their cost. Consequently, it is recommended that the City Council establish a policy of full cost recovery. However, there are several recommended exceptions that deal with appeal fees, permits for solar projects and certain fees that are superseded by State law. It is recommended that a flat appeal fee of $350 be established for appellants who are not associated with the project proponent. Also, the City established an incentive program in 2008 to encourage the implementation of solar energy projects. This program included fee waivers for such projects. And, three transportation fees administered by the Public Works Agency are superseded by the State. A complete copy of the consultant's report, which includes the full cost allocation plan, is available in the Office of the Clerk of the Council. FISCAL IMPACT It is estimated that the proposed changes to the fee schedule will generate an additional $2.9 million in general fund revenue annually, based on full cost recovery, an estimate of future volumes and the average volume of work processed over the past five years. APPROVED AS TO FUNDS AND ACCOUNTS: J M. Trevino Executive Director Planning and Building cy ~}~-- ~~ ~,-- ~~~" James G. Ross Executive Director Public Works Agency SB:rb sb\rfca's\2008-09\Resolution Amending Dev Proc Fees i Francisco Gutierrez Executive Director Finance & Management Services Agency~~ 75B-3 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTIONS 30-6 AND 30-8 OF THE SANTA ANA MUNICIPAL CODE AUTHORIZING IMPOSITION OF FEES FOR AN APPLICANT SEEKING APPROVAL FOR A MAJOR EXTERIOR MODIFICATION TO A HISTORIC STRUCTURE THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Since 2003, the City has required review and approval of any person's request to make substantial physical exterior modifications to a structure listed on the City's list of historic resources. B. In some cases, the City's review of such applications have involved extensive research, use of outside historic experts, and multiple public hearings, including public hearings before the City Council on appeal. C. In other cases, which do not involve proposed substantial exterior modifications, the City has established procedures for administrative approval of modification requests by city staff which eliminates the need for applications, extensive review or any public hearings. D. It is appropriate for the City to impose a reasonable application processing fee on individual property owners who are seeking approval by the City to make substantial physical exterior modifications to historic structures. E. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Ordinance No. NS-XXX 7 ~ ~ _~ Page 1 of 5 Section 2. The City Council has reviewed and considered the information contained in the initial study and the negative declaration prepared with respect to this Ordinance. The City Council has, as a result of its consideration and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, a Negative Declaration adequately addresses the expected environmental impacts of this Ordinance. On the basis of this review, the City Council finds that there is no evidence from which it can be fairly argued that the project will have a significant adverse effect on the environment. The City Council hereby certifies and approves the negative declaration and directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Pursuant to Title XIV, California Code of Regulations ("CCR") § 753.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project simply relates to processing fees. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5, the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3. Section 30-6 of the Santa Ana Municipal Code is hereby amended to provide an application processing fee to individuals seeking to make substantial physical exterior modifications to historic structures, such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 30-6. Modification of historic properties. (a) No exterior physical modifications, other than those identified by the historic resources commission for administrative approval by city staff, shall be permitted with respect to an historic structure until the historic resources commission approves such request at a duly noticed public hearing and issues a certificate of appropriateness. The historic resources commission shall issue the certificate of appropriateness upon finding that the proposed modification(s) does not substantially change the character and integrity of the historic property. The minutes of the historic resources commission meeting shall serve as the official record. (b) An application for exterior modification of a historic structure shall be accompanied, except for those subject to administrative approval by city staff pursuant to subdivision (a), by payment of an application fee set in such amounts as shall be established by resolution of the city council. Ordinance No. NS-XXX Page 2 of 5 75B-5 (tac) The building official may determine a historic property is a dangerous building. Modifications as determined necessary by the building official to correct the dangerous building shall not require a certificate of appropriateness. Modifications shall be consistent with the overall architectural design and historic character of the structure and blend in with the surrounding environment. Section 3. Section 30-8 of the Santa Ana Municipal Code is hereby