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HomeMy WebLinkAbout75A - ONE BROADWAY PLAZA REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE-. APPROVED 0 As Recommended PUBLIC HEARING —AMEND DEVELOPMENT El As Amended O AGREEMENT NO. 2004-01 FOR THE ONE r7 Ordinance on 1st Reading [I rdinance on 2nd Reading BROADWAY PLAZA OFFICE TOWER TO BE [I Implementing Resolution LOCATED AT 1109 NORTH BROADWAY, ONE El Set Public Hearing For BROADWAY PLAZA, LLC -APPLICANT CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Adopt an ordinance approving certain amendments to Development Agreement No. 2004-01. PLANNING COMMISSION ACTION On June 14, 2010, the Planning Commission recommended that the City Council adopt an ordinance approving the amendment to Development Agreement No. 2004-01 by a vote of 3-2 (Acosta and Yrarrazaval opposing, Alderete and Betancourt abstaining) to modify certain provisions of the development agreement to delete the 50 percent pre-leasing requirement; to allow the applicant to request assistance from the Redevelopment Agency; adjust the timing of the funding for the neighborhood traffic studies; allow additional time to refill any excavated area; and to delete the minimum of 51 percent ownership interest provision for the One Broadway Plaza (OBP) office tower at 1109 North Broadway in the Specific Development Plan No. 75 (SD-75) zoning district. The Planning Commission modified Section 5.9 (Historic Structures on the Property) of the amended agreement by adding the Orange County Educational Arts Academy to the list of schools to be notified prior to the commencement of pile driving and changed the allowable time to refill any scarified area to 120 days as outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. M. Trevino Executive Director Planning and Building Agency VF:rb reportsAmend DA0"I One Bmadway.cc Exhibit: A. Planning Commission Staff Report 75A-1 75A-2 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, AND 845 BROADWAY, 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. By Ordinance No. NS-2656, the City Council approved a development agreement(the "Development Agreement") between the City and One Broadway Plaza, LLC, 1200 N. Main, ILL, and 845 Broadway, LLC (the "Developer'). C. The Developer has sought an amendment to the Development Agreement to modify certain terms, a true and correct copy is attached hereto as Exhibit 1(the "Amendment"). D. The City enters into this Amendment pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on recommended approval of this Amendment. E. Entering into this Amendment 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 One Broadway Plaza 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, on July 19, 2004, approved a Environmental Impact Ordinance No. NS- Page 1 75A-3 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. SECTION 2: The Amendment is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. SECTION 3: 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 , 2010 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS- Page 2 75A-4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS- 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- Page 3 75A-5 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 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC Dated: July , 2010 75A-6 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA; and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("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") on the one hand, and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN LLC, and 845 BROADWAY LLC, each of which is a California Limited Liability Company (collectively referred to herein as "Owner" or"Property Owner"), on the other hand. 1. This Amendment is entered into with reference to the following facts: 1.1 Original Agreement. On or about July 19, 2004, the City and Owner entered into a written Development Agreement, referenced as City Agreement No. A-2004-153 and recorded as Document No. 2005000414753 of the Official Records of the County of Orange ("Original Agreement"). 1.2 Purpose of Original Agreement and Amendment. The purpose of the Original Agreement and this Amendment is to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75, Environmental Impact Report No. 99-01, General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02 (the "Pre-Existing Approval Entitlements"). 1.3 Statutory Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Amendments and amendments to Development Agreements, such as the Original Agreement and this Amendment, with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Amendment is intended to assure adequate public facilities at the time of development. (2) This Amendment is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No. 75. 1 75A-7 (3) This 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. 75. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Amendment will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this 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/or pay such benefits sooner, and represent benefits which would not otherwise be required as part of the development process. 1.6 Planning Commission - Council Hearings. On June 14, 2010, 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 Amendment. The Planning Commission recommended to the City Council of City that it execute this Amendment. On , 2010, 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 Amendment. 1.5 Council Findings. The Council finds that this 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 , 2010, the Council adopted Ordinance No. approving this Amendment. The ordinance and this Amendment becomes effective thirty (30) days thereafter. 2. Section 4.3 shall be deleted in its entirety: I Section 5.1.1 shall be amended to read as follows, and Exhibit C-1, attached hereto shall be made a part of the Original Agreement by this reference: 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City are as set forth in Exhibit C-1 to this Agreement. The 2 75A-8 design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C-1 prior to issuance of final map and building permit. Owner shall have one year from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph 5.a. and 8 of Exhibit C-1 and transfer title to the City, except as to the roundabout, for which Owner shall secure and transfer to City an easement(or other right to construct, maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such offsite mitigation measures (including traffic studies) at the time called for in paragraphs 5.a., 8 and 9 of Exhibit C-1. For all other items specified in Exhibit C-1, security in the form of bonds (i.e., a payment, a performance and a material bond) or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those offsite mitigation measures identified in paragraphs 1-4, 5.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account or escrowed construction loan proceeds in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty (30) days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C-1, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C-1 to owner within thirty(30) days, subject to City accounting practices, after completion of all items referenced in Exhibit C-1 and issuance of a Certificate of Occupancy for the Project. 4. Sections 5.8 shall be deleted its entirety: 5. Sections 5.8 shall be deleted its entirety: 6. Sections 5.9 shall be amended to read as follows: 5.9 Historic Structures on the Property. (3) After complying with the relocation obligations of subsections 5.9(1), if necessary, and 5.9(2), Owner may, notwithstanding the provisions of section 5.8 above, scarify the soil in the Scarifying Area(shown on Exhibit E to this Agreement) to a depth of three 3 75A-9 feet(3.0') and drive piles in the area shown on Exhibit E to support the eventual 37-story office tower. The scarifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency, and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District, Orange County High School of the Arts, and El Sol Academy. The scarified area shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and, if a building permit has not been issued and construction of the Project has not commenced within one hundred twenty(120) days thereafter, landscaped, irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 7. Except as hereby expressly amended by this Amendment, the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been executed by the City of Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. authorizing such execution, and by Property Owner. Dated this day of , 2010. THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W. FLETCHER City Attorney [Signatures continued on next page] ONE BROADWAY PLAZA, LLC, 4 75A-10 By: MICHAEL F. HARRAH Managing Member 1200 N. MAIN, LLC By: MICHAEL F. HARRAH Managing Member 845 BROADWAY LLC By: MICHAEL F. HARRAH Managing Member 5 75A-11 EXHIBIT C-1 (rev. July,2010) OFF-SITE IMPROVEMENTS Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 1. Install a new traffic signal at Main/15t , $200,000 Owner Building including communication cable and Permit conduits to connect to the City's Traffic Management Center, and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/151h, including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St., including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Parking Permit Structure egress. 5.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of 10`h Street unless City and Sycamore. undertakes per section 5.1.1 5.b. Construct roundabout at the $600,000 Owner Building intersection of l Oth Street and Sycamore, Permit with loth Street one-way EB, including necessary striping, traffic signs, pedestrian crosswalks and pedestrian refuge areas. Right-of-way shall be acquired at S/W, S/E and N/W corners by developer. 6 75A-12 Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 6. Restripe: (1) WB Santa Clara to provide $50,000 Owner Building one LT lane and one shared LT/RT lane; Permit (2)NB Grand Avenue from Fruit Street to 141h Street at Santa Ana Blvd/I-5 HOV ramps to provide three NB travel lanes; (3) I-5 NB off-ramps to provide a WB LT lane, a shared LT/RT lane and a RT lane at Grand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St.., restripe and slurry seal this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of I Oth Street. S. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17th and unless City Broadway/171h, including striping, traffic undertakes per signal modification, and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Six month mitigate changes in traffic patterns or (actual cost, prior to increased cut through traffic resulting from not an issuance of the One Broadway Plaza Project in French estimate) the first Park, French Court, Willard, Floral Park, certificate of West Floral Park, and Washington Square occupancy but Neighborhoods. Traffic plans costs shall no later than include traffic studies, staff time to process 22 month neighborhood traffic plan, and the from the 1st construction of appropriate semi-diverters, building diagonal diverters, and street closures. permit 7 75A-13 Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 10. Reconstruct 10 St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway, which will include: (1) traffic signal modifications at Main/Washington, Main/101h, W ashington/Sycamore, Broadway/Washington, and Broadway110'h (2) restriping streets and intersections, and (3) installing appropriate traffic signs (4) retiming traffic signals (5) constructing ADA compliant wheel chair ramps. SUBTOTAL $12,600,000 Notes: 1. Estimated costs are based on 2004 year of expenditure. Owner shall fund item 5.a. and 8 (if necessary) based on estimated actual construction and right-of-way costs at time of indicated funding event, and supplement if necessary. 2. Items not complete and accepted by the City shall be fully bonded for pursuant to an offsite subdivision improvement agreement, prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City, shall be completed and accepted by City prior to issuance of Certificate of Occupancy. 8 75A-14 REQUEST FOR .�. REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY JUNE 14, 2010 APPROVED TITLE: ❑ As Recommended PUBLIC HEARING —FILED BY ONE BROADWAY ❑ As Amended PLAZA, LLC TO AMEND DEVELOPMENT AGREEMENT ❑ Set Public Hearing For NO. 2004-01 FOR THE ONE BROADWAY PLAZA OFFICE DENIED TOWER TO BE LOCATED AT 1109 NORTH BROADWAY Applicant's Request ❑ Staff Recommendation CONTINUED TO Prepared by Vince Fregoso Q*Lln Exec- ive Director Planning M ager RECOMMENDED ACTION Recommend that the City Council adopt an ordinance approving certain amendments to Development Agreement No. 2004-01. DISCUSSION Request of Applicant One Broadway Plaza, LLC, is requesting approval to amend an existing development agreement in order to facilitate the construction of the 37-story One Broadway Plaza (OBP) office tower at 1109 North Broadway. Specifically, the applicant is proposing to modify provisions that: Prohibit the issuance of building permits until the building has been 50 percent preleased; prohibit requesting assistance from the Redevelopment Agency; identify the timing for the funding of neighborhood traffic studies; establish the timeline for refilling any excavated area; and, requires the applicant to maintain a minimum of 51 percent interest in the development. Property Description The One Broadway Plaza project site is a 4.34-acre, 13-parcel site located in midtown Santa Ana. The applicant received approval in 2005 to construct a 518,000 square foot, 37-story, 493-foot tall office tower and an eight-level freestanding parking structure with 2,463 parking spaces. In addition, four buildings totaling 12,484 square feet currently on the project site will be used for office and/or restaurant purposes. The project site is bordered by Washington Avenue to the north, Tenth Street to the south, Sycamore Street to the east and Broadway to the west. The site is zoned Specific Development Plan No. 75 (SD-75) and has a General Plan Land Use designation of One Broadway Plaza District Center (OBPDC), which permits office development at a floor area ratio of 2.9. Surrounding land uses include single and multi-family residential and office uses to the north, office uses to the south, and both office and school uses to the east and west (Exhibits 1 through 5). 