amended to provide an fee to individuals seeking to appeal to City Council applications to make substantial physical exterior modifications to historic structures, such that it reads as follows (new language in bold for tracking purposes only): Sec. 30-8. Appeals from decisions of historic resources commission. (a) An appeal from a decision or requirement of the historic resources commission may be made by any interested party, individual or group. (b) Any appeal made under the terms of this section shall be made within ten (10) calendar days following the date of the decision by the historic resources commission, and shall be accompanied by payment of an appeal fee set in such amounts as shall be established by resolution of the city council. Further, such appeal period shall end at 5:00 p.m. on the tenth calendar day following such date of the decision by the historic resources commission. If such tenth calendar day ends on a Saturday, Sunday or holiday, the ten-day period shall end at 5:00 p.m. on the next regular business day. The formal action by the historic resources commission shall become effective on the day following the first regularly scheduled council meeting after the ten-day appeal period, unless the city council, in compliance with section 41-643, section 41-644 or section 41-645, holds a public hearing on the matter, then the decision of the city council will become effective on the day following the hearing and decision by the city council. (c) All appeals shall be in writing and on forms provided by the planning department and shall specify wherein there was any error of decision or requirement by the commission. Furthermore, a copy of such appeal shall be filed with the planning department and the clerk of the council. (d) Upon receipt of such appeal, the planning department shall set the matter for hearing by the council. Ordinance No. NS-XXX 75B-6 Page 3 of 5 (e) All appeals shall be heard in the same manner as prescribed for the original hearing. (f) Upon filing of an appeal, the planning department shall forward to the clerk of the council a copy of the written findings, maps, papers and exhibits upon which the decision of the historic resources commission was based. (g) The council may, after public hearing, affirm, reverse, change, or modify the original decision and may make any additional determination it shall consider appropriate within the limitations imposed by this chapter. Such decision shall be filed with the clerk of the council, and the city planning department; one (1) copy thereof shall be sent to the applicant. Section 5. 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 any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2009 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney Ordinance No. NS-XXX Page 4 of 5 75B-7 AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers 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-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX 75B-8 Page 5 of 5 bk:3/9/09 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA MODIFYING FEES FOR PROCESSING OF APPLICATIONS FOR DEVELOPMENT APPROVAL AND REPEALING IN PART RESOLUTION NO. 2008-041 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council hereby, finds, determines and declares as follows: A. The FY 2008-09 Miscellaneous Fee Schedule was established by the City Council by Resolution No. 2008-041. The Planning and Building Agency has continued to analyze the cost to administer the various programs, activities and applications for which the City charges application processing fee, and recommends certain modifications of this Resolution to adjust for increased costs to provide the programs, activities and services outlined herein. B. On May 7, 2007, City Council approved an agreement with MGT of America, Inc. ("MGT") for a study of the City's General Fund development processing fees in order to analyze the cost of providing these City services. The study included an analysis of staff time spent on the various development applications, as well as a thorough analysis of all indirect costs of City agencies in the support of these services. C. One of the major subjects of the MGT study are the fees charged for building permits. Historically, the Uniform Building Code set building permit fees in California cities and counties based on the valuation of the construction project. More recently, however, numerous court decisions, including a judgment against the County of Orange, indicate that valuation-based fees do not satisfy the state requirement to show the connection, or nexus, between the fee amount and project value. Consequently, cities throughout the state continue to move away from this methodology in favor of one based on a comprehensive analysis of actual costs. The MGT analysis follows this more rigorous methodology. D. A true and correct copy of the full MGT study has been placed on file with the Clerk of the Council for the statutory period required by Government Code § 66000, et seq. The MGT study methodology analyzes the average volume of development and permit applications during a year. A separate evaluation analyzed the time and motion of processing the various project types. The third and final analysis calculated the average overhead and indirect expenses required to provide these city services. To be conservative, the consultants utilized FY 2006-07 general fund salary and operation expenditures for the agencies, or portions thereof, involved in processing development applications and permits. Budget allocations for other agencies, such as City Manager's 75B-9 Office, Clerk of the Council, City Attorney's Office, and Personnel Services were provided to spread these support costs on a pro-rata basis over the various departmental functions within the scope of the study. E. The analysis found that the majority of the City's development processing fees do not recover the costs of providing the service. This was expected for two reasons: it had been a number of years since the fees were last updated; and, the new methodology for building fees is a better gauge of actual costs. As a byproduct the fee study found a number of instances where the current fees collect more than the cost of providing the related service. In these situations, the fees will be lowered accordingly, and to the extent that building fees are being lowered, the difference will be deposited in the City's general plan fund to pay for long-range planning activities, including preparing and implementing the general plan and covering overhead and other administrative costs of the Planning and Building Agency's long-range planning division. F. Section 200 of the City's Charter; state law, including but not limited to Article XI, section 5 of the Constitution and Government Code §§ 65943, 66014, subdivisions (a) & (b), and 66451.2; and various provisions of the Santa Ana Municipal Code authorize the imposition of the fees and charges set forth herein. The City Council further finds, determines and declares that the fees and charges set forth herein do not exceed the estimated reasonable cost of providing the service for which such fees and charges are charged. G. The Request for Council Action for this resolution dated March 2, 2009 and duly signed by the City Manager shall, by this reference, be incorporated herein, and together with this resolution and accompanying ordinance, any amendments or supplements, the materials and study on file with the Office of the Clerk of the Council, and oral and written testimony constitute the necessary findings for this action. Section 2: The modified fees and charges set forth in Exhibit 1 to this Resolution, which is incorporated herein by this reference, are hereby adopted. Each charge, fee or service charge set forth shall be levied until further resolution of this Council. Section 3: Except as set forth in section 7 of this Resolution, to the extent that any fee or charge established pursuant to City Resolution No. 2008-041 is inconsistent with the fees or charges established pursuant to this Resolution, then said Resolution No. 2008-041 is hereby repealed. Section 4: That without further action of the City Council said charges, fees and service charges shall be incorporated into the City's Miscellaneous Fee Schedule. Section 5: If any charge, fee, service charge, section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed 75B-10 and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Section 6: This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution, except that, as required by Government Code § 66017(a), the fee modifications set forth herein shall not take effect for sixty (60) days after adoption of this Resolution. Section 7: A. The following "pipeline projects" (as defined in Section 7.C., below) shall not pay the fees established by this Resolution, but rather shall be subject to the fees set forth in Resolution No. 2008-041, unless the fee established by this Resolution is lower than the fee set forth in Resolution No. 2008-041, in which case the lower fee shall be paid by these "pipeline projects." development agreement, 2. tentative tract map, 3. tentative parcel map, 4. conditional use permit, 5. variance, 6. minor exception, 7. grading permit, or 8. building permit (including "foundation only" building permit). B. The fees to be paid by a "pipeline project" shall increase annually, commencing July 1, 2009, from those fees set forth in Resolution No. 2008-041 by the increase in the Consumer Price Index-All Urban Consumers for the Los Angeles- Riverside-Orange County area, published by the United States Bureau of Labor Statistics (or substitute index chosen by the Executive Director of Planning and Building Agency should this index be discontinued), hereafter referred to as "CPI increase." However, if a fee established for non-"pipeline projects" is less than the "pipeline project's" CPI increased fee pursuant to this subsection, then only the lower fee shall be assessed and collected. To the extent this subsection is contrary to the provisions of state law or a valid development agreement adopted by this Council, this subsection shall not apply. 75B-11 C. For purposes of this Section 7, "pipeline project" shall be defined as follows: 1. "Pipeline project" shall be any project for which the City has received a "complete application," as that term is used in Government Code § 65943, within sixty (60) days of the date of Council adoption of this Resolution, and which application is approved by the City. 2. A "pipeline project" shall not lose its status throughout its processing by the City so long as (a) it is in "substantial compliance," as that term is used in Government Code § 66474.1, with the previously approved entitlement that occasioned its pipeline status, and (b) the entitlement which occasioned its pipeline status has not expired pursuant to applicable law, and the project has processed and received no subsequent entitlement. ADOPTED this day of 2009. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: NOES: Councilmembers: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: 75B-12 CERTIFICATION OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Resolution No. the City of Santa Ana on Date: Clerk of Council, do hereby attest to and certify the attached to be the original resolution adopted by the City Council of Clerk of Council City of Santa Ana 75B-13 f/~ WJ ~~ ' iii" ~,P ~ f -4 ~~ o ~~ ~ ~, .~ -r ~..6 ~ w .~ ~ ~ v Rd ~ ~' ~ d ~ ~ ~ ~ ~~ e ~, ~ ~ ~ I~1 W '~~ 0 ~', ~ ~ ~ ~ ~ ~ ~ . I ur ~~ ~ ~ v L ~~:~ V ~ v ~., A c 0 V ~ ~ ~ o c o ~ _ ~~.~~ `~ ~~~.~ ~ N o U m~ v ~ E ~ ~ ~ ~. ~ V .~ +~ -~ R `~ n U ~ v ` L ~ o VT ' N ~ ~ ~ ~a~3 3 ® ~ 3 75B-14 CA W H V w x w .~, u .~ 0 0 0 0 ~3 U c Q 0 U N a 0 Q~ a a .~ .~ a 0 C7 ~~~~o °~ C L ~ ~ V .V ~ . ~ V N ~ C ~ a ~ a ~ ~ o ~ ~ ~-v~O o~ ~~~.o ~~ ~ s ~ ~ ~~ ~ ~ > ~' _ ~ . a~~~~ s ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ t ~ ~~ s .~~ ~~ ~ ~u 0~ c~ ~~ 3 s ~ ~ u a° ~~ U ~ ~ 0 ~ c~ ~ ~ -v c c in ~ ~ 0 ~' ~ ~ o ~~.~°~ ~ u ~ ~ N~ c ~ ° , ~ ~ ~ ~ ~ ~ a 0 • ~ u ~ ' c d U ~ ~ L ~ ~ > 0~ ~ ~- p n a~ ~ ~ 0 ~ ~' . ~~~a ~~ c ~ ~ l~L~ - ~ _~ coo ~ ~s ~ ~ u~X~~ 3os n.° ~ ~~ ~ ~ ~ ~ ~ ~ ° -v ~ '3 ° ~ ~~o 3 o ~ ~ ~ ~ - ~ ~ ~ ~ L u 0 a ° ~ ~ ~ 3 ~~~~a, u 3~,~ a, V • - cn ~ N N L~ ~ C A N C a~-o ~~ - ~' .-°° =v ~- s - ~ v `~~~~~ ~..~ ~a~. 3 ~.., cL~s • uE~~~' ~ ~L-o ° u ~ f~ ~ ~ ~~ ' >. 0 ~ ~ a~~ LLo 3~ ~ bo ~ ~ a~aoo~ ~ o ~~u o •L a~ ~ ~ L ~ ° ~ ~ V ~ ~ ~ ~ ~ ~ ~ ~ C ' ~ ~ ~ C ~ ~ ~ ~ ~ o~ ~ ~~ w ~ c ~ o- v, ~ ~ 0 ~ s • ~,,, a ~ ~ 'v - L N ° ~ a ~' ~+ ~ a~~o'>a~ - ~~~ > ~ cn ~.o~o N ~ ~ `~ u ° o ~ ~ ~ O c~ •~ ~ ~ ~ o ~~a~a~> ~~~ -~ ~~~ ~ L ~ ° ~ ~ ~ [ s ~° o .~ N ~~ u ` ~ ~ ~ QQ a~ ~ ~ ~ ~~~ u >.a~ c~' ~ o ~.~ ~ ~ -v mm~ ~~~ ~ ~ ~ a~ a ~ U~L~~~ ~oa~ ~ a ~.~ a~~ ~ ~~ ~ t ~ s a~ s -o ~ u~~ ~ cC L .~ ~ ~ o +~ ~ cd .~ ~ t ~ 75B-15 U .~ L (~ a~ 0 .~ 0 a 0 ~U s 0 s 3 0 'u a L 0 0 'u 0 E N a 0 .~ 'c L a 0 c c~ cC t L t t c .~ 0 0 .~ .~ 0 u 0 a 0 .~ 0 0 s 0 u .L 0 0 s 0 .? bA .~ V s s 3 u .~ ~~ vi 0 .~ L L 0 L C -c a~ E 0 0 0 u .~? 0 a L 0 0 r ~- _ C7 r ^ta L.L v~ N u ~7 L s 0 0 L 0 L 0 N .~ a 0 u a~ 0 L ~ N N L ~ N L ~ ~ C ._ ~ N ~ ~ ~ N ~ L ~ ~ .V ~ ~ ~ ~ c 0 . .-. ~ 0 o ~ u ~ a ~ c ~ N ~ ~ L ~ ;~ w ~ ~ c ~ ~ a ~' p ~ ~ ~ ~ c o ~ ~ ~ o > ~ s c o _ ~ 0 ~ ~ ~ 3 ~ ~ a a~ ~ ~ p o c p> c c~ o ~ ~ L p a~ s ~ c ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ p ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ a~ ~ ~ ~ a ~° c ~ 0 s ~ L . ~ U ~ ~ ~ ~ (n ~ ~ ~ ~ ~ . ~ ~•? ~.c ~ p p ~ ~' ~ ~ ~ u ~ ~; ~ ~ ~ a ~, ~ c~ a~ u ~ ~ ~ ~ ~ ~ ~' c ~ s cC L U C ~ L ~' L ~ ~ ~ a~ 3 ~ o a a~ .~' 0 ~ 0 ~ j ' `~ ~ ~ > v; u ~~ ~ ~ 0? j a 0 0 L _ ~ ~~ ~ 3 a~ . o a~ ~~ - ~ ~ 3 ~ ~ U ~~ ~ ~ ~~ L .~ L ~ N ~ ul7 aoa ~ ~ a~ N ~ ~p~ ~a 0 c~ ~ ~ ~ -p p ~ 0 L ~ N ~ ~ cd ~ U V ~~ Vi L ~ 0 u 0 ~ ~ ~ -~ ~ ~ Q "D cd vi p U C ~ -v ~ + o ~, a ,., a ~ L ~ o c ~ _ ~ cd ~, ~ ~ ~ ~ ~ ~ ~ ~ " ~ 0 `~ u ~ c N o -o ~ ~ N N ~p -~a L~ c L C d (d ~ ~ ~ L ~ ~ (/1 > ' V1 ~ ~ ccn aL ~ ~ ~ ~ •~~ '~p ~ ~ a a 0 u~ vi ~ ~ N ~ ~ ~ ~ ~ ~ ~ ~ 0 0 L ~ c~ ~. D ~ U p aXi a . . ~ 0 , ~ u t ~ ~~ s a ~ ~ 75B-16 c~ `~ ~, r_~ N W to ~; ~ u ~ > ~ ~ ~ ~ cn C ~ ~ U o U ~ N ~ ~ ~ ~ 0'°'~0 3 ~s.3 a~ ~' o o o~,a ao ~ s ~ ~ c o~ 0 0 ~ ~ a !~ p ~ ~ ~s ~ ~~3 ° ~ ~ ~ ~ ~ ~ ~~ L ~ N~ ~ ~, V ~ N cd ~ ~ ~ ~ N o O V 0 N ~ C . ~ 7 L 0 cd ~ ~ - ~ ~ C N t ~ ~ ~ a ~ ~ ~U a ~ ~ o ~ ~ ~ 3 ~ u 0 ~ a~ o ~ o ~ a, a, ~ ~ ~L ~ ~ ~~ ~ ~ .u O ~ L . 0 ~ ~ a ~ ~ 3 , ~ 0 ~ u ~ 0 , ;~ ~ _ ~ ~ o ~ ~ ~ a~ a c ~ ~ ~ ~ -v ~ a ~ ~° u ~ ~ > ~ u ~ L ~ ~ c ~ a ~ ~ u u ~ v~ ~ ~ ~ ~ ~ ~ ~ ~ ~ _ -v ~ > . c ~ u 0~ p ~ ~ L . c a~ c ~ ~ ~ L ~ s ~ ~ ~ ~ ~ ~ '- ~ ~ ~, ~ O p ° ~ 3 t u a~ ~ ~ C L ~ ~ p ~' ~ N ~os~ ~ ~ .ou-~ u ~ a ~~,~ a o ~ ~ ~ u ~ ~ p +~ N N L > ~ N ~ 0 0 L •~ [ ~ ~~~ ~ a~ c ~' cd ~ v, ~ -p ~ -p 0 ~ ~ ~ ~ t ~ ~ ~ ~ L ~ o ~ ~ ~'0 ~' ~ o o ~ p ~ a ~ t ~ ~ ~ ~ UQa~~ ~ c~ ~, r_~ t~ 75B-17 I ~ ~ U „, C „, ~ U //~ ^, N W L ~ C C ~ ~ L Q L N U o ~ ° ._ N c a~ ~ L X ~ ~ N ~ ~ ~ ~ ~ W (~ N ~ ~ o ~ ~ a ~ o N N U c~ ~ N ~ o ~ ~ °o oN ~N o ~ ~ ~ ~ 0 U Q •L VJ t N ~ ~ ii m~~ II V U 0 U (a .~ U ~~ ~ ~- ~ r '> J ~_ ~ ~ O Q~ _~,~ _~~~ 'L ~ ~ ~ L_ U Q c~ (6 .~ ~' ~ C .> ~ a--~ ~ U ~ ~~~ ~~~ ~ ~ ~ L O J .~ C 75B-18 ° ~ °'~ ~~ 0 ~ ~ 3 ~- o a, ~ ~ ~~ ~ ~~~ ~~' ~ ' ~a~ > a~ •u~ ~ s L a ~ ~ ~ `~ o a~o ~. ~ ~ a~~ ~ ~~ ~a a~ L ~ ~ L ~ . ~ cd N ~ ~ C V ~ > '0 cd ~ ._ N L '~ L O '~ C 0 ~ vii C 0 a~~?` Cc L -p ~' ~C ~ os ~ ~ ~ ~ L ~ (~ . •-,,c-v ' cna (/1 ~ L ~ . ~ ~ ~ ~ ~ ~ V C ~ ~ ~ C ~~ cd t 0 ~ V u ~ +~ C L s ~ cd of V ~ p L ~ ~ i cn 0 ~ ~ V ~ u ~ > 0 ~ L . ~ ~J 0 ~ ~ ~ ~ V ~ ~ ~ N = ~d~ 0 N ~ ~~ ~s ~ ~ ~ ~ ~ ~ O ~ 0 ~ ~ N os ~~ `~ ~ , ~ ^~ , ~ '> aa~ .~ O ~ ~ . ~ 0 ~ a~ u u ~ ~ ~.s p u ~ ~ L ~~ ~ ~~ C V O L N ~ 'O .L ~ ~ ~ ~ ~_ `~ V C N a ~ 0 ~ ~ •- o~'~Z ._ ~L~ N ~ ass ~ V v, - ~ L 0 N z ~ 0 Lo °-o'> >. su a ~ ~ ~ ~ ~ • W ~ .~ 0 ~ 4~t 0 ~ ° ~~~ ~~~ ~ ~ ~ N ~ ~ ~ ~ ~ C C ~ ~ 0 ~ . ~ ~ 0 ~ ~ ~ L ~ ~ ~ ~ ~ V ~ N td V N ~, ~ . N L L L ~ ~ r L V1 fd ~ ~ ~ ®~, aooa~ a~~o o ~ tug ~ ~~ L ' L ~,,~ _ ~ ~' o u V ~ - L O C fd L >~~~~ ~~~ r ~_ ~ to C "0 C ~ 0 ~ _~ ~' ~ ~ M S ~ ~ ~ 0 s ~, ~ ~ ~ u Oa N ~s ~ ~ 0 v, N ~ ;~ N 0 a~ _ ~ ~ 0 I~ ~~ o~ ~~ ~s ~ ~' N '~ ~~ ~~ a~ ~ •~ L N vii N ~ oL c ~ . ~ ~ o ~~U L ~ ~ a ~ ~' ~ ~ o s .