1 Amendments to DA No. 2004-01 June 14, 2010 Page 2 Project Background In August 2004, the City Council approved several entitlements for the One Broadway Plaza office tower, including an environmental impact report, a zone change, a general plan amendment, a zoning ordinance amendment, a parcel map and a development agreement. In October 2004, a referendum petition was certified and a referendum election on the project held on April 5, 2005. The referendum election, which approved the project, specifically addressed Ordinance No. NS- 2649, which authorized the rezoning of the property, amendments to the Midtown Specific Plan (SP-3), and the adoption of Specific Development No. 75 (SD-75), which established zoning standards for the project. As the development agreement was approved by a separate ordinance (NS-2656), the Planning Commission and City Council may modify the agreement without the need for a public vote. The project is being designed with energy efficiency and sustainability in mind. As the attached letter and LEED Checklist indicate, the project's commercial interiors will be designed to the requirements for a LEED Silver certification. LEED (Leadership in Energy and Environmental Design) is a third-party certification program and the nationally accepted benchmark for the design, construction and operation of high-performance green buildings. The LEED program was developed by the U.S. Green Building Council (Exhibit 6). Over the past few years, a significant shift in the local and national economy has occurred. This shift has severely impacted the development community, including Santa Ana. In fact, of the 13 large projects that have been submitted to the City for review in the past five years (Brookhollow Office project, City Place, Cordoba courtyard housing, First and Cabrillo condominiums, Montage condominiums, Nexus Skyline Towers, Nexus Phase II, One Broadway Plaza office tower, Promenade Pointe condominiums, Sixth and Parkcenter condominiums, Town and Country Manor, Village Green and the West End Lofts), only the City Place and Skyline Towers project have been constructed. The City has taken a proactive approach to assist in the overall recovery of the regional economy. For instance, at the request of the Building Industry Association (BIA), the City Council enacted an economic stimulus ordinance in September 2008 that temporarily deferred collection of impact fees until the issuance of certificates of occupancy and/or compliance for projects. This proposal to amend provisions of the development agreement is another approach to stimulate the economy. The applicant estimates that this project will generate 2,900 jobs in the local economy. Development Agreement Background Development Agreement 2004-01 was not proposed by the developer or city staff, which is a more typical way that such agreements are created. In contrast, this development agreement arose during City Council discussion after the Planning Commission had recommended approval of the One Broadway Plaza project. 75A-1 Amendments to DA No. 2004-01 June 14, 2010 Page 3 This development agreement was adopted in 2004 during different economic times. It required certain improvements and public benefits such as extensive street improvements, the relocation and restoration of the Twist-Basler House, the preleasing of 50 percent of the office building to investment grade tenants, and off-site improvements for the Orange County High School of the Arts (Exhibit 7). Proposed Amendments to the Development Agreement The applicant proposes to amend five sections of the development agreement (Exhibit 8): 1. Section 4.3 Assignment The development agreement requires that Michael F. Harrah retain a minimum of 51% ownership interest in the project. The applicant (Mr. Harrah) requests that the 51% required ownership be deleted in order to allow a joint venture arrangement where he and one or more joint venture partners will share the ownership interest. 2. Section 5.1.1 Offsite Mitigation Measures The development agreement requires the owner to deposit prior to the issuance of a building permit $1.2 million for neighborhood traffic plans ($200,000 each for six specified neighborhoods, including French Park, French Court, Willard, Floral Park, West Floral Park and Washington Square. The applicant requests that the timing of payment be changed to six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of the building permit, and to be permitted to use a funded construction loan as further security for its offsite obligations. 3. Section 5.8 Condition Precedent to Issuance of Any Building Permit The development agreement requires that, before a building permit for the tower is issued, 50% of the net leasable area be leased to tenants who would qualify as "Investment Grade Tenants." The applicant requests that this section be deleted. 4. Section 5.8.2 No Redevelopment Subsidy The development agreement prohibits the applicant from requesting economic assistance from the Redevelopment Agency. Amendments to DA No. 2004-01 June 14, 2010 Page 4 The applicant requests that this section be deleted to allow for a discussion about potential assistance from the Redevelopment Agency. 5. Section 5.9 (3) Historic Structures on the Property The development agreement requires that the scarified (excavated) area under the tower be refilled 90 days after completion of the construction of the building's piles if the tower construction has not commenced. The applicant requests that the 90 day period be extended to 120 days. Analysis of the Issues 1. Section 4.3 Assignment The applicant proposes to delete the provision requiring that Mr. Harrah retain a 51% ownership interest in the project. All other provisions in Section 4.3 pertaining to assignments will remain. Assignment of rights conferred under the development agreement will require prior approval by the City Council. Mr. Harrah is proposing to enter into a joint venture with a financial entity(s), whereby each party retains certain ownership percentages. Mr. Harrah would retain daily managerial control of the project. In these uncertain economic times, it is not unusual for equity partners to request such a position in the project. Further, it is unusual for a City to specify how property is owned. Staff believes matters such as ownership are better controlled by the private market. Further, Section 4.2 of the development agreement specifies that the term of the agreement is seven years. This requirement that Mr. Harrah retain 51% ownership, therefore, is impermanent. For all these reasons staff finds no compelling reason to retain the requirement that the applicant retain 51% ownership. It is recommended that the requirement for retaining 51% ownership be deleted. All other provisions in Section 4.3 pertaining to assignment of rights are recommended to remain. 2. Section 5.1.1 Offsite Mitigation Measures The applicant proposes to change the timing of payment of the $1.2 million. This $1.2 million provides for $200,000 to fund neighborhood traffic plans in the following six neighborhoods: French Park, French Court, Willard, Floral Park, West Floral Park and Washington Square. The rationale behind this requirement was to fund future traffic plans for affected neighborhoods based on the actual trafficicirculation conditions existing after occupancy of the completed One Broadway Plaza tower. In this way actual impacts that may have been 7 Al Amendments to DA No. 2004-01 June 14, 2010 Page 5 unknown during the project approval phase may be addressed. The Public Works Agency advises that the neighborhood traffic plans would commence approximately six months prior to issuance of the certificate of occupancy to allow for an analysis of the before and after conditions. The applicant indicates that obtaining financing in the current economic climate is, in the best of circumstances, challenging. Many projects in the region, and throughout the country, continue to languish for lack of financing, the applicant contends. The applicant maintains that delaying the payment of this$1.2 million will assist with his ability to obtain financing. In that the applicant estimates the construction phase of the project to take 28 months, he proposes payment of the $1.2 million six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of the building permit. Staff believes that the 28 month construction estimate is conservative — and that the actual construction phase will extend beyond 28 months. Further, the applicant initially discussed with staff delaying payment until issuance of the certificate of occupancy. Staff could not support such a delay. The value of this requirement is to study the traffic/circulation right before and right after project occupancy. Staff is amenable to the change in timing to allow payment six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of a building permit, and to be permitted to use a funded construction loan as further security for its offsite obligations. As noted above, we believe this allows for ample time to initiate the analysis. 3. Section 5.8 Condition Precedent to Issuance of Any Building Permit The applicant proposes to eliminate the requirement that 50% of the building be pre-leased to "Investment Grade Tenants." This is one of the most significant reasons that the One Broadway Plaza project has not commenced, the applicant contends. And in order for the project to commence this requirement must be deleted. Staff is aware of no precedent for this requirement as no such requirement has been imposed on any other project in Santa Ana. Further, staff believes that the private market is better able to discern whether construction of this project is appropriate in today's market. Indeed, it is principally the market that drives decisions on every other project built in Santa Ana, the region and the nation. It should also be noted that, given the seven year term of this development agreement, this requirement is at best a delay. And, finally, staff notes that nothing in the development agreement requires the applicant to maintain in perpetuity an "Investment Grade Tenant." Staff supports deleting this requirement for these reasons. 4. Section 5.8.2 No Redevelopment Subsidy The applicant believes he can make a good case to the Redevelopment Agency Board as to why it ought to consider financial participation in the One Broadway Plaza project. This provision of the development agreement, however, prohibits the applicant from even 75A-19 Amendments to DA No. 2004-01 June 14, 2010 Page 6 "requesting" participation from the Agency. The process for obtaining Redevelopment Agency participation would have two steps: (1) delete the provision prohibiting the "request"; and, (2) the applicant would then submit a request to the Redevelopment Agency staff to be considered by the Agency Board. The Agency Board is comprised of the City Council members. Any economic participation in the project would require Agency Board approval. The issue of whether the Agency will provide economic assistance is not before the Planning Commission. The only issue before the Commission is the question of whether the applicant should be entitled to ask. In other words, deleting Section 5.8.2 does not provide economic assistance. It only allows the applicant to make a subsequent request to the Redevelopment Agency. Planning & Building Agency staff offer no opinion as to whether such a subsequent request for specific economic assistance may be appropriate, as such an issue lies outside the purview of our analysis and role in regulating land use. However, staff has no objections to allowing the applicant to make such a request. 5. Section 5.9 (3) Historic Structures on the Property Notwithstanding the title of this section, this particular request of the applicant has no bearing any historic structures or cultural resources. The applicant proposes to amend a provision requiring a future excavated area to be refilled after construction of the piles is completed. This future excavated area will be located below the tower. The excavation is necessary in order to construct the building's piles (i.e., part of the building's foundation system). The current language requires the excavated area to be refilled if the tower construction does not commence within 90 days. The applicant requests an additional 30 days, for a total of 120 days. The requirement aims to ensure that an excavated area is not left open for an extended period. Staff believes the request to allow 120 days is reasonable. The proposed modifications to the One Broadway Plaza development agreement do not affect the overall quality of the project. All other provisions of the agreement will remain in effect as will all other requirements related to the tower. Therefore, based on the above analysis, staff recommends that the Planning Commission recommend that the City Council approve the Amendments to Development Agreement No. 2004-01. CEQA Compliance These amendments to Development Agreement No. 2004-01 are exempt from the California Environmental Quality Act pursuant to CEQA Guidelines Sections 15061(b)(3)and 15304(c). Pursuant to Section 15061(b)(3) "CEQA applies only to projects, which have the potential for causing a significant effect on the environment." The proposed amendments to the development agreement represent changes primarily to the business aspects of the project's approval e.g., 50% prelease requirement, 51% ownership requirement, timing for payment of neighborhood traffic plan fees, and prohibition on requesting economic assistance. Therefore, "it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment . . .." 75A-20 Amendments to DA No. 2004-01 June 14, 2010 Page 7 CEQA Guidelines Section 15304(c)further exempts from CEQA projects involving the "[f]illing of earth into previously excavated land with material compatible with the natural features of the site." Amendment to Development Agreement Section 5.9(3) proposes to extend the period of time by 30 days for refilling an excavated area that will be necessary to construct the building's foundation. The requirement to refill the excavated stems only from the City's interest to return the site to an appearance of a vacant lot should the tower construction not commence in a timely fashion. The excavated area, indeed the entire 4.34 acre construction site, will be secured and screened during all construction activities, including the proposed 120 day period. Potential environmental impacts related to the development agreement have been analyzed and will be mitigated as identified in the One Broadway Plaza environmental impact report (EIR No. 99-01). Therefore, no further CEQA action is required for this project and a Notice of Exemption will be filed. —VVL-� Vince Freg o, A P Principal PI r VF:jm repoft%Amend DA04-01 One&oadway.061410.pc A-21 RI R1 f I+o R2 �` R1 R1 R1 P Mo ctaRi R1 R1 R1 R1 R1 R1P R1 R1 i — P u'o R1 R1 F R1 R1 At Rf" I�m P R2 Ri R1 R2 R1 R1 I R1 1;1 R2 �Y,a R2 P P - �- P- C4 cl j R2-a .. 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SO.1 C�3--A5 C3-A �o, C�� 312•xa C2 C�i Ci �i �i G2ycn C2E C2 w C2 wu Al GENERALAGRICULTURAL CR COMMERCIAL RESIDENTIAL 1 _R1 SINGLE FAMILY RESIDENTIAL •B PARKING MODIFICATION GC GOVERNMENT CENTER R2 TWO FAMILY RESIDENCE CSM COMMERCIAL SOUTH MAIN Mt LIGHT INDUSTRIAL A3 MULTIPLE DENSITY MULTIPLE C1 COMMUNITY COMMERCIAL M2 HEAVY INDUSTRIAL FAMILY RESIDENCE C1'MD COMM.COMMERCIALAIUSEUM DISTRICT MD MILITARY OPERATIONS R4 SUBURBAN APARTMENTS C2 GENERAL COMMERCIAL O OPEN SPACE RE RESIDENTIAL ESTATE C3 CENTRAL BUSINESS P PROFESSIONAL SD SPECIFIC DEVELOPMENT C3-A CENTRAL BUSINESS-ARTIST VILLAGE PCO PLANNED COMMUNITY DEVELOPMENT SP SPECIFIC PLAN C4 PLANNED SHOPPING CENTER PRO PLANNED RESIDENTIAL DEVELOPMENT C5 ARTERIAL COMMERCIAL AMENDMENTS TO DA 04 -1 ONE BROADWAY PLAZA, LLC '' 1109 NORTH BROADWAY - - =500FEET 1"=100D FEET P L A N N I N G A N Q B U I L D I N G A G E N C Y EXHIBIT 1 75A-22 O COMMERCIAL w rRE91DIENRALa4W OFFICE e a RESIDENTIAL 4 RESIDENTIAL WASHINGTON AVENUE w C y H w ti OFFICE a 0 Lu k w U. C a � e L!0 PROJECT SITE y x y U -+ LJ 0 � U w ? OFFICE (� O RESIr ENTIAL OFFICE y TENTH STREET RESIDENTIAL P A R K I N G OFFICES RESIDENTIAL y PAR KING FPAZIG OFF C E S O F F C E S O AMENDMENTS TO DA 04 -1 ONE BROADWAY PLAZA, LLC 1109 NORTH BROADWAY 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 EXHIBIT 2 75A-23 I r (I I z 6 VD•"yr4,v V�NVs P! A Q to K bob ."ova to"!5; is I ED WAy tong gy PHI a NEW T — ynyp W Sd ,11 p jut N. 1-4 41, in" py Up WHO A f Now : 10 Eel, SON 61-AMMUIS " Ralms ­" 1 T E 1. 1"": 1 aid Hr.,. a 'y 5 W . "IT "I na ov all i. M M 060, .04 1' ct am -am L) 151, Iwli k 01 j! A i"p If b pop f 0 M SO i it , I TH. Uia NH I Hill 11-M n IS NOW HIM HUI log CSP WH a I Hnd SUE ah 295 �J V� Pa_z ;z L ; mnumum lul i'V p Big; i- IRA!!