~' N u ~ ~ +~ c ,}o~ 0 ~ ~ ~ ~,s-o o~~ o ~ ^~ 0 0\°\° +~' N N N ~ ~ ~' ~ N 0 O ~ ~'ao a= a~ ~ •~ ~ ~ C ~~a a -d ~ ~ ~ ~ ~ 0 c~ 0 ~ t ~ ~' ~ ~ ~ _ ~ c ~, o ~ X ~' ~ w ~ L .r r W ca v s. Q c~ ~ ~ v Q ~- -E-+ L t/1 4- 0 .}.r U L ~ 4~ O H O ~ N ~~ ~ ~ O ~ ~ ~N O U ++ ~"' o a o o ~ ~ ~ N ~ ~ ~ z ~~ ~ m ~ m ~- ~o ~ w ~ ~ ~ ~ ~ ~ i O ~ 0 ~ u ~ ~ N (~ V ~ ~ ~ ~ m a a o ~ O ~0 N O ~ m N ~ v ,~ v -~ oNp ~ r ~ NT ~! ~ r `0 N m V~ ~~/~ ~ N ~ ~ ~ err M ~ ~ ~ ~ ~ ~ ~ ~ ~ 0o O o~ ~ d- ° o 0 ~, ~ V f d n ~ N ~ ~* u1 m :. ,_ .o .~ ~ ~ ~ ,, V 0 ~ '~ _ v o '` 0 v o '~ = ~ ~ w .: ~ ? ~ _ , `~ o `^ E ~ ~ . ~ 0 '0 ~ ~ ~ v C ~ .~ ~ amp l~ 75B-19 ,0 .j 0 ~4..i v 0 V s 0 .~ v 0 U ~ N b=.0 ~ O L •- N 0 m ~O ~ ~ L ~ ~ Q ~ ~0 ~ ~ ~ ~U ~ ,~ ~ 0 0~~'0 ac ~ C ~ ~ c~ f~ '- ~ 0~ ~, L ~} U o N ~, a ~"~ o ~ ~ a 0 ~ ; ~ ~ ~0~ L ~~ ~~;Lo ~ ~ ~ ~, cn ~ C ~ ~ > 0 t N ~ U W~L~ c ~ .~ ~ r..- ~~~a~ '; L L ~ N ~ ~ ~ ~ ~ Q ~ ~ ~ ~ C a~~~'~ ~, L c a~~~~ Ls c~ a~ ~ ~ ~ c~ ~ L C c`~ a`~ ~L~~ ~ ~~~ o~s~ ~s~~ cd ~ ~~ ~oc~ o L~ ~,ss c a~ ~' ' +~ ~~~o N ~ vi ~ 0 u 0 N ~ L ~' ~La~~ ~~ a +~ ~ o aq ~ N ~ a~ ~.c cu ~~ 3 ~ a ~ 0 ~ ~ 0~~''L ~~La~ ~+ ~ 0 ~ ~ ~ ~~ ~ ~ X p ~w ~ u_~ X ~ L ~ ~ ~ c ~ > ~ ~30~ ~ ~ ~ cn ~, r_~ t~ .r ... .... X W H H ~_ Q ~ ~ C""'0~ ~ ~ •~ Q ~ ~- u O ~ 4- Q N ~ O ~ ~ ~+- u 4~ p 0 s- u' O ~ ~ ~ N ~ ~ ~ ~ ~.r U 0 0 0 ~ 0~ N N ~ ~ ~ ~ b ~ N O N ~ v ~ ~ °°o~ ~ ~ r MM W ~M n v N M M M ~ ~ ~ o o o 0 _ N ~ ~ O ~0 v ~ ~ N N M ~ ~ ~ ~ ~ ~ ~ O m ~ N ~ ~ ~ lf1 In O r lf~ O m ~J} ~ ~ ~ ~ r' N ~ ~ Q1 N L ~ ~ -~ ~, j '~ ~ N ~ -~ U1 ~ d m V1 ~r ~ ~ C .0 .~ ~ ~ , '~ ~ ' 'Q 0 = C C ~ ~ '~ ~ 0 .~ ~ C W ~ .. U .~ +~ .~ ~ ~ ,~ ~ 0 ~ C ~ C ~ 0 -~ c ~ v C C - > c~ a mO l~ 00 0~ =c +~~ ~~ p o ~ ~ a~ 00 N - L ~ ~ ~ N ~ ~, 3 ~ ~ s ~ s ~ ~' 0 ~ ~ ~ ~ ~ ~ ~~ ~ N ~ ~ ~ u ._ ~ N 0 ~ 0 ~ v, ~ a 0 b~.0 ~ ~ N ~ ~ ~ ~ s ~ •~ ~ ~ p ~ ~ > ~_ L 0 N cC oa ~L°- ~ ~1 ~ ~ L •~ 0 ~ ~ O N ~ N N cd cn L ~ ~ s L ~' ~ ~' 0 ~ ~ ~ ~3 `~ u a~ ~ a, ~ ~~ ~~~ 0 ~ ~ L v~ ~ ; C ~ ~ ~ ~ 0 ~ ~, ~ _ -~ ~ ~ '0 L ~ ~ u_ C ~ ~ •~ ~ O H4 L ~ ~ N ~ s L 0 N ~ ~ ran ~ 3 L o o~ a,o~ ~ ~ ~ ~ ~L 0 ~~ W W ~ 0 ~ ~ ~ ~~ N v_i 0 u ~ ~ ~ u c ~ ~ ~ 0 ~ ~ ~ ~ ~ ~ ~ 0 +~ V ~ 0 u o\° ~ ~ .~ N 0 ~ +~-' ~ a ~ O ~ ~ 0 0 ~ ~ ~ ~ N ~ d ~ ~ ~ •C 0 ~ ~ ~ ~ ~ ~ ~ ~ ~ N ~ 0 d ~ ~ ~ ~ > 0 0 ~ 0~ ~ ~'c ~ ~ ~ N ~ 0 3 ~ °~' a~ 0 N >. c ~ -v c ~ ~ ~° ~3~0 ~~'o u ~ ~ au ~ v~ ~' a ~ ~ •- cn ~. _ c =cam ~~a ~~ ~~c~ +~ ~, N ~ N u ~ N u ~ u C saL ~Lo w ~ ~ ~ ~ ~ 75B-20 ~, r ~_ ~ ~/ L o ~; a .~ L ~ '~ o~ ~ N ~ ~ ~ ~ N ~' ~ ~ 0 ~~ oa a°o L . ~o ,} a o ~ c .o ~ o L ~ > ~o s ~ ~ ~ ~o C ~ ~ ~ a~ moo' ~~ ~c L .L 0 -p ao a~ ~~ ~o U .~ a~ s~ ~~ Q ~ ~ .~ a~ c c ~ ~ c ~ C `~ ~~ a~ ~ ~ `~ a ~ N L N rd t ~ ~' ~ °' ~a 3~ a .~ a~ ~ ~ ~ ~ u X 0 w a ... .. ~o X W H ~ ~ ~ ~ Q Q ~ 41 +~ ~ ~ ~ cr> ~ ~ 0 ~ ~ ~ +~ ~ .... Ll. U s. O O N O O N v ~, v v ~' ~ v v ~ I~ 00 M r ~M~ ~; ~ m ° m M N~~ ~'' 00 ~' 0 ~ ~ lft ~ 0 0 0 ° 0 o r 0 o r 00 o~ ~ O ~ v r-- 4~ 0 ~ ~ f ~ ~ ~ I~ ° ~ o N d I~ ~ • ~ ~ ~ m ~_ ~ ~ V ~ ~} n N ~ ~ ~ 0~ Lf1 N L(1 N ~ cry ~ .,,,, O m oo N ~ ~, v ~ n vi o d' ° ~ v ~ ~ m ~ ~ v ~ ~ C ~ b ~. ~~ v ~ v~ V ~ ~ N ~ ~ mood= = ~ m ~ m ^~ ~ ~ ~ ~ n ~ ~ v v ~ N ~° ~0 d1 N o~ ,I~^ N}, m lf~ w W '~ V ~ N ~ V o ~ {^' m ~ 1 o v ~ ~ °; V ~, . c 0 .~ ~~ 0 .~ _ ~ .~ ^ ~ 0 ~ 0 , v c = ,j , ~ ~ ~" ~ ~ w . i ro ? ~ ~ +~ v ~ ~ ~ ~ ~ ~ c o ~ -o c ~ v C c - > c~ a m ~ l7 75B-21 u~ ~ u ~~ ~ ~ ~v ~o ~3 ~v •C L a ~ ~ ~ a~ ~ ~ .N ~, c a~ ~ N c ~~ +~ ._ ~ ~° ~3 0 ~ ~ ~ N ~ ' ~~ p ~ 3 ° ~ ~ ~ 3 t7 ~ a ~ ~ a ~ a ~o - a ~ o . ~ ~ a ~ ~ ~ ~ ~, ~ ~ `~ ~ v ~ ~ ~ ~ ~ a ~ ~ ~° ~ -~v v ~ ~ .~ `~ 0 ~a = •~o 0 p ~ o ~ N ~ .o v a > ~ aQ ~ o ~ ~ ~ ~ L bA L a ~ ~; ~3 3 c~ ~~ ~ ~ ~ `~ ~ ~ u ~ ~ ~~ v o p c ~ `~ ~ ~ ~ ~ o ~ ~ .; oo 3 o to uv ~ ~a ~ ~~ ~~~' ~~ ~ ~ .V ~ ~~ ~~ ~ ~ p ~ c v. ~ ~•- ~ v ~ ~ ~ .N v 00 0~ E ~ v ~ ~ ~ ~ ~ ~ ~ ~ ~ .N ~ ~ o ~ ~ ~ ~~ °0 H o~ ~~ m a ,~ -v ~ p '~ ' ~ ~ ~ Q ~ .U o C v ,,~ ~~ s ~, a~ : ~, a~ ~ .~ ~ ~ 0 N ~..~o 0 a o ~ ~ ~ ~ u ~ ~~ cd ~ ~ ~ ~ ~ ass ~~ a ~~ o a~ o ~~ ~ o ~~ ~ ~ ~ ~ L~~ ~ ~~ ~s ~ 0~ Va p~ ~ ~' ~ ~ ~ ~ ~ ~ v~ L ~ ° , ~ ~ o~° a ~ ~, r_~ t~ O ~ ~ ~ ~ ~ ~ ~ cC ~ L o V ~ c~c ~ L Vf L ~ goo ~ .a ~ ~ C L ~ ~ ~ ~ ~ ~ u ~ .~ ~ `~ a ~ ~ c t ~ p l7 ~ bA u o ~ ~ ~~~ ~ ~ ~c~ a~ ~ ~ ~~v ~~u ~ c o0o cN ~ ~ ~'~~ ~ ~ ~ L o ~ au u a '+~ ~ ~ > ~ ~ c~ L P cd . 0 ~~ ~' _ ~ c~ ~ ~ L c L p ~ s ~ L S O N c o ~ ._ ~s ~ ~ a~ ~ ~ ~, ~ c~ c a p ~ u .~ u ~' - ~ c~~' 0 ~ ~ N `~ ~ s~ ~' c ~ _~ c~ ~ s ~+ L N ~~~ s ~ ~ ~ a3 ~ a~ o-v~ ~ ~ ; ~ ~ ~ o a ~ ~ ~ ~.~~, ~ ~ ~ ?~ ~ ~+ = V o cC V 0 'U 0 s Boa aq ~ ~ ~ p ~ ~ ~ 0 ~ ~ ~ ~ ~ ~ ~ ~ ~ cn ~ 0 0 ~ ~ o ~ ~ c ~>.~ ~ L 0 ~ ~ ~ ~ ~, a 'v ~+ w~~ ~ ~ ~ ~, eau ~ ~~ c ~ _ c~ ~ 0 ~~~ ~ 7 ~ ~ L ~ 'L N cUC '~ s ~.., ~ '~ ~ ~ ~ ~~'~~ ~ ~ ~ ~+0~ ~' 0 ~a ~ ~+ ~ cd ~I ~ ~ ~ L N L o ~ u ~ ~ V ~ ~ ~ N ~ "0 ~ ._ _ ~ ~ ~ L ~ ~c~ ~a• ~ a L~~ ~~ • ' '~ ~ ~ ~ U ~ ~ ~ c~~•~ ,, ~ a~ a3 ~ ~ L ~ ~ ~ ~ ~ L ~ ~ ~ ~° ~ ~3 ~ ~3~ ~.~ o a~ +~ u ~ ~~L~ ~' E t ~ ~ c ~ ~~ x ~ _ ~ i ~ ~ ~~ ~ ~ L ~ t •' ~ ~ N L ~ V ~ +~ c o c~ ~, ~ ~„~ ~ 0 ~ L N , ~ ~ ~ cd cn ~ L b.0 cn cC ~ C C ~ ~ ~ L ~~~ a~~~, o ~~ ~o ~ ~~ ~a,o ~a ~c a~ = a o aoL a~~ o~ ~,a _~ ~o-c 0 ~ ° ~ c •~ • ~ s a as ~ ~ o ~ 3 ~ ~ O ~ ~ ~+ ss ~ ~ ~ '0 vi V O ~ ~' o ~ cd V ~ V V ~ • U L V ~_' cd 3 ~ u V ~ cn ~ ~ > ~ cd ~ N -v aq ~ L ~ ~ ~ ~ V ~ ~ al ~ a - ~ ~ ~~ o _ p~ N V a~, No ~ ~ ~ ~~ ~ ~._ ~ ~ uo~o v ~~ N ~ ~ o ~ V ~ u ~ u ~, N ~ ~ ~ o ~ 0 u ~ ~ ~ ~ ~ v, ~, ~ ~ c L c d~ ~~ `~ 3 Lu ~`~~~ ~~~- ' ~ ~ ~ ~ ~ ~~ ~ ~o ~ ' N•- ~ c c a a~ ~ L ~ ~ ~ •~- , ~ a ~ ~ ~ °~~~ ~ ~~ -ua a• ~~ a ~ o= ~~a ~~u ~~c ,, -vim , ~~> ~ ~ L a ~~ cd ~ ~ ~~ ~ o c ,~ c ~s~ ~' v °' ~~~ ~° °• ~ ~~~ N ~ ~ ~ °~ c -vc o .~a~~ c ~~ ~°' ~~ o ~v ~~ ~ ~ u c ~ ~ ~~ ~ a~ ~c. ~~ ~ arc o ~~ ~~ ~, c~ ~~~ .° ~ ~ a~ o L~ v~ ~ 3 ._p _ ~a~ ~~ ~~ ~~o~ ~N~ ~ ~ V~ ~~ ~~~ L oa~ cn L ~~ ~ cn ~~ ~+ L vi ~,-~a~ ~ a~3 ~ ~ L ~, N L~ N o ~~ S ~ ~0~ 0 ~ ~ p ~, ~ ~ p 0 ~ ~ .~, p ~ ~ o ~ ~ •, ~ ~ ~n ~ u L ua a~ ~~ ~' ~ ~ ~U?~ p ~~ c~ u ~ L 0 o ~ . c> (~ ~ ~ ~ - aI ass ~ ~ ~._ ~ a~3 ao 3 ~;~ ~~o~ ~ ~~~ ~ ~ ~ ~~ ~ ~ ~~' .~'L~ ~~ >. ~•~ ~ ~ a ' `~ ~ U 0 u ~ U >a ° ~c z ~ .~ ~ ° uU o ~ ~- ~ f ~ L ~ ~ ~ ~ ° ~L~. ~ ~ + ~ 3 v o ~ d a~ .~ ~ c •; ~ ~ u ~ ~ ~' N ~ ~ t 0 s ~ ~ ~ ~' N ~ ~ ~ a~ +~ G ~ s V L~ ~ ~ ~ c~ +~ ~ ~ L ~ ~ c ~ -v ._ ~ ~ ~ o ~ ~ o ~ ~ ~, ~ ~ •c _ ~ 0 ~ ~ a ~ o N p •~ 3 - nj M ~ L ~ . 'v -p ~ ~ Lea ~u~ ~~ ~u ~~ ~~L~ '3~0~ L~ °' ~ ~' ~~•~ ~ ~ ~L ~~ ,_ . 'ate ~~ ~~ ~'~~~ , ~ acs ~ s~X c a i ~~-~ ~~ a~ ua~,~ a~.= ~~~ ~ `~ ~, _~ t~ 75B-22 ~ ~ C ~ ~ (/1 ~ N N ~ ~ ~ ~ _ (0 O ~ ' ~ 0 0 0 ~ O ~ ~ ~ O O O ~ ~~ ~ a ~ ~ r r r O r Q ~ L ~ O ~ Q 0~ Q1 ~ +., ~ 0 0 o O o 0 0 0 ~ ~ 00 O N r 0 f~ lf) O ~ ~ 00 00 O I~ f~ O tD U • ~ ~ ~ C cd ~ ~ . 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I~ In O Ln r H) LC) {fl I~ N M C f~ O {fl CO N Efl T 0~ O M CO M r 0~ I I //~~ VJ {~} {f} {~} C L U +, ~ t0 O N f~ I~ 0 0 CD t0 N O t0 M O N O ~ 0 0 DO 0 0 N O O r ~ M M r I~ O M N ~ f~ T r N 0 ~ 0 {fj tD {{} O r {{} Efl U 0~ ffl r ~ 00 r ~ f~ ~ Efl 00 M T ffl Efl O ~ Efl ifl ~ {fl ~ Ln r N ~ Ln ~ Ln ffl M EH N {f} M ER ER r bg ER O Ln HS I1~ L.L {~} {}} {}~ '~F O O O O r \ 0 \ 0 \ o \ a \ o \ 0 \ o \ a \ o \ o \ D \ o \ 0 \ o \ a \ o \ 0 \ o \ a \ o \ 0 \ 0 \ 0 - ~ +, ~ N f~ N ~ M r O ~ ~ N N N ~ In I~ Ln O N ~ r N r O f~ ~ r O r ~ t0 M 00 ~ N M O l.f) N O T T r ~ 0 0 O O U O ~~~ •~ a ~°-' m m a m ~mm ~ ~ ~ ~ ~~~ O N I.f) 0 0 lI) O O O N In O ~ N N W 0 0 0 In O Lf') Ln N O O O N {f} l.f) O ~ d0 O ~ N N ~ N M 00 O Efl l.f) r E ~ N ffl O ffl l.f) r O N N ~ fA O O Efl O CD T N CO M T 0~ ~ ~ r 64 ER fF1 Efl N ~ N ~ N O l.f) ffl ffl {{} Efl ~ N L ffl Efl Efl Efl ffl N {f} r Efl U ~o m c 7 Ln ~ L(') r ~ T r N A M c9 Ln 00 N N r T T T T ~ T r Q ~ O O N O N N N O N O N N N N N O N O N N N N N N N N N O N N O O C O c O N O N L ~ L ~ .; LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL Q N O i Q N O i LL LL ~ ~ ~ = _ a a m • > ~ ~ ~ ~ ~ o ' ~ c~ a U c ~ c N O N a L ~ , ~ O = ~ N ~ c O •~ c o •~ c ~ c .N ~ N •~ J ~ ~ C U N O z O O ~ N QJ ~ U L U ~ j ~ C O C O O U O ~ O - ~ N N N LL O I6 w (6 w L N +, +~ ~ ~ w O. ~ O. ~ > = L •> N c c N cn > c O N N ~ ~ ~ N ~ ~ ~ a a ~ ~ ~ .3 c O N ~' O *= ~ c ~ ~ I I I N ~ ~ c ~ I O o~ > '+~ > '+~ N ~ •.~ t6 c ~ ~ L O O ~ O a L Q ca o. ca O. co N .+_ = ~ N O ~ O .~ '*' a c .c c 'L ~ ~ ~ o ~ > o a a m - ~ ~ ~ = ~ ~ ~ ~ L ~ o . 0 c 0 c o L ca ~ c - o a o c ~ •co .~ ~ ~ ~ .~ ~ ~ o c o o ~ ~ `~ o X ~ c c ~ ~ ~ ~ ~ ~ +, c ~ > ~ ~ ca L c~ L m L ~ c ~ ~ v ~ ~ w CCo CC0 .~ ~ VJ ~ L L ~ . 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L L O L 0 L [Q L L O L 0 L Q ~ •L O ' L 0 L Q ~ •L O ' L 0 L Q ~ •L O ' L 0 L L~. ~ L O L L CQ C_ O rL~ y/ L CQ C_ O '~L, ~y J L LL ~_ O 'L ~ J L CO. C O '~ ~ J O L Q .~ L O ^L' 0 L Q .~ L O '^L+ 0 L Q .~ L O '^L' 0 L ~. .~ L O ^L' 0 L Q .~ L O ^L' 0 L Q .~ L O ^L, 0 L Q .~ L O '^L, 0 L Q .~ L O '^L' fl. C C_ L O rL~ W Q C C_ L O rL~ W Q C C_ •L O '~L+ W Q C C_ •L O '~L' W W i-J 0 N O O O O r r ^ ' W i-J 0 N O O O O r N ^ ' W i-~ 0 N O O O O r M ^ ' W ~ 0 ~ O O O O r ~ ^ + W i-J 0 N O O O O (~ Ln ^ , W i--i 0 N O O O O (Q O ^ ' W i--' 0 N O O O O (Q ~ ^ ' W ~.d 0 ~ O O O O (Q ~ ~ 3 O O O ~ O r i- ~ 3 O O O O O r i- ~ 3 O O O Q O T i- ~ 3 O O O O O T ~ ~ ~' N O O O O r ~ ~ ~' N O O O O r ~ r ~ ~ ~' N O O O O r Ln r ~ ~ ~' N O O O O r CD r ~ ~ ~' N O O O O (~ I~ r ~ ~ ~' ~ O O O O (~ 00 r ~ ~ ~' N O O O O (p O r ~ ~ ~' N O O O O (Q O N - s ~3 O O O O O r r N •- ~ ~3 O O O O O r N N •- ~ .3 O O O O O r M N •- ~ ~3 O O O O O r ~ N N O) (6 a (6 U ^L^'' W W a~ ~ nn~ ~ L.L w i.L1 ~xn ~•- ! 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M O Efl ~ M O fF} ~ ~ '~ ~ Ln N r Efl O O r ffl ~ ~ '~ ~ O O r {{} M 00 O ffl 4i aa11 ~ VJ C •- p C •- N C •- N C •- N C •- p C •- p N N ~ ~ ~ ~ ~ ~ N^+ O ltd Ln O Ln ~ O Ln Ln O L(') lI~) O lS~ lS~ O lS7 ~ O LC) Lf~ O Ll7 ~ O Ln Ln O Lf7 ~ ltd I~ ft} O LSD r O O M O O M . ~ C G +, ~ C~ ' In O ~ N M N Ln ltd N {f} O CD O o0 {{} Ln 00 00 r {y4 I~ O CO ~ £f-T M I~ ffl O ~ CO ~ O r ~ ~ O M 00 M ff} r I~ ~ r b4 I~ Ln lf) N {fi O CO In ~ r CD Ln M r O CO CD N ffl O o0 In CD {f} O 00 M r {f} Ln lI) lI) ER N I~ N fF} oD O ffl I~ LC) r r Efl ~ Ln N Efl M 00 N {f} 07 ~ ~ r ffl r M N {fi ~ N L U (q ~ ~ (~ O ~ N O ~r.F V ~ l.f) O r r 00 N ~ Ln r O 00 ~ I~ {~ r 00 ~ Lfj {~ N N ~ r {~ lf) M N r {~ ~ CO (D r {~ ~ M 11~ r r O r M N ~} r O o0 ~ {~ ~ N N N {~} ~ r r t0 r N M N CD {~} ~ O lf) N r lf) o0 ~ Ln {~ ~ r CO Efl M cfl M Eft I~ o0 r Efl M O ~ r {,~} O I~ I~ Efl r ~ Ln Eft CO O r N {~} M ~ N r {~ O o U 0 0 r {f} ffl b9 ffl ffl {f} 0 N 0 r 0 QO o In O CO o Ln 0 00 0 l!') 0 M 0 ~ o 00 O In o O 0 ~ 0 M 0 Ln 0 O 0 lS') 0 QO 0 N 0 I~ 0 00 0 r 0 r p U N N r E I~ r O ~ ~ N O r ~ ~ r N ~ ~ r N ~ N O ~ M o0 0 0 p p ~ ^~ W O N ~ O {~ CO O ~ ~ r M CO M ~ {f} ~ O tD L(7 {fj ~ I~ o0 ~ ~ ~ M r {~ O O Ln ~ lI) ~ N r ~} ~ O I~ N ~} N of ~ M (~ ~ M M N {fj ~ CO CO r {~ ltd l,C) ltd N {~ M I~ Ln M {fj r r O CD {f} ~ O r ~ {~} O Ln Efl r d7 EA O of ffl tD M M ffl Cfl r Ln ffl o0 Ln N ER OJ lI) CD b4 N r O r {fj L L U m ~~ ~ O 0 0 ~ O O O O O