�l Mum pit 9i -6 lk sp r. Ott A� awl OWN i cis 1D - 0 Irk 75 LEXH A-LBI 3 �4 = i _F. Hill IL El CC a Z � o� w o8 o � o 13 r--)r hov -D CZZ6V 'vNVviNVS N001,ObnOdO aNY 10393SVO YZI07d AVMGYOM�3NO y SOV)d booIj 6 a I Emus mot 0-11, LLLL F i I � �: r -7T T 6�� AMA Pap:2 W 75A-26 r--7-7-)(7-)r LWE6 V:)'VNV ViNvS HvId MOIJ ONIMd 1 5 V2V'1d AVMCIVOIF 3NO k 6 6 DEE O-C co r.1 �:—t— i�' Pap 3 of4 75A-27 a R" 101Z6 vD'VNV YINVS .. 3 V7vldlvMOVObB3NQ Nrld _ saamr,3lr3aNiMara �h��anes J JJ JJ JJ JJ JJ JJ J � JJJ W IJJJ JW U! JJJ W 4l NNW W W N z ms S,m SIBS 8j 0 g aW W ❑ _m� o� o ❑�g ❑ o 0 0 gg ❑ o o 10 how❑ ❑m, , i Qr W W4� W W( ✓i 4 V1 W W W W N W W W W N4'� ' V a o o ¢ o a c a o `o �' �' O O o 0 Q W W a a "1 ig i m w P Page 4 OM 75A-28 yr,.r V UJ V ` )f Z Zi Of W w ; v� uj Q w O� mx _ Lu Ouj c4i �° z- Z � 1 - J Ln w 2 v� EXHIBIT 5. i T�� �"*n"'L 4 »�� L„� �.r�,�-�q sY� 7 S C. ..� �1 -!{✓� �� �ai - � 'W Y ��,"•Y V$_'S.''„��T �L � mA7�� sS.` i0CL6 VD'VNV V1NVS 'y Ep r� VZVld AVMOVObe INC) a saanrAm13 y't ♦ �r 3��� C� � 3anF7nul5�xiye�a Er iCys - �;C� Q� Y E �6JiJ.Ala I _ �mI- ILl IIJ l i _ ILJ') [� J 7 IL—��iFJ d Y— —��- - I—i. wHIM d i OH 'Hill 4LH4 w jWRIR111 u J �I�ILJ�JII� LJLu uj All LU LL - MAHRIM LLJ F ,U �r 'rt�,� Fill j a II LJI 1 r, -I�7fn�rrp ��I�� - w� 5 -f 3 7 ► 0 ----- carrierjohnson + CULTUR3 architecture+any4onmenis a brand strategy>grapnics October 12, 2007 Mr.Michael F. Harrah CARIBOU INDUSTRIES 1103 North Broadway Santa Ana, CA 92701 RE: One Broadway Plaza LEED for Commercial Interiors Dear Michael, The attached checklist is being provided to demonstrate the advantage for LEED Certification by future tenant improvements to occur within the One Broadway Plaza office tower. The project is ideally situated and planned to take advantage of community density and public transportation requirements of LEED.As discussed,features will be incorporated into the Core& Shell to assure that goal, such as dual flush, electronic sensor controlled ultra low flow plumbing fixtures and waterless urinals resulting in a 60% reduction in water use over conventional fixtures. Reduction of electrical energy use by taking advantage of natural day lighting and providing motion sensor controlled lighting wherever possible,just to name a few. There are four levels of LEED certification: Certified; Silver, Gold and Platinum. The required number of points required to reach each level of certification is listed at the bottom of the checklist, with 21 points being the minimum requirement. Based on our experience with past projects, we have identified 24 points that are achievable by any tenant committed to pursuing certification. We have identified 12 addition points that could be achieved with greater commitment offering the opportunity for the tenant to obtain LEED Silver or even LEED Gold certification. Carrier Johnson is committed to addressing the environmental and economic results of our designs,taking into consideration the life-cycle cost and ecological impact of a project. Currently, 16 members of Carrier Johnson's design staff are LEED Accredited Professionals, and several are in the process of obtaining accreditation. These individuals facilitate and participate in the Integrated Design approach and will work with the project team to reach significant,cost-effective green design solutions as you have directed us to achieve. Sincerely, Gary T.fHipolite Project Manager cc: file 1301 third avenue son d.egc ca 92101 phone 629.239.23L:3 lax 619.239.6227 www.carrieryphnson.com I www.CUItUtede%Lgnlab.com EXHIBIT 6 PWIof7 75A-31 M C? CO N N N r N CV N N N CV CO 0 r N (14 N o a m m � c (cp L o a a' 13nl `md 8 3 o m o c E � a' � Nm Ma o m a or 3 yy 0. c c6 c o t) o E $ m G d > c U.) ? c CD a y � c ' am co r, a � w 3 (sE im a 8B -F -'0 M uj z T aC u " ' °c L w o r z -a !r r- c o o *' 0 :: o O y 0: z a SR a � z a: C C f— CD Lm d � x r QI E E C r- yU .. 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N r r N PW7of7 i REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 6, 2004 TITLE: APPROVED PUBLIC HEARING - ENVIRONMENTAL IMPACT ❑ As Recommended REPORT NO. 1999-01, AMENDMENT As Amended APPLICATION NO. 2004-01, GENERAL PLAN ❑ Ordfnanae on no Re din ❑ Ordinance on 2 Reading A1111OMMENT NO. 2004-01, ZONING ORDINANCE ❑ Implementing ResoluWn AKIINMCWT NO. 2 0 04-02, DBVELOPMMU Set Publle Hearing For AG EN39NT 2004-02 AND THiTATIW PARCEL KLP 2004-02 (COUNTY NAP NO. 2003-262) FOR THE ONE BROADWAY PLASA OFFIcE Tomm CONTINUED TO FILE NUMBER C TY MANAGER RECOMMENDED ACTION 1. Adopt a resolution certifying Final Environmental Impact Report No. 1999-01 and approve the Mitigation Monitoring Program as amended and Statement of Overriding Considerations. 02. Adopt an ordinance approving Amendment Application No. 2004-01 for the One Broadway Specific Development District [Specific Development No. 75 (SD-75) ] . 3 . Adopt a resolution approving General Plan Amendment No. 2004-01. 4. Adopt an ordinance approving Zoning Ordinance Amendment No. 2004-02 . 5. Adopt an ordinance approving Development Agreement No. 2004-01. 6. Adopt a resolution approving Tentative Parcel Map No. 2004-02 (County Map No. 2003-262) as conditioned. PLANNING COMMISSION ACTION On June 14, 2004, the Planning Commission recommended that the City Council adopt additional mitigation measures in response to comments from the Santa Ana Unified School District, adopt an ordinance approving Development Agreement No. 2004-01 and adopt a resolution approving Tentative Parcel Map No. 2004-01 by a vote of 6:1 (Sinclair opposed) (Exhibit B) . • EXHIBIT 7 l5E-'I EIR No. 99-01, AA No. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 ` July 6, 2004 Page 2 DISCUSSION Analysis of the Issues On February 23, 2004, the Planning Commission held a public hearing for the various entitlements associated with the One Broadway Office Tower proposed at 1109 North Broadway (Exhibit A) . At this hearing, 33 members of the public spoke on the project . At the conclusion of the public hearing, the Commission voted that the City Council certify the Final Environmental Impact Report No. 1999-01 and approve the Mitigation Monitoring Program and Statement of Overriding Considerations for the project. Additionally, the Commission recommended that the Council adopt an ordinance approving Amendment Application No. 2004-01 and Zoning Ordinance Amendment No. 2004-02 and adopt a resolution approving General Plan Amendment No. 2004-01 due to the numerous benefits the project would bring to the City. However, in addition, the Planning Commission recommended several amendments for the development. These amendments included the addition of five mitigation measures, the amendment of one mitigation measure, and changes to the specific Development. The changes recommended by the Planning Commission were: 1. The traffic barriers currently located within French Park shall become permanent; 2 . Westbound traffic on Washington Avenue must be diverted either north or south at Main Street; 3 . Eastbound traffic on Tenth Street must be diverted either north and south at Main Street; 4. The historic structure located at 1015 North Broadway be relocated to a City approved site and be provided with a permanent foundation and utility service; S. The historic structure located at 1109 North Broadway be relocated to a vacant lot in the City and be rehabilitated, including construction of a permanent foundation and utility service; 6. Amend Mitigation Measure No. T-1 to limit the start of construction on Saturdays to 8 a.m. l 75E-2 75A-39 i SEIR No. 99-01, AA No. 04-01, GPA No. 04-01., ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 3 7. Modify Item 4 of the Permitted Uses section of the Specific Development No. 75 document to state "cafes and restaurants, except fast food and/or take-out restaurants;" and, 8. Add Item 7 of the Conditionally Permitted Uses section of the Specific Development No. 75 document to state "fast food and/or take- out restaurants." On March 15, 2004, the City Council held a public hearing for the One Broadway development. After receiving public testimony on the project and a discussion by the City Council, formal action on the various entitlements under consideration was continued for 60 days. During this interim period, staff met with a newly created Council Ad Hoc Committee, which assisted in preparing the terms and conditions for the development agreement. Also, the Council identified specific issues and standards the development agreement should address including construction costs, preservation of historic structures, traffic mitigation measures, and benchmarks for issuance of building permits. Since the March 1.5, 2004 public hearing, staff has met on numerous occasions with the Ad Hoc Committee and the applicant. As a result of these meetings and extensive negotiations, a development agreement has been prepared (Exhibit B-1) . This agreement has incorporated the major issues raised by the City Council at the March City Council hearing as well as those issues raised by the Ad Hoc Committee. These issues include: 1. Prohibiting the issuance of any building permit for the Project until the Developer provides evidence of binding commitments for lease of not less than 50 percent of the net leasable area in the Project from tenants who would qualify as "Investment Grade Tenants" (BBH-or greater) as rated by either Standard & Poor's or Moody's rating agencies. Non-rated publicly held, or private companies with a rating of BB or BBt may meet this requirement by providing a "Shadow Rating" from either agency depicting a minimum of a neutral credit outlook. Law firms shall provide evidence of a rating of "AV" from Matindale-Hubbell or equivalent rating agency. Binding commitments to lease shall be in a form and content normally accepted by conventional lending institutions and subject to the review and approval of the City's Executive Director of Planning and Building which shall not be unreasonably withheld; 75E-3 EIR No. 99-01, AA NO. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 5, 2004 Page 4 2. Requiring the developer to aubmit evidence, for the provision of the payment of "Prevailing" and/or "Area Standard Wages' as appropriate, that it has entered into a labor agreement with the Los Angeles and Orange Counties Building and Construction Trades Council. Said agreement shall also include provisions that encourage the referral and utilization, to the extent permitted by law, of qualified residents as journeymen, apprentices and trainees. An executed copy of the agreement shall be submitted to the City prior to the issuance of building permits; 3. Prohibiting the developer to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments, or other assistance for the development of the Project; 4. A provision that all offeite mitigation measures identified in the entitlements shall be specifically listed and incorporated into the Agreement (the "Project Mitigation MeasuresO) . Developer shall deposit cash, security in a form acceptable to the City's Executive Director of Public Works Agency, or other reasonably acceptable proof of ability to perform to pay for the Project Mitigation Measures (including traffic studies) at the time called for in the entitlement, and in any event, prior to the issuance of building permits. Any deposit shall be supplemented to cover the actual costs incurred. The Public Works Agency shall provide to the Developer an estimate of the Project Mitigation Measures which shall include land acquisition and construction costs pertaining to the public improvements required of the Project; 5. Defining and requiring core construction costs of the Project shall not be less than the RS Means "Medium^ square footage estimate, including the installation cost of all mechanical and electrical equipment for a Class A high rise office building; 6. Requiring the drop off/pick up area for Orange County Nigh School of the Arts (OCHSA) be approved by the City Engineer and implemented before any demolition or construction is initiated for the Project; 7. Relocating the historic structure located at 1015 North Broadway (Twist-Basler House) to Cabrillo Park at the sole expense of the Developer. Additionally, the structure shall be set upon a new foundation, supplied with all necessary utilities and shall be rehabilitated to City standards. The cost of rehabilitation shall serve as a credit against the Developers Art and Culture fee obligation; and 75E,4 75A-41 •EIR No. 99-01, AA No. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 5 8. Retaining the structure at 1109 N. Broadway (Koenig House) its current location. The Developer shall be responsible for the rehabilitation of the structure per City standards. Retaining and rehabilitating the Koenig House at its current location will enhance historic preservation and strengthen the streetscape character of Broadway. In order to maintain the Koenig House on-site, egress from the parking structure onto Broadway has been modified to reduce the two egress lanes to a single lane with right-turn restrictions, which will include the construction of a landscaped median in Broadway. This will also allow the elimination of the previously proposed traffic signal. Staff from the Public Works Agency has evaluated the effects of these circulation changes, including an analysis of the levels of service of affected intersections, and found that they will result in no new significant traffic impacts. In fact, retaining the Koenig House will lessen the project's environmental effects by preserving, rehabilitating . and re-using a significant historic resource. The Mitigation Monitoring Program has been revised to reflect these changes. More specifically: Traffic Measure No. 18 (T-18) has been revised to eliminate the traffic signal and require a landscaped median in Broadway to prevent left turns; and, Cultural Resources Measures Nos. 1, 2, 4 and 9 (CR-1, CR-2, CR-4 and CR-9) have been revised to reflect the change requiring the Koenig House to be retained at its present location and to be rehabilitated by the applicant. The development agreement addresses the issues raised by the City Council at their March meeting. The tentative parcel map, which merges several existing lots on the project site, is in compliance with all applicable State and local regulations. The Final Environmental Impact Report, Mitigation Monitoring Plan, Findings of Fact and Statement of Overriding Consideration for One Broadway Plaza has been revised to address the inclusion of a Development Agreement, the addition of mitigation measures to reduce impacts to historical resources and pedestrian safety, the construction of a student drop off for Orange County High School of the Arts and modifications to the egress of the project parking structure. Attached are the revisions to the Final Environmental Impact Report, Mitigation Monitoring Plan, Findings of Fact and Statement of Overriding Consideration. 75E-5 EIR No. 99-01, AA No. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 6 FISCAL IMACT There is no fiscal impact associated with this action. Stephen G. Har ng Executive Director Planning & Building Agency VF\VC:rb vt%reports%"wtotrg9-*I"&4QDio4-o142=04-asaa*G-altyno4-oa.o1-as-ol.ap 76E-6 ORDINANCE NO. NS -2656 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, AND 845 BROADWAY, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTLON 1: The City Council hereby finds,determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has,following a duly noticed public hearing. on June 14, 2004 recommended approval of this Development Agreement. E. Entering into this Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of One Broadway Plaza 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 July 8,2004, approved a 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. SECTION 2: Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby Ordinance No. NO-2656 Page 1 75E-30 . authorized and directed to cause this Development Agreement to be recorded with the County Recorders Office. SECTION A: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason hell 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 , 2004 Miguel A. Pulldo Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councllmembers Ordinance No. N9- Page 9 75E-31 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. NS2556 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 ordim=e No. N9-2556 Page 3 75E-32 'CONFORM EDCOPY Not Compared with Original A-2004-153 Racorded in Official Records, Orange County RECORDING REQUESTED BY Tom Daly.Clerk-Recorder AND WHEN RECORDED MAIL TO: f 11111+111I011I111W 111I1111111114NO FEE Clerk of the Council 2005000414751301:26pm 05/31/05 City of Santa Ana 11691 Al2 45 20 Civic Center Plaza, M-30 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE S 6103 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and ONE BROADWAY PLAZA,LLC, 1200 N.MAIN,LLC,and 845 BROADWAY,LLC Dated: July 19,2004 75A-47 i DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN,LLC,and 845 BROADWAY,LLC This DEVELOPMENT AGREEMENT("Agreement')is entered into between THE CITY OF SANTA ANA,a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California("City'l on the one hand,and ONE BROADWAY PLAZA,LLC, 1200 N. MAIN LLC,and 845 BROADWAY LLC,each of which is a California Limited Liability Company(collectively referred to herein as"Owner"or "Property Owner"),on the other hand. 1. RECITALS. The Agreement is entered into with reference to the following facts: 1.1 Agreement. The purpose of this agreement was to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75,Environmental impact Report No. 99-01,General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02(the"Pre-Existing Approval Entitlements'). 1.2 Cade Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with City's General Plan,applicable Specific Plans and Specific Development District No. 75. (3) This Agreement will permit achievement of goals and objectives as reflected in the City's General Plan,all applicable Specific Plans and Specific Development District No. 75. (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. 1 i (5) This Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Agreement are of regional significance,relate to existing deficiencies in public facilities,require Owner to contribute a greater percentage of benefits than would otherwise be required and/or pay such benefits sooner,and represent benefits which would not otherwise be required as part of the development process. 1.2 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in City of Santa Ana,California,legally described on Exhibit A attached hereto and incorporated herein,and graphically described on Exhibit B attached hereto and incorporated herein(hereinafter the"Property). The Property is approximately 4.339 acres in size and is currently occupied by commercial and residential development. 1.3 Interest of Owner. Owner hereby represents that it has an equitable and legal interest in the Property. Owner further hereby represents that it has approved this Agreement and is authorized to enter into this Agreement. 1.4 Planning Commission-Council Hearings. On June 14,2004,the Planning Commission of the City("Planning Commission"),after giving notice pursuant to Government Code Sections 65090 and 65091,held a public hearing to consider the Owner's application for this Agreement_ The Planning Commission recommended to the City Council of City that it execute this Agreement. On July 6,2004,the City Council of the City of Santa Ana C'Council'), after providing notice as required by law,held a public hearing to consider the Owner's application for this Agreement. 1.5 Council Findings. The Council finds that this Agreement is consistent with the General Plan,applicable Specific Plan(s)as well as all other applicable ordinances, plans,policies and regulations of the City. 1.6 City Ordinance. On July 19,2004,the Council adopted Ordinance No rS-2G56 approving this Agreement. The ordinance and this Agreement becomes effective thirty(30)days thereafter. 2. DEFINITIONS. In the Agreement,unless the context otherwise requires: 2.0.5 "Force Ma jeuxe"shall mean delays of performance by either party hereunder due to war; insurrection;strikes; lockouts; labor disputes; riots, floods; earthquakes; fires;serious rain or inclement weather;casualties,acts of God;acts of the public enemy; epidemics; quarantine restrictions;freight embargoes; lack of transportation;acts of the other party-,acts or failure to act of the City or any other public or governmental agency or entity(other than acts or failure to act of the City shall not excuse performance by the City);litigation or arbitration; referendum;or any other cause beyond the control,or without the fault of the party claiming an extension of time to perform; provided that notice by the party claiming such 2 i extension is sent to the other party within thirty(30)days of the commencement of the cause or event resulting in such delays. 2.1 "Of#site Mitigation Measures"means all those mitigation measures not on the Property applied to the Project as either mitigation measures or conditions of approval, and which are set forth in greater detail in paragraph 5.1.1 below,and Exhibit C to this Agreement. 2.2 "Property Owner"or"Owner"means One Broadway Plaza,LLC,a California Limited Liability Company, 1200 N.Main LLC,a California Limited Liability Company,and 845 Broadway LLC,a California Limited Liability Company,being the person, persons,or entity collectively having a legal or equitable interest in the Property. 2.3 "Property"is the real property described in Exhibit A and referred to in Exhibit B,bounded by Broadway on the west,Washington Avenue on the north,Sycamore Avenue on the east and Tenth Street on the south. 2.4 "Project"is the development of a 37 story,518,000 square foot,Class A office building and associated parking structure and ancillary commercial development on the Property as generally set forth in Specific Design Zoning Designation SD-75,Environmental Impact Report No. 99-01,General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02. The parties to this Agreement acknowledge and agree that to the extent set forth on the attached Exhibit D future discretionary approvals are required for the development of the Project on the Property,that this Agreement does not apply or in any way constrain the City's discretion as to such future discretionary approvals,and that such approvals if granted shall at that time be incorporated into the definition of the word`Project"as used herein. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement,incorporated herein by this reference as though fully set forth, and are identified as follows: Exhibit Referred to T�P_GS AYIAT DS9CIIptinn in Sectinn A Property Legal Description 1.2 B Property Graphical Description(Site Plan) 1.2 C Remaining Offsite Mitigation Measures 5.1.1 D Remaining Discretionary Approvals 5.1 E Scarifying Area 5.9(3) 3 i 4. GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section 8.3 below,no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of this Agreement shall for seven years;provided,however that the Owner may request one two-year extension from the Executive Director of the Planning and Building Agency,which request shall not be unreasonably denied. Nothing herein shall be deemed to apply,however, to future discretionary acts related to the Project,as set forth in Exhibit D, which Owner has not obtained as of the effective date of this Agreement,or changes in the Project proposed by Owner during the term of this Agreement inconsistent with the Pre-Existing Approval Entitlements, 4.2.1 Tolling of Agreement During Force Majeure Event. Performance by Owner or the City shall not be deemed to be in default,and performance and the term of the Development Agreement shall be tolled,where delays or defaults are due to existence of a Force Majeure. Any such tolling shall extend only for the duration of the cause of the delay. Each party claiming a Force Majeure shall,within thirty(30)of discovery of a claimed Force Majeure, notify the other party in writing of the Force Majeure and its claimed duration. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part,to any person, entity(public or private),partnership,joint venture,firm or corporation at any time during the term of this Agreement;provided,however,the rights of Owner under this Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties,obligations,and liabilities arising from this Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment,execution,or proceedings under any provision of the Bankruptcy Act,and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. Owner may assign it rights,duties and obligations under this Agreement to an entity controlled fifty-one percent(51%)by Michael F.Harrah without the City's approval, but only upon written notice to the City. During the term of this Agreement,any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of(honer shall have all of the same rights,benefits,duties,obligations,and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold,mortgaged,hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement,the obligations of Owner and the transferee or assignee shall be joint and several. 4 i 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled only by the mutual consent of the parties,but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term"Agreement"or"Development Agreement"as used herein shall include any amendment properly approved and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4,this Agreement is enforceable by any party to the Agreement in any manner provided by law. The remedies provided in Section 7.4 of this Agreement shall not include,and City shall not be liable for,any action in damages,except for damages solely caused by its willful or intentional conduct, or any costs or attorney's fees resulting from any dispute,controversy, action or inaction,or any legal proceeding arising out of this Agreement,except where such costs and fees are incurred solely caused by the City's willful or intentional conduct. 4.6 Hold Harmless. Property Owner agrees to and shall hold City,its officers,agents and employees harmless from liability.(1)for damages,just compensation, restitution,judicial or equitable relief arising out of claims for personal injury,including health, and claims for property damage,which may arise from the direct or indirect operations of the Property Owner or their contractors,subcontractors, agents,employees,or other persons acting on their behalf which relates to the Project;and(2)from any claim that damages,just compensation,restitution,judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. The foregoing shall exclude claims based on the City's own negligence or intentional conduct.Property Owner agrees to pay all costs for the defense of the City and its officers,agents and employees regarding any action for damages,just compensation, restitution,judicial or equitable relief caused or alleged to have been caused by reason of Property Owner's actions in connection with the Project,any claims arising out of this Agreement,or any approval or certification by the City relating to the Project(but excluding any third party costs, incurred by the City,including fees and costs for outside counsel and consultants). This hold harmless agreement applies to all claims for damages,just compensation, restitution,judicial or equitable relief suffered,or alleged to have been suffered,by reason of the events referred to in this paragraph or due by reason of the terms of,or effects,arising from this Agreement or any approval or certification by the City relating to the Project,regardless of whether or not the City prepared,supplied or approved this Agreement,plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify,hold harmless,and pay all costs for the defense of the City,excluding fees and costs for special counsel to be selected by the City or other outside counsel or consultants, if any,regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project,or asserting that damages,just compensation,restitution,judicial or equitable relief is due to personal or property rights by reason of the terms of,or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4.7 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure,to the parties' successors in interest. ft 4.8 Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 4.9 Notices. Any notice,tender,demand,delivery,or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail,postage prepaid,or sent by telefacsimile or other telegraphic communication in the manner provided in this Section,to the following persons: If to City, to: Executive Director,Planning and Building Agency City of Santa Ana 20 Civic Center Plaza M-20 P.O. Box 1988 Santa Ana,California 92702 telefacsimile(714)667-1461 and, City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O.Box 1989 Santa Ana,California 92702 telefacsimile(714)647-6515 If to Owner, to: One Broadway Plaza,LLC 1200 N. Main LLC 845 Broadway LLC 1200 North Main Street, Suite 900 Santa Ana,California 92701 attn: Michael Harrah telefacsimile(714)543-9972 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender,demand,delivery,or other communication shall be addressed and transmitted to the new address. If sent by mail,any notice,tender,demand,delivery,or other communication shall be effective or deemed to have been given three(3)days after it has been deposited in the United States mail,duly registered or certified,with postage prepaid,and addressed as set forth above. If sent by telefamimile,any notice,tender,demand,delivery,or other communication shall be effective or deemed to have been given twenty-four(24)hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends,federal, state,County,or city holidays shall be excluded. 6 i 5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules,Regulations and Policies. The rules,regulations and official policies governing the permitted use(s) of the Property,with respect to and only with respect to the permitted use(s)density, height, size of structures and intensity of use of the Property, shall be the Pre-existing Approved Entitlements and all those rules,regulations,and policies applicable to the Property as of the effective date of this Agreement;provided,however, that nothing in this Agreement shall be deemed to apply to future discretionary approvals pursuant to the California Street Vacation Act, and other items to be reviewed and approved, approved with conditions,or denied,by the Planning Commission pursuant to the terms of the Pre-Existing Approval Entitlements as set forth in Exhibit D to this Agreement, and that this Agreement does not apply or in any way constrain the City's discretion as to such future discretionary approvals. 