N N ~ ~ ~ ~ O r N [ ~ ~ Q ~ r r r r (D r r r r M T T r r r r r r N N N r N N O r U N L^ ~ UJ ^N^++ W N^'' W N^'' W N^'' W ^N^++ W N^'' W N^,, W ^N^,, W N^'' W N^'' W N^'' W ^N^++ W N^'' W N^'' W N^'' W N^,, W ^N^,, W N^'' W N^'' W N^,, W ^N^++ W N^'' W N^'' W N^'' W U N L U ~ ~ U N ~ (0 a ~ ~ U ~ U ~/ L L N U c a (Yj m U U U ~ a ~ a ~ ~ a ~ ~ ~ c L L W - ~ ~ U Y a (A I (A I I ~ ~ ~ ~ N ~ U U c~ ~- ~ ~ Y Y ~ m m m ~ ~ a ~I' ~ ~ ~- ~ _~ ~ c v ~ ~ Y U ~I,, ~~cl~R~ ~ / ~/il~R~ l l //i1~~~ l \ cn cn w I O I O i~~ ~ a ~ (A (0 Q' ~ ~ p. ~ ~ (6 Q cA W ~ .. ~ .. ~ .. ~ L O L O L O O O (6 z U ~ L +~ U ~ L +~ a ~ a ~ , o ~ ~ U c - a ~ a ~ ~ t U a c Q U ~ N > N > N > O ~ O ~ O ~ ~ N ~ ~ m U (A I (A I W I w I ,~ (n ~ ~ a ~ a ~ ~ ~ a In c ~ c~ ~ ca ~ - ~, [ ~ a O U O U O U }' ~, r }' ~, r }' ~, r r "O r "6 a~ a~ a~ a~ ,, cn W W ~ ~ ~ a ~ ~ a a O • O • o -~ -~ ~ ~ ~ N ~ O ~ O ~ O ~ O E p ~, I o I 0 I 0 ~ ~ ~ ~ a ~ a ~ i in ~ in w w ~ a ~ a ~ a cA ~ cD ~ N ~ ~ ~ O ~ O ~ O ~ O ~ N _ ' ~ _ ' ~ _ ' ~ _ ' / ^ vJ I • , ^ uJ I W I W I • I C I C I C I C L ~ U L ~ U L ~ U n O n O N O ~ o 11~ N 0 Ln . O *-' (n . O *-' (n . O *-' (n . O ~' (n ~, C N ~_ ~ L ~, C N ~_ ~ ~, C N ~_ ~ ~, C N ~_ ~ ~ ~ O r C ~ O r C ~ O r C X O r ~ 0 N ., ~ 0 N .. ~ 0 N .. ~ 0 N ., L *-' ~ L *J ~ L *~ ~ l1) O Q In O Q Ln O Q r O O r O Q Q~ Q~ O O ~/ y LL (~ ~~y LL NN LL NN L.I. ~ ~ ~ ~ Q~ O O O O O Q~ O -O ~ ~ . _ _N ~ cn ~ N_ ~ ~ ~ ~ rA p +~ (6 ~ rA ~ N ~ N N ~ p E p E N ~ ~ ~ ~ ~ N ~ N ~ p ~ C O C O C O C O C O L L L L O ~ Q O O O L L L L N p p N U U U •+~ •+~ •+~ +~ •+~ ~ ~ O ~ l.C) •fn ~ Lp Lt') I.!') (6 Q (0 Q (6 Q f0 Q +~ O +~ O +~ O +~ O fn fA (A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 2 l.C) N 2 CO N 2 I~ N 2 00 N N O N `~ `~ N M N N Q Q Q Q CO M 2 ~ M 2 M M 2 O M 2 O ~ ~ r ~ ~ N ~ ~ M ~ Q lf) ~ Q CO ~ Q I~ ~ Q O ~ Q O lf) O N N m (6 a (6 U ^L^'' W W a~ ~ nn~ ~ L.L w i.L1 ~xn ~•- ! T~ Q ~~ v l w iii.1 ~J.~ w z 0 a rrO F~ z ~M w /'w I+I C a t0 t0 O m U O O N U O W ~ V > ~ N -O J .N ~ N -p f~ L f~ L (~ L N -p ~ f~ L fl7 L N -p ~ fA L fn L U1 L N -p ~ fA L - ^L^++ - ^L^'' - ^L^'' - ^L^'' fA L f~ L N ~ ~ (~ L fA L fn L N ~ O (,~ ^ ^'' W Q ^ ^'' W ~. ^'' ^ W Q ~ U ^ ^,, W Q ^'' ^ W Q S U ^ ^,, W Q ^ ^,, W Q ^'' ^ W Q ~ (~ ^'' ^ W Q W Q W Q W ~. W Q ^ ^,, W Q ^,, ^ W Q ~ U ^ ^'' W fl. ^ ^,, W Q ^ ^++ W Q U W i~ W i--' W i~ W i~ W i~ W i~ Q V U •- O- ~ ~ '~ ~ Ln ~ O {f} N ~ M {{} M I~ r ffl ~ ~ '~ ~ M N N Efl 00 O O fF} ~ ~ '~ ~ L!) N O {f} O l17 O ffl ~ l.f) O ~{} ~ ~ '~ ~ 00 O r {fi LC) M 0 ffl Lf~ N 0 {t} I~ M 0 ffl l!') 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O . +J ~ r O O O O O OJ O O r O N r C'~ r OJ CO 07 r ~ C ~ ~ r ff3 ffl ffl Efl Efl {fl ~ C'7 ffl r f/) T ffl ~} T ffl T Efl ~ ffl ~ b4 { f} ffl T b9 C'7 b9 CO {~} I~ ffl N L U (q O O O O O CO O O O O O CO O O O r l1') O O O O O p r N 00 N ('7 ('7 ~ ('7 l.C) CO O ~ O I~ 00 C'~ O ~ ,} ~, 00 ~ O CO ~ ~ r ffl r Efl O fF} O I~ O N O N ~ fR O N C7 ~ c0 r 00 O N fF} O r I~ ('7 ~ 00 CrJ N ~ Lf') O N U {f} ff} ~ {f} {{} ffl ffl ffl r ~ r ~ bg Efl ffl r ~ r 69 o o 0 0 0 r Ln a a o o o a a o o a o o o a a a o o a a O I~ O O r ~ N N O O r O O Ln d0 O CO I~ ~ O O U ~ O r O r 00 I~ r r Ln Ln Ili 00 Ili I~ O ~ LSD Ln Ln Ili Ln Ln O O N ~ o O ~ +~ m O c0 O m d7 o r in r ~ T O O ~ T O ~ O O O L~ in ~ in CO O CO o C7 ~ CO o O N CO O ~ O O O r O O 00 O O I~ ~ r O T CO r I~ LL C'7 CO ~ Efl Efl {fl ~ r T Ef3 T C7 I~ L~ ff3 r N ~ CO I~ ~ ff3 ffl ~ ffl f/-} ffl ffl Efl ffl ~ ffl {f} ffl ff3 ffl O L ~ O U c0 ui 3 L ~ o N m ~ ~ m ~' ~ •~ ~ ~ ~ ^L' ~ O Q a a, ~ ~ ~, ~; U o ~ ~ U D O U *J (~ ~ O -6 O C O -O N L ~ L o vo ;~~- m LL L O ~ U ~ O O W L ~ ~ ~ IA ~ L ~ N L O p ~ o~ _~ ~~ oa ~ ~ ~ U O ~ ~ N C L +~ N O Z U fl ~ _~ ~ L O ~ O L U O }, U a o ~ Q a O ~ N w ~ ~ ~ ~ ~W W ~ cn 6 N Q O ~ U >, ~ C o a .~ U ~ N~ o L O ~ ~ *_' c~c ~ f6 ~ Q +~ ~. 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T~ n~ I--I TT~ U1 i~ ~J.~ I~ v! z 0 M~ w i0 w z Iii a t0 a N a W .~ m U 0 0 0 N U O a ~ N -O J . N ~ ~ Q .~ N I~ ~ (D O N O O O ~ O r O M O O ~ N O M O O ~ I~ O (D O ~ N r N r O O O O O CD ~ U ~ N M O CO CO O O H O O N O r +~ O O o0 O ~ M p _ N {f} 69 r ffl M Efl N fR r {f} N ffl ~{} 00 b4 N b4 O ffl E {f} M ffl CD ffl O O {}} {f} ~ ER CD 64 +~ O l.C) {f} ~ a ~ ~, ~ O J (6 (A ~ ~ o 0 ~ L o v ~ ~ 0 a co a a o o a a o a a o o a a o a s a a o a i O O O O O O O O O O O O O O O O O O O O N O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . > O >~ O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O U U O T T r r T T r r r r r r r r T T T T r r ~, a O U N 07 In O Ln Ln lI) Ln N l1) O N o~ r O O Ln O O O +J >, r CO O~ O O M O I~ r M O of r O d7 N 07 O r O r r d7 O CD 07 M ~ O O O O N r O O O O 00 CO C ~ ~ 'N ff3 ffl ffl Efl r f/-} ffl r ffl Ef3 ' M b9 r b9 M b9 N ffl ffl EA ffl r ff3 ffl ffl N ffl L U (q N ~ O O O O O O I~ O O ~ O O N N O O ~ O I~ tD N O a r M O N M O I~ (D ~ r r O O p (D ~ I~ N M O CO CO O O H O O N O r O O 00 O Q M ! ~ r M N r N ~{} 00 N O ~ M tD fF} {f} ~ tD ~ l.C) p {f} ffl Efl fF} {{} ffl bg {fi ffl {t} ffl ffl ER 69 ~ {f} o U o 0 0 0 r Ln a a o o a a o a o o a a o a s a a o a O 00 CO I~ ~ O O O M O O r O O O O ~ O O O U ~ O ~ ~ LSD Ln Ili CO In (D Ln I~ LC) LSD Ln I~ O r O r In LL O O O ltd Ln O Ln Ln lI) Ln lI) l1) O ltd N O +J t0 t0 l!7 O ~ O N O ~ r r N O r d7 M r O o0 07 I~ O O O ~ O +J o0 N LL r N r ffl O r N N M r OJ Efl O r N Ef3 M 11~ O r I~ O r N 07 N O M ~ O O EA O ffl CO M O CO ~ ~ CO N ~ ff3 ffl Efl {fl ffl ffl b9 b9 ffl ffl ffl ~ ff3 ffl ~ ffl ~ L ~ O j N L o (_ m ~ a c~ c m a . ~ 6 N L ~X (~ L O ~ ~, ~ ~ ~ U z L C _ •C ^ W U O (D N ~ i U 3 ~ O O ~ N C O L +~ ~ Y ~ (D N ~ ~ ~ O Q N '~ O J ~ () N Q `~ O ~ N O C i~ L ~ L ^' ~ ~ ~ ~ n ~ O 3 c~ ~ a LL ~ ~ O o U ~ 0 0 ~ N ~ ~ ~ Z a N ~ ~ ~ (A a W ~ 3 `~ ~ LL O U ~ ~ • U ~ - _ (n ~ c~ -a N ~ N ~ ~ N Z `~ N ~ ~ CO > ~ a ~ ~ ~ a X ~ N o ~ c c~ ~ ~ ~ o ~ ~ O ~ ~ ~ ' ' m .