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City are as set forth in Exhibit C to this Agreement. The design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C prior to issuance of final map and building permit. Owner shall have one year from the effective date of this Agreement pursuant to section 1.6,above,to acquire the real property referenced in paragraph 5.a. and 8 of Exhibit C and transfer title to the City,except as to the roundabout, for which Owner shall secure and transfer to City an easement (or other right to construct,maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such offsite mitigation measures(including traffic studies)at the time called for in paragraphs 5.a.,8 and 9 of Exhibit C. For all other items specified in Exhibit C, security in the form of bonds(i.e., a payment,a performance and a material bond)or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided,together with an offsite subdivision improvement agreement,prior to recordation of final map. For those offsite mitigation measures identified in paragraphs 1-4,5.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit;or establishes an irrevocable,escrowed cash account in a form reasonably acceptable to the City Attomey of City,in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures;provided,however,that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security.Any deposit shall be applied to such costs and shall be,within thirty(30)days written request to Owner,supplertiented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C to owner within thirty(30)days, subject to City accounting practices, after completion of all items referenced in Exhibit C and issuance of a Certificate of Occupancy for the Project. 7 i 5.2 Exclusion from Existing Rules,Regulations and Policies. Pursuant to Government Code Section 65866,City retains the right to enact police power regulations in a non-discriminatory manner on the following matters not covered by section 5.1 of this Agreement: a. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with section 5.1 of this Agreement Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically,but without limitation on the foregoing,such non-conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code (including amendments to such codes); (3) Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city-wide basis; and (4) Procedural rules of general City-wide application. 5.3 Design and Construcdon Standards and Specifications. The design and construction standards and specifications for all Project construction shall be subject to applicable design standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 Reserved. 5.5 Future Discretionary Approvals. This Agreement shall not prevent the City,when considering requests for discretionary approvals not covered by Section 5.1 of this Agreement subsequent to the effective date of this Agreement, from applying new rules, regulations,and policies which are applicable to the Property,nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules,regulations, and/or policies;provided however, that such new rules,regulations,and official policies arc of general application to all development within the City and are not imposed solely with respect to the subject property. In addition,this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public_ This police power,exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. However, except as provided in section 5.1,above,the City acknowledges S i that it shall not apply to the Project any subsequently adopted ordinance,regulation or policy that would adversely affect the design or reduce the size of the project,or the timing or sequencing of construction of the Project(including without limitation, through allocation of square footage or floor area allocation of water and sewer permits,school and traffic capacities and modifications of floor area rations to open space or other public improvements,and revisions to historical designations). 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property,including but not limited to fees and charges for applications,processing, inspections,plan review,plan processing,and/or environmental review,which are existing or may be revised or adopted during the term of this Agreement shall apply to the development of the Property.No newly adopted fee or charge imposed solely on commercial buildings exceeding ten(10)stories in height or one hundred thousand(100,000)square feet size shall apply to development of the Property,unless said fee or charge is mandated by federal or State law. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs,taxes whether special or general, or assessments (hereafter collectively referred to as"fees')adopted by the City after the effective date of this Agreement,which shall be applicable to the Project or the Property provided that they(1)are standard fees applicable to a]1 development in the City(although actual fee rates may vary within the City where bona fide Citywide fee zones have been established),(2) are not applicable primarily or only to this Project,or(3)are not imposed to duplicate any project design features conditions of approval,Agreements,or mitigation measures already contained in Environmental Impact Report No. 99-01 or this Agreement. 5.8 Condition Precedent to Issuance Of Any Building Permit. The Owner shall not be issued any building permit,or rough grading permit permitting grading exceeding twelve inches(12")in depth(except as provided in section 5.9(3),below),for the Project until it provides evidence that the Owner has obtained binding commitments for lease of not less than 5(Wo of the net leasable area in the Project from tenants who would qualify as "Investment Grade Tenants"(BBB-or greater)as rated by either Standard&Poor's or Moody's rating agencies. Non-rated publicly held,or private companies with a rating of BB or BB+may meet this requirement by providing a"Shadow Rating"from either agency depicting a minimum of a neutral credit outlook. Law firms shall provide evidence of a rating of"AV"from Martindale- Hubbell or equivalent rating agency. Binding commitments to lease shall be in a form and content normally accepted by conventional lending institutions and subject to the review and approval of the City's Executive Director of Planning and Building,which approval shall not be unreasonably withheld. Owner shall have the right to commence demolition of existing non- historic buildings,and removal and relocation of historic buildings and rough grading(only to the twelve inch(12")depth permitted by the first sentence of this section)prior to the review and approval of the City pursuant to this section. 5.8.1. Payment Of Prevailing Wage. For the provision of the payment of "Prevailing"and/or"Area Standard Wages"as appropriate, the Owner shall submit evidence that it has entered into a labor agreement with the Los Angeles and Orange Counties Building and 9 V i Construction Trades Council. Said agreement shall also include provisions that encourage the referral and utilization,to the extent permitted by law,of qualified residents as journeymen, apprentices and trainees. An executed copy of the agreement shall be submitted to the City prior to the issuance of building permits. 5.8.2. No Redevelopment Subsidy. The Owner shall not be entitled to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments,or other assistance for the development of the Project. Failure to comply with this provision shall be deemed in and of itself to constitute a failure to in good faith comply with terms or conditions of this Agreement pursuant to the terms of Government Code section 65865.1. 5.8.3 Minimum Cost of Construction. The core construction costs for the office building shall not be less than the RS Means"Medium"square footage estimate, including the installation cost of all mechanical and electrical equipment for a Class A high rise off ce building. 5.8.4. OCHSA Drop-Off Site. The drop off/pick up area for the Orange County High School for the Arts("OCHSA'J shall be approved by the City Engineer and be implemented by the Owner at its sole cost and expense before any demolition or construction is initiated for the Project. 5.8.5. Union Janitorial Service. Prior to receiving a Certificate of Occupancy, the Owner shall demonstrate to the City's Executive Director of Planning and Building evidence that it has entered into an agreement with a union janitorial service company for the provision of janitorial and maintenance services. 5.9 Historic Structures on the Property. (1) The Owner shall be responsible for the rehabilitation of the historic structure located at 1109 North Broadway(Koenig House)per City standards. (2) At the sole expense of the Owner the historic structure located at 1015 North Broadway(Twist-Basler House)shall be relocated to Cabrillo Park,set upon a new foundation,and supplied with all necessary utilities. The structure shall be rehabilitated to City standards by Owner at its sole cost which shall,however,be an offset from the Arts and Culture Fees paid by Owner for the Project. (3) After complying with the relocation obligations of subsections 5.9(1), if necessary,and 5.9(2),Owner may,notwithstanding the provisions of section 5.8 above, scarify the soil in the Scarifying Area(shown on Exhibit E to this Agreement)to a depth of three feet(3.0')and drive piles in the area shown on Exhibit E to support the eventual 37-story office tower. The scarifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency,and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District,Orange County High School of the Arts,and El Sol Academy. The scarified area shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and,if a building permit has not been issued and construction of the Project has not commenced within ninety(90)days 10 i thereafter, landscaped,irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 5.10 Moratoria. Moratoria enacted by the City for the public health,safety, and welfare, to the extent permitted by section S.S.,above,which are imposed on the Property or Project,shall toll the time periods set forth in this Agreement. City shall not apply to the Property or Project any moratoria which is adopted and which,either facially or as-applied,has no application except to(or primarily to)the Property or Project. 5.11 City to Receive Contract Documents. Owner shall furnish City,upon written request, copies of contracts and supporting documents relating to the Project. 5.13 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals,and in no event shall such conditions be affected by the termination,cancellation,rescission,revocation, or default or expiration of this Agreement. 5.14 Compliance With Governmental Requirements. Owner shall cant'out the design,construction, and operation of the 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,and of any other political subdivision,agency,or instrumentality exercising jurisdiction over the City, the Owner or the Property,including all applicable federal and state occupation,safety and health laws,rules,regulations and standards, applicable state and labor standards,applicable prevailing wage requirements, 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. ("Governmental Requirements'). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve(12) months during the term of this Agreement,review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1,as amended,Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall,upon written request by Owner,issue a Review Letter to Owner(the"Letter')stating that based upon information known or made known to the City Council,the City Planning Commission and/or the City Planning Director,the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 11 i 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (1) If a warranty,representation,or statement made or furnished by Property Owner to the City is false or proves to have been false in any material respect when it was made; (2) A finding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; (3) Failure to comply in good faith with Governmental Requirements, (4) Any other event,condition,act,or omission which materially interferes with the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon the occurrence of default,City shall give Property Owner (the"defaulting party l ninety(90)days written notice specifying the nature of the alleged default and,when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said ninety(90)day cure period without cure,City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said ninety(90) day cure period. For defaults that cannot be cured within said ninety(90) day cure period,City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time following said ninety(90) day period Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default,nor shall it change the time of default. (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. (3) Non-performance shall not be excused because of a failure of a third person. 12 i (4) An express repudiation,refusal,or renunciation of the contract,if the same is in writing and signed by the Property Owner,shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Properly Owner be entitled to any damages against City upon termination of this Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure,correct,or remedy any default or breach,to specifically enforce any covenants or Agreements set forth in the Agreement,or to enjoin any threatened or attempted violation of the Agreement;or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California,Southern.Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner,in any manner,at Owner's sole and absolute discretion,from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage,deed of trust,or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall,upon written request to City,be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within the same time period as provided in section 7.2, above,and said mortgagee or beneficiary shall have the right to cure such default within the same time and such additional time as may be necessary to exercise it rights as a secured creditor; provided said mortgagee or beneficiary promptly and diligently exercises such remedies. 8.3 Releases. City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property,or any portion thereof,City may execute and deliver to Owner appropriate release(s)of further obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect the release. 13 I 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine;"shall'is mandatory;"may"is permissive. If there is more than one signer of this Agreement,their obligations are joint and several. 9.2 Entire Agreement,Waivers and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner,in a form suitable for recording in the Official Records of Orange County,California. Within ten(10)days following the effective date of this Agreement,a copy of this Agreement shall be recorded in the Official Records of Orange County,California. Upon the completion of performance of this Agreement or its revocation or termination,an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County,California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a)the Project is a private development for purposes of Government Code Section 65864 es seq.;(b)City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project;and(c)Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define,explain,modify,construe, limit, amplify,or aid in the interpretation,construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with,deal with each other in good faith,and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected 14 i governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans,maps,or permits approved by the City,the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy,and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty(30)days,meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement,the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council,at such hearing,shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County,California,within ten(10) days following the effective date of this Agreement. IN WITNESS WHEREOF,this Agreement has been executed by the City of Santa Ana,acting by and through its Mayor,pursuant to Ordinance No. its-2656 , authorizing.such execution,and by Property Owner. Dated this L day of &A 2004. THE CITY OF SANTA ANA By DAVID 9 REAM City Manager Approved as to Form: AT[10 y Py97RM�A E M,'ALf . JO PH . FI.E HER CLAW OF >�COMMCOM Atto ey 15 f ONE BROADWAY PLAZA,LLC, By: 4 MIC L F. MadagingMember 1200 N.MAIN,LLC By: - �;e MI Managing Member 845 BROADWAY LLC By. MIC .H Managing Member 16 i CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange }SS. On August 31, 2004,before me, Claudia M.Fernandez-Shaw, No2g Public Name and Tithe of Ul6cer(e.g„Jame DoF Notary Pubtk') personally appeared David N. Ream K-IK.1of8i-0) [✓personally]mown to me ❑ proved to me on the basis of satisfactory evidence to be the person whose namea subscribed to the within instrument and acknowledged to me th executed c�at�N kt Emmo".88Awl the same in ,11111=4@4, authorized Jr.oeefs S%Wn#133M74 capacity**, and that by hO�M�ap CCU* � signature(lyon the instrument the person ,or MYCMM.Expk=J A2= the entity upon behalf of which the pin acted,executed the instrument. HNESS y hand and official seal. 4.'�-r J- tiipr W.o!�+r t'ut+lio Pl.pp Nq.ry Sul Ae..a OPTIONAL Aough the information below is not required by law.it may prove valuable to persons relying on the document And could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies)Claimed by Signer Signer's Name: ❑Individual Top of thumb mere ❑Corporate Officer—Title(s): ❑Partner-- ❑ Limited❑ General ❑Attorney in Fact ❑Trustee HGuardian or Conservator Other: i State of California County of Orange }SS. On 7// before me, Rosa S.Barela.NOMa Nblic Date Name and Title of Otlfcer(es.,"Jane Doe.Notary Public') personally appeared Michael F.Harrah Idow aowto Erpersonally known to me proved to me on the basis of satisfactory evidence to be the person(&) whose names) R= subscribed to the withi instrument and acknowledged to me that etthey executed Rosa S.sARFu the same in hiAerltheir authorized Comnnlaslon E 1303103 capacity(im), and that by 17,Notary PubRe caMbMis signature(e) on the instrument the person(, or Coun MI►i.arrOran�w�raf►ty �r the entity upon behalf of which the person(s) acted,executed the instrument. WITNESS my hand and official seal. C?k�. jz- �. Pb"NOW V sd show State of California County of Orange SS. On I ��'0 4 before me, Rosa S.Barela,Notary Public 'Date Name and Tick of onka(e.&.Jana Dae,WoWy Pubtie) personally appeared Michael F.Harrah N—Wu personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Qm subscribed to the within instrument and Ras"S.B"RIUw acknowledged to me that 4OWmMzy executed (:orntllaalon IF 1303103 Notary Publla-Calibrnla the same in Derr authorized Orange Caurtgl capacity(i O, and that by Cwbalheir- MYCOM 'E0°` signature(s) on the instrument the person(s), or the entity upon behalf of which the person(a) acted,executed the instrument. VIMNENES�S my hand and official seal. ra"KMn srrAbM f State of California County of Orange }SS. On 7f 10 f C before me, Rosa S. Barela. Public Date Name and Title of OfFwer(e.&,"lane Doe.Nervy Public") personally appeared Michael F.Harrah NrWoo"0wq personally known to me proved to me on the basis of satisfactory evidence to be the person(a) whose names) @m subscribed to the within instrument and s.BAREu► acknowledged to me that h�'albdtlM executed _ Commission s 1301113 the same in �e>rr ,�a^uthorized Notary public-Caftrala capacity(Wa and that .by hwAhair Orange County WCotrMi30WMyA2= signature(s),on the instrument the person(s), or PIRO the entity upon behalf of which the persons) acted,executed the instrument. WITNESS my hand and official seal. ai,.r.ertta•rtw+r State of California County of Orange }SS. On before me,_ Due Nnmc and Title of Ofri=(e g.,"lane Doe,Notary Public') personally appeared "ammetskWo Hpersonally known to me 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 halshe/they executed the same in his/her/their authorized capacity(ies), and that by his/herhheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ow—ena—Vn tRrc.tyerr s.t wa.. i ORDER NO. 7002103-23 EXHIBIT"A" (LEGAL DESCRIPTION) PARCEL A; THAT PORTION OF LOT 8 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF WEST STREET (NOW KNOWN AS BROADWAY), WITH THE SOUTH LINE OF WASHINGTON AVENUE, AS SHOWN ON SAID MAP; THENCE EAST 126.00 FEET ALONG SAID SOUTH LINE TO THE NORTHWEST CORNER OF THE LAND DESCRIBED IN THE DEED FROM A. S. DUNHAM TO ROBERT MC FADDEN;THENCE SOUTH 90.00 FEET ALONG THE WEST LINE OF SAID LAND; THENCE WEST 126.00 FEET, PARALLEL WITH SAID SOUTH LINE OF WASHINGTON AVENUE, TO SAID EAST LINE OF WEST STREET; THENCE NORTH 90.00 FEET ALONG SAID EAST LINE TO THE POINT OF BEGINNING. PARCEL 8: INTENTIONALLY OMITTED PARCEL C: INTENTIONALLY OMITTED PARCEL 0: THAT PORTION OF LOT 6 OF WALTON'S ADDITION TO TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 14 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT 6, AND RUNNING THENCE EAST, PARALLEL WITH THE NORTH LINE OF SAID LOT 6 A DISTANCE OF 164.84, MORE OR LESS, TO THE NORTHWEST CORNER OF THE LAND CONVEYED TO ARNOLD 0. WICKLUND AND WIFE, BY DEED RECORDED IN BOOK 883 PAGE 195, OFFICIAL RECORDS; THENCE SOUTH ALONG THE WEST LINE OF SAID LAND CONVEYED TO WICKLUND AND WIFE 60 FEET; THENCE WEST, PARALLEL WITH THE NORTH LINE OF SAID LOT 6, 164.84 FEET, MORE OR LESS TO THE WEST LINE OF SAID LOT 6, AND THENCE NORTH ALONG THE WEST LINE OF SAID LOT 6, 60 FEET TO THE POINT OF BEGINNING. EXCEPT THE WEST 37.1 FEET INCLUDED IN BROADWAY STREET. Page 4 i ORDER NO. 7002103-23 PARCEL E: BEGINNING AT A POINT ON THE WEST LINE OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, 74 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT 6; FOR PURPOSE OF THIS DESCRIPTION, THE CENTER LINE OF WEST STREET, AS SHOWN ON SAID MAP IS CONSTRUED TO BE THE WEST LINE OF SAID LOT 6; RUNNING THENCE 159 FEET, MORE OR LESS,TO A POINT 155 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH 50 FEET;THENCE WEST 159 FEET; THENCE NORTH 50 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THE WEST 37.1 FEET INCLUDED IN BROADWAY. PARCEL F: COMMENCING AT A POINT ON THE WEST LINE OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, 124 FEET SOUTH OF THE NORTHWEST CORNER OF LOT 6; RUNNING THENCE EAST 162 FEET TO A POINT 152 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH 56 FEET; THENCE WEST 162 FEET; THENCE NORTH 56 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM,THE WEST 37.1 FEET"INCLUDED IN BROADWAY. PARCEL G: THAT PORTION OF LOTS 2, 3 AND 6 OF WALTONS ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF TENTH STREET, AS GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 105, PAGE 386, OF DEEDS, RECORDS OF SAID ORANGE COUNTY, CALIFORNIA, WITH THE EAST LINE OF SAID LOT 2, AND RUNNING THENCE NORTH ALONG THE EAST LINE OF SAID LOTS 2, 3 AND 6, A DISTANCE OF 386 FEET TO THE NORTHEAST CORNER OF THE LAND DESCRIBED IN THE DEED TO BASLER, INC., A CORPORATION, RECORDED APRIL 20, 1956, IN BOOK 3481 PAGE 414, OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE WEST ALONG THE NORTH LINE OF SAID LAND, 152 FEET TO THE EAST LINE OF THE LAND DESCRIBED IN THE DEED TO HERMAN H. BASLER AND WIFE, RECORDED JUNE 29, 1948, IN BOOK 1660 PAGE 544, OF OFFICIAL RECORDS OF ORANGE COUNTY; THENCE NORTH ALONG SAID EAST LINE, 9 FEET TO THE NORTHEAST CORNER OF SAID LAND; THENCE WEST ALONG SAID NORTH LINE AND THE NORTH LINE OF SAID LAND DESCRIBED IN DEED TO HERMAN H. BASLER AND WIFE, RECORDED MAY 20, 1948, IN BOOK 1639 PAGE 310, OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, 162 FEET, MORE OR LESS, TO THE WEST LINE OF SAID LOT 6; THENCE SOUTH ALONG THE WEST LINE OF SAID LOTS 6, 3 AND 2, A DISTANCE OF 395 FEET, MORE OR LESS, TO SAID NORTH LINE OF TENTH STREET; THENCE EAST ALONG THE NORTH LINE OF TENTH STREET,TO THE POINT OF BEGINNING. PARCEL H: BEGINNING AT A POINT 156-1/2 FEET SOUTH AND 162 FEET EAST OF THE NORTHWEST CORNER OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS, OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT OF BEGINNING BEING 152 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH 32- 1/2 FEET; THENCE WEST 152 FEET; THENCE NORTH 32-1/2 FEET TO THE POINT OF BEGINNING. Page 5 ORDER NO. 7002103-23 EXCEPTING THEREFROM,THE EAST 30 FEET INCLUDED IN SYCAMORE STREET. PARCEL I: BEGINNING AT A POINT 134 FEET SOUTH AND 162 FEET EAST OF THE NORTHWEST CORNER OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT BEING 152 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE EAST 152 FEET TO THE EAST LINE OF SAID LOT 6; THENCE SOUTH 32.1/2 FEET; THENCE WEST 152 FEET; THENCE NORTH 32-1/2 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THE EAST 30 FEET INCLUDED IN SYCAMORE STREET. PARCEL I: THAT PORTION OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12 PAGE 98 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE EAST LINE OF SAID LOT 6 OF WALTON'S ADDITION, WHICH SAID POINT IS 74 FEET SOUTH OF THE NORTHEAST CORNER OF SAID LOT 6, AND WHICH SAID POINT IS ALSO THE SOUTHEAST CORNER OF THAT TRACT OF LAND CONVEYED TO L.G. BUTLER AND WIFE, BY DEED RECORDED IN BOOK 337, PAGE 208, OF DEEDS; THENCE SOUTH 50 FEET; THENCE WEST 155 FEET; THENCE NORTH 50 FEET TO THE SOUTH LINE OF THE ABOVE DESCRIBED PARCEL CONVEYED TO BUTLER; THENCE EAST ALONG SAID SOUTH LINE, 155 FEET TO THE POINT OF BEGINNING. PARCEL K: THAT PORTION OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED 1N BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE EAST LINE OF SAID LOT 6, 14 FEET SOUTH OF THE NORTHEAST CORNER THEREOF; THENCE WEST PARALLEL TO THE NORTH LINE OF SAID LOT 6, ISO FEET; THENCE SOUTH, PARALLEL WITH THE EAST LINE OF SAID LOT 6,60 FEET TO THE SOUTH LINE OF THE LAND CONVEYED TO L.G. BUTLER AND WIFE BY DEED RECORDED JUNE 9, 1919 IN BOOK 337 PAGE 208, OF DEEDS; THENCE EAST ALONG SAID SOUTH LINE 150 FEET, MORE OR LESS TO THE EAST LINE OF SAID LOT 6; THENCE NORTH 60 FEET TO THE POINT OF BEGINNING. PARCEL L: BEGINNING AT A POINT ON THE WEST LINE OF SYCAMORE STREET, 120 FEET SOUTH OF THE SOUTH LINE OF WASHINGTON AVENUE; RUNNING THENCE SOUTH ALONG THE WEST LINE OF SYCAMORE STREET, 85 FEET MORE OR LESS, TO A POINT 14 FEET SOUTH OF THE NORTH LINE OF LOT 6 OF WALTON'S ADDITION TO TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12 PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; RUNNING THENCE WEST, PARALLEL TO THE NORTH LINE OF LOT 6, 122.74 FEET, MORE OR LESS TO A POINT 125 FEET EAST OF THE EAST LINE OF BROADWAY; THENCE NORTH 84 FEET MORE OR LESS TO A POINT 125 FEET EAST DF THE EAST LINE OF BROADWAY, AND 120 FEET SOUTH OF THE SOUTH LINE OF WASHINGTON AVENUE; THENCE EAST 122.74 FEET MORE OR LESS TO THE POINT OF BEGINNING. Page 6 1 ORDER NO. 7002103-23 PARCEL M: COMMENCING AT A POINT ON THE SOUTH LINE OF WASHINGTON AVENUE, 60 FEET WEST OF THE INTERSECTION OF THE WEST LINE OF SYCAMORE STREET WITH SOUTH LINE OF WASHINGTON AVENUE; RUNNING THENCE SOUTH PARALLEL WITH THE WEST LINE OF SYCAMORE STREET, 120 FEET; THENCE WEST 60 FEET; THENCE NORTH 120 FEET TO THE SOUTH LINE OF WASHINGTON, THENCE EAST 60 FEET TO THE POINT OF BEGINNING, AND BEING A PART OF LOT 8 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. PARCEL N: BEGINNING AT THE INTERSECTION OF THE WEST LINE OF SYCAMORE STREET WITH THE SOUTH LINE OF WASHINGTON AVENUE; THENCE SOUTH ALONG THE WEST LINE OF SYCAMORE STREET, 120 FEET; THENCE WEST 60 FEET; THENCE NORTH 120 FEET TO THE SOUTH LINE OF WASHINGTON AVENUE; THENCE EAST ALONG THE SOUTH LINE OF WASHINGTON AVENUE, 60 FEET TO THE POINT OF BEGINNING, AND BEING A PART OF LOT 8 OF "WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. Page 7 E• 52 L WAShWGTON AVENUE WA FONTS �. �+n b ,a L�vL UMBIA a ,a • M � O for 1 161 a -------•-------- � 4'1 lll�O w r1 P7�_� �_---� ----._--___.------ Lot J � r,l.r.• `I as R d/�42.tr p tn• E w tOr 6 1 w — — — 3 'E ai.i.• � �. .-. _ — it O V aUd, Y urissl r � LOT 4 ' 07 M NLESWORrk ---.----_--... __— Lor 5 S r+ Lu 5fi2 T+ s&fAp W PREPARED F R C CouNTYASS SSUR DEPT. RF C>� 7L640 7 for 6 THE AASS SSES RNORASSUM SAI "� FOR OTHER ES.NOT TO E kzza9 cALLRIGHTSSERYFD. 5• J OCOP ORANGE COU TY --- ------- u, �z•-G = W Lor 7 E LOT d ui CD 4 — - - ,.AD Lor s = } ° aoR' ca r 2Q to TRAC T c ,— i1siT TEN M S WE T . -1 1 V F 5 — TE - ASSESSOR'S BLOCK 6 �SSESSI�'_ Ono 4Ilk- .. .. . a ON IMM r fi R!- MOM an 1 . 64 jgmjR In I POP n 11 �► r■ Mom�i�r�l fi u RAF IRA or Inn 'lfrC�yt�l.� / ilia -_If. ... �L1a■�.'h�Nil��#�_!#■ice _ i .Cs�.wi�� •sib'. L k i EXHIBIT C OFF-SITE IMPROVEMENTS Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering n 1. Install a new traffic signal at Main/15'h, $200,000 Owner Building including communication cable and Permit conduits to connect to the City's Traffic Management Center,and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/15`h,including communication Permit cable and conduits to connect to the City's Traffic Management Center,and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St.,including communication Permit cable and conduits to connect to the City's Traffic Management Center,and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Parking Permit Structure egress. 5.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of 101h Street unless City and Sycamore. undertakes per section 5.1.1 5.b. Construct roundabout at the $600,000 Owner Building intersection of 10'h Street and Sycamore, Permit with 10`h Street one-way EB,including necessary striping, traffic signs,pedestrian crosswalks and pedestrian refuge areas. Right-of-way shall be acquired at S/W, S/E and N/W corners by developer. i Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering Improvement 6. Restripe: (1)WB Santa Clara to provide $50,000 Owner Building one LT lane and one shared LT/RT lane; Permit (2)NB Grand Avenue from Fruit Street to 141h Street at Santa Ana Blvd/I-5 HOV ramps to provide three NB travel lanes;(3) I-5 NB off-ramps to provide a WB LT lane, a shared LT/RT Iane and a RT lane at Grand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St.,restripe and slurry seal this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of loth Street. 8. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17`h and unless City Broadway/17`h, including striping,traffic undertakes per signal modification,and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Building mitigate changes in traffic patterns or (actual cost, Permit increased cut through traffic resulting from not an the One Broadway Plaza Project in French estimate) Park,French Court, Willard,Floral Park, West Floral Park,and Washington Square Neighborhoods.Traffic plans costs shall include traffic studies,staff time to process neighborhood traffic plan, and the construction of appropriate semi-diverters, diagonal diverter and street closures. i Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering Improvement Event(-Cas 10. Reconstruct 10`s St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway,which will include: (1)traffic signal modifications at Main/Washington,MairJ10`h, Washington/Sycamore, Broadway/Washington,and Broadway/l0`h (2)restriping streets and intersections,and (3)installing appropriate traffic signs(4) retiming traffic signals(5)constructing ADA compliant wheel chair ramps. SUBTOTAL $12,600,000 Notes: 1. Estimated costs are based on 2004 year of expenditure. Owner shall fund item 5.a. and 8(if necessary)based on estimated actual construction and right-of-way costs at time of indicated funding event,and supplement if necessary. 