~ •~ o ~ ~ m ~ a ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O o L O c o •c 3 ~ ~ ~ ~ ~ o a c ~ (~ o Z ~ .. O O r ~ O U ~ N Q (0 ~ (A O L O •~ N ~ °~ L O fl- O m +~ ~ Q - U ~ ~ ~ ~ '~ ~ ~ ~ ~ ° ~ '+~ ~ O 3 '+~ ~ ~~ o O E ~ ~ 3 .. ~ ~ ~ ~ O c ~ c O o ~ -° ° m ~ c~ m ~~' ~ ~ o -° 3 ~ m ~ m ~ m ~ .~ ~ ~ a U ~ Q w ~ in w w ~ ~ Q a Q cn Q o in z cn C~ a ~ cn ~ ~ ~ l.t~ (D I~ 00 O O r N M ~ l.C) (D I~ 00 O O r N M ~ O r O r O r O r O r O r O N O N O N O N O N O N O N O N O N O N T N T N r N r N r N O N N O) (6 a (6 UN •L^' W W O nn~ ~ L.L 75B-38 x v f T~ n~ ~-I T'/~'~1 v f i~ ~J.~ I~ v! z LL0 1-' M~M ~J.~ i0 w z ~" Cr1 a t0 C a co c=o N a W I m U 0 0 N U O ~ N -O J .N ~ ~ Q O ~ ~ M N O O O O O O O CD N N O lI) ~ O O O l!7 r l17 O ~ .~ l.C) I~ ~ r N M ~ (D ~ f9 (D (D O lf) I.f) O l!7 CO N (D CO I~ Ln O ~ CD ~ >' U (D M M o0 O o0 CO M CO M N M M I~ ~ M ~ Ln O N M o0 00 ~ CO ~ ~ ffl O r ~ ffl 00 ffl r r r r M ff3 Ln {f} M ffl l.f) ~{} O {fi l.C) ffl l.t~ {t} ~ ffl ~ ffl M ER ~ Efl M {~} LO {f} O Efl l.C) ffl N {~ N ffl N ffl N ffl M {f} O ~ ; {~ Efl ~} Q1 J N N v a~ i o O a O o O 0 O o O a O a O o O o O a O o O o O a O a O o O a O o O a O a O o O o O a O a O o O o O a O O > O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O . O >> U U O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O r r r r r r r r r r r r r r r r r r r r r r r r r r ~ a O U In Ln ~ 00 N O O O O O O O CO N N O lI) ~ O O O l!7 r l17 O ~ N . N . ~ . 00 . O . o0 . N . o0 . N . o0 . M . o0 . N . I~ . ~ . N . O . a . r . M . o0 . ltd . M . I~ . N . M . +J >, 00 00 I~ r ~ r of CO 00 CO CO CO CO O O CO 00 I~ Ln O O O O O M 00 C~ ~ ' M ba} M {f} N ffl ~ Efl lI) Efl ~ {fl r ffl N {~-} r ffl N Ef3 ~ b9 N b9 N ffl N ffl N ffl ~fl Efl r EA N ffl ~ b9 N 69 r ff3 r ffl ffl Efl {f} N L U (q O l.f) ~ 00 N O O O O O O O (D N N O lt7 ~ O O O 11~ r lf) O ~ l.C) I~ ~ r N o0 ~ tD ~ t9 CO CO O lf) lf) O I.t~ CO N CO CO I~ Ln O ~ CD ~ ,} O N CO I~ ~ M O r M ~ {~9 o0 00 ffl O r r o0 r r t0 M {-A M lf) {f} CO M ffl M 11~ ~{} N O {fi M Ili ffl M l!7 {t} I~ ~ ffl ~ ~ ffl M M ER ~ ~ Efl Lt7 M {f} O ISM {f} N O Efl M Ili ffl o0 N {~ 00 N {{} ~ N ffl CO N ffl l.C) M {f} o U 0 0 r ~ ~ ~ 0 0 o O o 0 0 0 0 0 o O o 0 0 0 0 0 0 0 0 0 0 o O o O O M M M r ' LSD O O ' O O O ' O r CD CD r N r O O ' O " M ~ M O In U ltd CO CD Lf) ) L( t0 Ln L( ) Ili Ln L( ) LC) Ln Lf7 LC) 00 00 Ltd lS7 L( ) lt ) CO CO I~ CO I~ LL O O N N . O ~ . 0 M . 0 M . 0 N . 0 O . 0 N . 0 o0 . 0 N . 0 o0 . O M . O o0 . O 00 . O 0~ . O 00 . O 00 . O lI) . O N . O r . O M . O o0 . O N . O N . 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N LL +-~ o0 M ffl ltd CO {f} CD ~ ffl CO ~ Efl CO lI) Efl I~ ~ {fl M r ffl O N {~-} M r ffl O N Ef3 O ~ b9 O N b9 O N ffl O N ffl O N ffl O N {~-} O M Efl M r EA Ln N ffl CO ~ b9 CO N 69 o0 T ff3 0~ r ffl 00 r ffl 00 r Efl CO ('V ffl C L U .~ .. ~ N ~ m N ~ ~ ~ a a .. ~ ~ ~ L o N ~, m -~ cn = ~ ~ ~ ~ ~ O O U Z ~ '~ N ~ U ~ ~ U = O. ~ ~ ~ `-' O ~ O ~ ~ ~ ~ ~ ~o -~ ~ O cn o ai a ca ~ ~ ~ U ~ (~ ~ U •~ ~ .. m U ~ U ~ m L O :~, ~ c ~ •~ ~ 2 L o 0 ~ 0 - ~ 2 ~ ~ ~ ~ O ~ N ~ LL ~ LL ° N 0 O N ~ a~ 2 a o c ~ '+~ c ~ L Q Q c ca Q ~ ~ ~ cn ~ ~ c N C = (0 U O U U O r^I~' W ~ \J ~C^, W ^, W ~ L L ~S ~ U U ~ C (0 '+~ ~ N (q m L O O O O ~ Q Y U L N U ~ ~ N ~ O Q N fl. +~ ~ ~ ~ (6 ~ L ~_ > E O N ~_ ~ ~ ~ A N N a s N N ~ ~ ~ ~ Q ~ U_ ~ O ~ ~ Q ~ ~ N + C ~ L > ~ ~ _ ~ N N O ~ ~ N ~ O U ~ ~ ~ 0 = j" ~ .~ .~ N ~ N ~ ~ N ~ ~ ~~ N ~ O C N (0 ~ O (6 U Ln ' ~ r L ~ ~ O ) LC L M L In L m m (~ (6 O O = = O O N Q (n - - O L -6 O O > ~ (6 Q > > > Q Q L L ~ ~ C ~ O ~ ~ C O > > C (0 (6 f0 O O IL w ~ 0 0 0 > > Q Q ~ O ~ ~ (n o U U Q > , ~ , ~ w ~ m ~ U l.C) (D I~ 00 O O r N M ~ lf) CO I~ M O O r N M ~ l.C) (D I~ 00 O O r N r N r N r N r N N N N N N N N N N N N N N N N N N N N N M N M N M N M N M N M N M N M N M N M N ~ N O M N O) (6 (6 UN ~^L^'' W Q W a~ ~ nn~ ~ L.L 75B-39 ~xn ~•- ! 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O . o0 . 00 . M . ~ . r . o0 . r . of . Ln . N . O . +J >, In O O O O ~ O ~ ~ O ~ 07 CO I~ ~ O CO O O N Ln CO l!7 CO 00 00 I~ C~ ~ 'N r ba} N ff} ffl N ffl N Efl I~ Efl N {fl ~ ffl ~ f/-} N ffl ~ Ef3 r b9 M b9 I~ ffl f/-} ffl ' N f/-} N Efl N EA N ffl b9 N ffl ff3 N ffl M ffl r Efl I~ ffl L U (q c0 0 0 0 0 0 0 0 0 0 0 0o in o ~n ~ o 0 0 0 ~ o ~ o 0 0 0 ~ tD M CO CO O CO O O CO O tD I~ O 00 r CO CO CO ISM O CO O tD lf) ~ O ~ CO M 00 M M ~ M ~ ~ M ~ M O ~ ~ tD M M M ~ r M r M L!') CO ~ ,} +-~ ~ 11~ r Lf7 11~ lt7 I.t7 ISM Lt') LC) 11~ CO O Ln M N lf) lt7 I.t7 ~ M Ili M Ll') r M l!7 O N ff-? {~ {{} ffl ffl r ~ ~ r tFr r tfr {{} r ~ {fi ffl r ~ ffl ffl ER Efl {~} {{} Efl ffl {~ {{} r ~ ff? r ~ o U 0 0 r 0 0 0 o O o 0 0 0 0 0 o O o 0 0 0 0 0 0 0 0 0 0 o O o O CO 0 0 0 0 0 0 0 0 0 0 O O O I~ M O O O ~ ~ O H O I~ O O U CO Ln O LC) Ln L(') lS~ lS7 L(') Ili Ltd I~ CO Ln ~ O r L(') L(') lS~ lS7 00 l,t~ 00 Ll7 C~ In In LL O O 0 0 0 0 0 0 0 0 0 0 0 O O O O O O O O O O O O O O O O O I~ . 00 . 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