2_ Items not complete and accepted by the City shall be fully bonded for pursuant to an offsite subdivision improvement agreement,prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City,shall be completed and accepted by City prior to issuance of Certificate of Occupancy. i EXIT D Remaining Discretionary Approvals I. Vacation of Sycamore between Tenth Street and Washington Street,and transfer of fee title,if necmary,to Owner. 2. Remaining Discretionary Approvals Specified in One Broadway Plaza Specific Development District(SD-75),a true and correct copy of which follows: a. Section 74-e-iii. b. Section 7 5. C. Section 7-7. d. Section 7-8. 3. Uses permitted in SD-75 with the issuance of a conditional use permit. EXHIBIT D-1 1� One Broadway Plaza Specfflc Develo Invent District SD-75 TABLE OF CONTENTS SECTION 1. Applicability of Ordinance SECTION 2. Purpose SECTION 3. Goals. Objectives and Policies SECTION 4. Permitted Improvements SECTION 5. Permitted Uses SECTION 6. Conditionally Permitted Uses SECTION 7. Development Standards 1. Floor Area Ratio 2. Parcel Size 3. Building Envelopes 4. Office Tower a. General Requirements b. Building Setbacks c. Building Height d. Screening e. Elevations f. Signs 5. Parking Structure a. General Requirements b. Building Setbacks c. Building Height d. Screening e. Elevations f. Landscaping g. Signs 6. Parking and Circulation 7. Plaza Design 8. Public Art EXHIBIT D,2 1 One Broadway Plaza Sioedfic Development DWrlct SD-75 SECTION 1 APPLICABILITY OF ORDINANCE The specific development zoning district, as authorized by Chapter 41. Division 28, 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 warred or superseded by this ordinance. Use district regulations established in Chapter 41. Article 111, of the Santa Ana Municipal Code for zoning districts other than the SD zoning district may be incorporated herein by reference. SECTION 2 PURPOSE The Specific Development No. 75 (SD-75) 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-75 regulations will establish a professional district that will exclusively entitle a 37-story, 518,003 square foot office tower at the northeast comer of Tenth Street and Broadway with a historic setting further north along Broadway to Washington Avenue. This area will be primarily a professional office district with support services and eating establishments. SECTION 3 GALS.OBJECTNES AND POLICIES The One Broadway Plaza Specific Development District Is located within the midtown area of the City. The One Broadway Plaza Specific Development District encompasses a large established city block bounded by Washington Avenue to the north, Tenth Street to the south, Sycamore Street to the east and Broadway to the west. The One Broadway Plaza Specific Development District maintains a historic character along the northwest portion of the district. with a number of buildings dating from the early years of development in Santa Ana. The project site Is surrounded by the Civic/Professional, Financial, and the Community Specialty Retail zones of the Midtown Specific Plan. The One Broadway Plaza office tower is intended to be a major landmark in the midtown section of the City of Santa Ana. In addition, the various activities planned for this site vAl result In the project becoming a node, or 2 I place of activity. The objectives of the One Broadway Plaza specific development plan Include the following: • A landmark office project along Broadway at the center of the Midtown Specific Plan. • Maintain the existing streetscape pattern including sidewalk design, mature palm trees and historic light fixtures. • Maintain the scale and character established by the existing historic structures along the north and of the district. • Maintain large open setbacks adjacent to Broadway. • Encourage revitalization of existing properties for a variety of professional office uses. • Enhance the pedestrian experience through the development of new plaza areas and water features at the Intersection of Sycamore Street and Tenth Street and Broadway and Tenth Street, SECTION 4 PERMITTED IMPROVEMENTS Improvements permitted on the project site include either one of the following: 1. An Iconic office tower of no less than 493 feet tall, approximately 37 stories, 518,300 square feet of building area with a destination restaurant at the top two levels of the tower. a. The project site shall be no less than 4.339 acres b. A nine level (one subterranean and eight above grade), 78 foot high parking structure, with a minimum of 2,463 parking spaces. c. The renovation and rehabilitation of four existing structures located to the north of the office tower. The structures are those addressed as 1103, 1111. 1115-17 and 1211 North Broadway. 2. All other permitted improvements shall comply with the Midtown Specific Plan, Chapter 7, Broadway Corridor District, Development Standards. SECTION 5 PERMITTED USES The category of permitted land uses to be included within the project include: Professional and business offices, banks and similar financial institutions, service and commercial retail uses and restaurants. If a use is for any reason omitted from those specified as permissible, or if an 3 0 i ambiguity arises concerning the classification of a particular use, the determination shall be at the discretion of the Planning Manager. 1. Professional, business and administrative offices and services, including but not limited to employment agencies, advertising agencies, escrow agencies, accountants, insurance, attomeys, architects, engineers, planners and other similar uses. 2. Banks,finance, insurance and real estate offices. 3. Service and commercial retail uses which shall be limited to. a. Bookstores b. Stationery shops c. Gift stores d. Dry cleaner e. Hair salon f. Travel agent g. Copy center h. Mail/postal center I. Tailor j. Shoe repair k. Art supply 1. Office supply 4. Cafes and restaurants, except fast food and/or take out restaurants (Added by the Planning Commission on February 23,2004). 5. Florists 6. Pharmacies 7. Day care facilities 8. Museums, libraries and galleries 9. Artists'studios SECTION 6 CONDITIONALLY PERMITTED USES The following uses are permits upon the approval of a conditional use permit In accordance with the Santa Ana Municipal code: 1. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use,exaMA adult entertainment businesses 2. Establishments selling or serving alcoholic beverages 4 0 f 3. Coffee houses 4. Banquet facilities 5. Uses open after midnight to 5:00 a.m. 6. Helipads 7. Fast food and/or tape out restaurants (Added by the Planning Commission on February 23,2004). SECTION 7 DEVELOPMENT STANDARDS The One Broadway Plaza Specific Development District is intended to allow the development of a landmark office tower and affiliated parking garage while maintaining some of the historic structures located on the northwest side of the district. The following general development standards are applicable to this project- I. floorArea Ratio(FAR.) The required floor area ratio for the project site shall be 2.9,or 530,487 square feet of development. The FAR is calculated by dividing the total square footage of the office building plus the existing structures to remain by the total square footage of the project site. Consistent with the General Plan, the parking structure is not Included in the FAR calculation. This FAR includes the proposed office tower (518,003 square feet) and the structures that will remain on the project site (12,484 square feet). The FAR for the existing structures shall remain at 0.5 or less. 2. Parcel S•¢m The One Broadway Plaza parcel size shall be 4.339 acres. Subdivision of the parcel is not permitted. 3. Bgj ing Envelopes Height and yard areas established for the existing structures and the office tower define the permitted building envelopes in the One Broadway Plaza Specific Development District. With the exceptions of the office tower and parking structure, all buildings shall maintain a lower scale character no taller than 35 feet or 3-stories. whichever Is less. 4. Office Tower The basic form, size and location of the office tower as Illustrated in the applicant's plans are hereby approved. In order to address certain outstanding details, however, revised plans conforming with 5 i Section 7-4-e-iii of this ordinance shall be submitted to and be approved by the Planning Commission prior to issuance of any building permits. a. General Requirements 1. The office tower shall remain consistent with the approved site plan as shown in Exhibit 1. b. Building 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. The front yard is one of the most important characteristics of Broadway and maintenance of these landscaped open spaces is crucial to preserving the streetscape. Major setback conditions are discussed below by street: i. Broadway: The One Broadway Plaza office tower shall maintain a building setback of 20 feet. This setback area may include hardscape as shown on the approved plaza plan. For existing buildings, a setback of 20 feet shall be maintained. The existing structure at 1111 North Broadway shall maintain a minimum setback of 15 feet. ii. Tenth Street: A 12-foot building setback shall be required for the office tower. Hardscape, landscape and water features shall be provided in the required setback as shown on the applicant's Landscape Plan dated February 4. 2004 (Exhibit 2). iii. Washington Avenue: The 15--foot landscaped setback for the existing structure shall be maintained. c. Building Height The approved height for the office tower Is approximately 493 feet. Modifications to the tower's approved building height or number of stories, which represent either an increase or decrease, shell not be allowed. The existing buildings along Broadway shall maintain their existing height and shad not exceed 35 feet. 6 d. Screening All appurtenances shall be located outside any required setback and shall be screened from view, e. Elevations i. Exterior elevations shall incorporate a translucent, non- reflective glass in a light green tone consistent with the materials board sample provided by the applicant and as approved by the Planning Commission and City Council. IL The structural system of the building shall be visible from the exterior elevations consistent with the plans approved by the Planning Commisslon and City Council. iii. Incorporate an arcade or ground level "skirt' to provide a transition between the tower and pedestrian level. Plans satisfying this requirement shall be submitted to and must be approved by the Planning Commission prior to the issuance of any building permit. 5. Parking Structure The basic form, size and location of the parking structure as illustrated in the applicant's plans are hereby approved. In order to address certain outstanding details, however, revised parking structure plans shall be submitted to and be approved by the Planning Commission prior to issuance of any building permits. The revised plans shall comply with the following: a. General Requirements L No parking areas above or below grade shall encroach into required setbacks. ii. Subterranean levels shall use offset sloping rumps to allow for open and unobstructed visibility for floor surveillance. III. The parking structure shall maintain a minimum vertical clearance of 11 feet on the street level, with the exception of the entry at Sycamore Street. The entry area shall maintain a vertical clearance of 21 feet to facilitate the loading and unloading function as well as allow trash truck access. iv. On all other levels, the parking structure shall maintain a minimum vertical clearance of eight feet, two inches. 7 v. Glare from the parking structure lighting shall not be visible from the plaza level or any public right-of-way. vi. The ceiling of all parking levels shall be painted white and be maintained to improve illumination and enhance safety within the parking structure. vii. The parking structure shall be completed, shall have been finaled by the Building Division and be fully operational prior to any occupancy of any building or use, or portion thereof, for which the structure provides parking. viii. The parking structure shall contain a minimum of 2,463 parking spaces,which are allocated as follows: a) 1470 spaces for the office tower b) 50 spaces for ground level retail uses (10,000 square feet) c) 180 spaces for restaurant uses (18.000 square feet) d) 29 spaces for offices uses within existing buildings (9,627 square feet) e) 29 spaces for restaurant uses within existing buildings (2,857 square feet) f) 30 spaces to replace parking displaced on Sycamore Street g) 100 spaces to replace parking displaced on Main Street h) 110 spaces to replace existing surface parking lot for 1200 N. Main Street i) 12 spaces to replace existing surface parking lot for 1111 N. Broadway �) The remaining 453 parking spaces may be used for other uses in the area b. Building Setbacks i. Broadway: The minimum required setback for the parking structure is 124 feet as measured from the property line. ii. Washington Avenue: A landscaped setback of 15 feet shall be required. ill. Sycamore Street: There shall be no setback requirement. 9 i iv. Tenth Street: The minimum required setback is 145 feet as measured from the property lime to the entrance to the parking structure. c. Building Height The maximum allowable height of the parking structure is 78 feet. d. Screening All appurtenances shall be located outside any required setback and shall be screened from view. e. Elevations L The north and east elevations shall Incorporate architectural cues and proportions found along Main Street to create an architectural screen as a visual enhancement to the existing commercial corridor. ii. Exterior walls shall exhibit horizontal rather that sloping design elements. iii. The exterior of the parking structure shall be painted a soft, earth tone color as approved by the Planning Division. Brighter and darker colors, Including dark green, shall be prohibited. iv. Decorative grillwork or landscape materials shall be placed between wall and floor of the higher parking level. v. Elevators shall be located so they are visible to the public. The elevator cabs shall have glass facing the public view. vi. The parking structure shall comply with the Santa Ana Municipal Code sections pertaining to the Police Department's Security requirements. including parking lot lighting levels. vil. The parking structure shall comply with the Santa Ana Police Department's parking structure design guidelines. f. Landscaping: 9 i. Landscaping planters Incorporated into the parking structure shall have a minimum planter dimension of 4-feet wide and 4- feet deep. An internal drainage system and waterproofing of the planters shall be provided along with an automatic drip- type irrigation system. ii. A trellis shall be incorporated into the north and west building elevations where blank walls occur on the structure. The trellis material shall be constructed of decorative and durable materials and shall cover a minimum of 60 percent of the blank wall. The trellis details shall be included In the project landscape plan and be approved prior to building permit issuance. iii. Canary Island Pines, Deodar Cedars and River She-Oaks shall be planted along the Broadway and Washington Avenue elevations. The trees shall be planted at a minimum of 30 feet on center as shown on a landscape plan to be approved by the City's Landscape Development Associate prior to the issuance of building permits for the parking structure. The landscape plan shall be fully Implemented prior to the Issuance of any certificate of occupancy. iv. The size of the trees to screen the parking structure along Washington Avenue and Broadway shall be a minimum 120- inch box tree. g. Signs i. All signage shall comply with the Santa Ana Municipal Code. ii. 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 for the parking structure, shall be submitted to and be approved by the Planning Commission. B. PgrkinQ/Circulation A student drop-off area shall be created in the parking lot of 920 North Main Street for the exclusive use of the Orange County High School of the Arts. The minimum standards for this function include: a. Prior to Issuance of any building permits, construct a raised center median on Main Street per a Street Improvement Plan to be approved by the Public Works Agency. 10 i b. Prior to issuance of any building permits, construct a two-way drop-off zone. Each lane shall have a minimum width of 98 feet. A yellow line approximately one foot in width shall be painted to separate the two drive-thru lanes. The plans shall be submitted to the Planning Division and Public Works Agency for approval. c. Prior to issuance of any building permits, install a hedge and 36- inch tall fence to direct students towards the Main Street and Sycamore Street public sidewalks in order to avoid illegal pedestrian crosswalk movements onto Tenth Street. d. Prior to submittal Into building plan check, revise the site plan to depict and note the removal of the existing parking stalls and meters on Main Street consistent with the mitigation measures contained in the Final EIR. e. Prior to submittal into building plan check, revise the site plan to depict and note the restriping of Main Street to provide three northbound and two southbound travel lanes. f. All loading zone areas must provide a minimum &inch raised curb around the perimeter of each area. g. The proposed roundabout and water feature details must be included as part of the Plaza Plan referenced In Section 7 7 of this ordinance. Prior to the issuance of any certificate of occupancy, all water feature and roundabout improvements must be completed. h. Prior to issuance of any certificate of occupancy, dose off the existing curb and gutter serving the trash collection area between 1200 South Main Street and the OCHSA. The curb and gutter shall be replaced with a new curb, gutter and sidewalk. L Prior to submittal into building plan check, revise the site plan to depict and note the left turn Ingress (Sycamore Street - southbound) into the school drop-off zone. j. Prior to submittal into building plan check, revise the site plan to depict and note wheel chair accessibility ramps at the Broadway egress exit. k. Prior to submittal into building plans check, revise the site plan to depict and note the replacement of the painted striped "No Access Zone" to be replaced with a raised median barrier with decorative pavement for the eastern and westerns portions of Tenth Street. ll I. Prior to submittal into building plan check, revise the site plan to depict and note the modifications of the signals at the Main/Washington, MaiNTenth, Washington/Sycamore, Broadway/Washington and Broadway/Tenth intersections. m. Prior to the issuance of any building permit. install a raised median at the Broadway egress as determined by the Public Works Agency. 7. —Plaza e a n Prior to issuance of any building permits, a detailed Plaza Plan shall be submitted to and approved by the Planning Commission. a. The overall plaza design theme shall incorporate a minimum of three major pedestrian-level water features and two water elements adjacent to the proposed building. 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 BO-inch box. c. Land uses such as retail, office or other services shall be incorporated within the plaza level pursuant to the approved site plan. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless specifically submitted to and approved by the Planning Commission. d. The plaza 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, drinking fountains, 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 tower architecture. 12 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 plaza furnishings. i. Bike racks shall be provided at key activity locations on the plaza level. j. Alf 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 Plan. Plaza area paving shall consist of unit pavers. I. One linear foot of seating shall be provided for every 60 square feet of plaza area. Seating may include benches, low seating walls, steps, planter edges or fountains. The seating shall be designed to discourage sleeping. m. 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. n. The required Plaza Plan shall include adequate provisions for the on-going maintenance of all plaza and roundabout improvements. o, The required Plaza Plan shall include design details, materials and provisions for the on-going maintenance for all interior public areas within the office tower, including but not limited to the ground floor and basement area lobbies. 8. Public Art a. Public art valued at one percent of the office tower 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 southwest corner of the project site adjacent to Broadway and Tenth Street. The public art should invite participation and interaction, inspire, add k3cal meaning, Interpret the community by revealing Its culture or history, and/or capture or reinforce the 13 unique character of the new place. A comprehensive Public Art Plan Indicating compliance with this requirement, and which proposes specific pieces of art for speck locations or applications, shall be submitted to the Planning Commission for review and approval prior to issuance of any building permits. 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 One Broadway Plaza 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 including an art piece such as a mural that may be proposed on the south elevation of the parking structure at the Sycamore Street entrance, 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 graffltl and shall not incorporate any flashing or distracting form of Murnination. 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. 14 Iini::�lx`r�7 TT� .,.rr�nnurrrrruuunn■_ ► � , M �4r� �rt �Jr r A ; s, (hr:� lL .r•�+IGr�yY.:./ / XV 7 b . hu ell {� 0INN I�Jy{A� -�•y=��i �e Gv.ti�A' 'Y'.�iyF "Ole If, 000 � 1'O�.c 'i� <► rt0 ,'� �r �,a. �,,`r yam: a�A //�"., �'-_ s.,0-fir -- _ .,d� -.- �.:•� S7`•e. ». a���� ^.�i,i.� � :a,ti , SM ct 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 DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC Dated: July , 2010 EXHIBIT 8 75A-92 DRAFT 06/09/10 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA; and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN,LLC, and 845 BROADWAY,LLC This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("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") on the one hand, and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN LLC, and 845 BROADWAY LLC,each of which is a California Limited Liability Company(collectively referred to herein as"Owner"or"Property Owner"), on the other hand. 1. This Amendment is entered into with reference to the following facts: 1.1 Original Agreement. On or about July 19, 2004,the City and Owner entered into a written Development Agreement,referenced as City Agreement No. A-2004-153 and recorded as Document No. 2005000414753 of the Official Records of the County of Orange ("Original Agreement"). 1.2 Purpose of Original Agreement and Amendment. The purpose of the Original Agreement and this Amendment is to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75, Environmental Impact Report No. 99-01, General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02 (the"Pre-Existing Approval Entitlements"). 1.3 Statutory Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Amendments and amendments to Development Agreements, such as the Original Agreement and this Amendment, with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Amendment is intended to assure adequate public facilities at the time of development. (2) This Amendment is intended to assure development in accordance with 1 75A-93 DRAFT 06/09/10 City's General Plan, applicable Specific Plans and Specific Development District No. 75. (3) This 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. 75. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Amendment will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this 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/or pay such benefits sooner, and represent benefits which would not otherwise be required as part of the development process. 1.6 Planning Commission -Council Hearings. On dune 14, 2010, 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 Amendment. The Planning Commission recommended to the City Council of City that it execute this Amendment. On , 2010, 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 Amendment. 1.5 Council Findings. The Council finds that this 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 , 2010,the Council adopted Ordinance No. approving this Amendment. The ordinance and this Amendment becomes effective thirty(30) days thereafter. 2. Section 4.3 shall be deleted in its entirety: 3. Section 5.1.1 shall be amended to read as follows, and Exhibit C-1, attached hereto shall 2 75A-94 DRAFT 06/09/10 be made a part of the Original Agreement by this reference: 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City are as set forth in Exhibit C-1 to this Agreement. The design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C-1 prior to issuance of final map and building permit. Owner shall have one year from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph 5.a. and 8 of Exhibit C-1 and transfer title to the City,except as to the roundabout, for which Owner shall secure and transfer to City an easement(or other right to construct, maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such offsite mitigation measures(including traffic studies)at the time called for in paragraphs 5.a., 8 and 9 of Exhibit C-1. For all other items specified in Exhibit C-1, security in the form of bonds (i.e., a payment, a performance and a material bond)or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those offsite mitigation measures identified in paragraphs 1-4, 5.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account or escrowed construction loan proceeds in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty(30)days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C-1,City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C-1 to owner within thirty(30) days, subject to City accounting practices,after completion of all items referenced in Exhibit C-1 and issuance of a Certificate of Occupancy for the Project. 4. Sections 5.8 shall be deleted its entirety: 5. Sections 5.8 shall be deleted its entirety: 6. Sections 5.9 shall be amended to read as follows: 3 75A-95 DRAFT 06/09/10 5.9 Historic Structures on the Property. (3) After complying with the relocation obligations of subsections 5.9(1), if necessary, and 5.9(2), Owner may, notwithstanding the provisions of section 5.8 above, scarify the soil in the Scarifying Area(shown on Exhibit E to this Agreement)to a depth of three feet(3.0')and drive piles in the area shown on Exhibit E to support the eventual 37-story office tower. The scarifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency, and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District, Orange County High School of the Arts, and El Sol Academy. The scarified area shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and, if a building permit has not been issued and construction of the Project has not commenced within one hundred eighty(180) days thereafter, landscaped, irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 7. Except as hereby expressly amended by this Amendment, the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been executed by the City of Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. authorizing such execution, and by Property Owner. Dated this_day of , 2010. THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W. FLETCHER City Attorney 4 75A-96 DRAFT 06/09/10 ONE BROADWAY PLAZA,LLC, By: MICHAEL F. HARRAH Managing Member 1200 N. MAIN, LLC By: MICHAEL F. HARRAH Managing Member 845 BROADWAY LLC By: MICHAEL F. HARRAH Managing Member 5 75A-97 DRAFT 06/09/10 EXHIBIT C-1 (rev.July,2010) OFF-SITE IMPROVEMENTS Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 1. Install a new traffic signal at Main/15t , $200,000 Owner Building including communication cable and Permit conduits to connect to the City's Traffic Management Center,and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/15'', including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St., including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Parking Permit Structure egress. 5.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of 10'' Street unless City and Sycamore. undertakes per section 5.1.1 5.b. Construct roundabout at the $600,000 Owner Building intersection of I0'b Street and Sycamore, Permit with 10'h Street one-way EB, including necessary striping, traffic signs, pedestrian crosswalks and pedestrian refuge areas. Right-of-way shall be acquired at S/W, S/E and N/W corners by developer. 6 75A-98 DRAFT 06/09/10 Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 6. Restripe: (1) WB Santa Clara to provide $50,000 Owner Building one LT lane and one shared LT/RT lane; Permit (2)NB Grand Avenue from Fruit Street to 14`h Street at Santa Ana Blvd/1-5 HOV ramps to provide three NB travel lanes; (3) 1-5 NB off-ramps to provide a WB LT lane, a shared LT/RT lane and a RT lane at Grand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St.., restripe and slurry seal this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of IOth Street. 8. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17`h and unless City Broadway/17th, including striping,traffic undertakes per signal modification, and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Six month mitigate changes in traffic patterns or (actual cost, prior to increased cut through traffic resulting from not an issuance of the One Broadway Plaza Project in French estimate) the first Park, French Court, Willard, FIoral Park, certificate of West Floral Park, and Washington Square occupancy but Neighborhoods. Traffic plans costs shall no later than include traffic studies, staff time to process 22 month neighborhood traffic plan, and the from the I" construction of appropriate semi-diverters, building diagonal diverters, and street closures. permit 7 75A-99 DRAFT 06/09/10 Estimated Entity Funded Prior Description of Improvement Cost(2004 Responsible to Indicated Dollars) For Triggering Improvement Event Cash 10. Reconstruct 10` St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway, which will include: (1)traffic signal modifications at Main/Washington, Main/]0`h, Washington/Sycamore, Broadway/Washington, and Broadway/10" (2)restriping streets and intersections, and (3) installing appropriate traffic signs (4) retiming traffic signals (5)constructing ADA compliant wheelchair ramps. SUBTOTAL $12,600,000 Notes: I. Estimated costs are based on 2004 year of expenditure. Owner shall fund item 5.a. and 8 (if necessary) based on estimated actual construction and right-of-way costs at time of indicated funding event, and supplement if necessary. 2. Items not complete and accepted by the City shall be fully bonded for pursuant to an offsite subdivision improvement agreement,prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City, shall be completed and accepted by City prior to issuance of Certificate of Occupancy. 8