HomeMy WebLinkAbout75A - PH - 200 EAST FIRST AMERICAN WAYREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
MARCH 5, 2012
TITLE:
PUBLIC HEARING — AMENDMENT TO DEVELOPMENT
AGREEMENT NO. 2004 -03, ZONING ORDINANCE
AMENDMENT 2012 -01, VESTING TENTATIVE TRACT
MAP NO. 2012 -01 (COUNTY MAP NO. 17437) AND
SITE PLAN REVIEW NO. 2012 -01 FOR A NEW MULTI-
FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST
FIRST AMERICAN WAY
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15t Reading
❑ Ordinance on 2 "d Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
For the January 23, 2012 meeting staff recommended that the Planning Commission:
Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011 -46.
2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01.
3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03.
4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 (County Map No.
17437) as conditioned.
5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned.
PLANNING COMMISSION ACTION
At its meeting on January 23 the Planning Commission discussed the project including issues
related to the unit mix, tandem parking, ingress /egress and open space. Ultimately, the item was
continued to the next meeting for further discussion, and in hopes that all seven commissioners
would be present (Commission Turner was absent).
At its meeting on February 13 the Planning Commission again discussed the project, although
Commissioner Yrarrazaval was absent at this meeting. A discussion ensued and there was a
motion (motion by Turner, second by Nalle) to continue the matter and give the applicant
direction to bring the open space into compliance with SD -43, reconsider the unit mix, incorporate
the .6 acre portion and provide more details concerning the landscape and parking management
plans (Exhibit A).
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Before a vote on the original motion, a substitute motion was made (motion by Mill, second by
Acosta) to approve the project. But after further Commission discussion the vote on this
substitute motion failed on a 3:3 vote (Commissioners Mill, Acosta and Gartner in favor;
Commissioners Alderete, Nalle and Turner opposed).
The Commission then returned to the original motion by Commissioner Turner to continue the
item and provide the applicant with direction for changes. This motion failed on a 2:4 vote
(Commissioners Nalle and Turner in favor; Commissioners Alderete, Acosta, Gartner and Mill
opposed).
A third motion was made by Commissioner Gartner and seconded by Commissioner Alderete to
continue the item for two weeks to allow staff time to rebut the issues that were raised by the
applicant during public testimony. This motion also failed by a vote of 2:4 (Commissioners
Alderete and Gartner in favor; Commissioners Acosta, Mill, Nalle and Turner opposed).
Pursuant to the Planning Commission's bylaws, the applicant has requested the project be
forwarded to the City Council for a final decision.
AIRPORT LAND USE COMMISSION ACTION
In accordance with State law, the zoning ordinance amendment and the project's close proximity
to the John Wayne Airport requires the project to be submitted to the Airport Land Use
Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan
( AELUP) for John Wayne Airport. The project received FAA clearance on January 26, 2012 with
Aeronautical Study No.2012 -AWP- 393 -OE. At the regular meeting of the ALUC for Orange
County on February 16, 2012, the Commission found that the proposed Met at South Coast
Multi - Family project located at 200 First American Way consistent with the AELUP for JWA and
that the project was consistent with the AELUP for Heliports. With the determination, the
Commission requested and the applicant and City staff agreed to the following conditions:
In accordance with California Business and Professions Code section 11010(b)(13), the
Final Tract Map and the Deed Disclosure Notice for residential property shall include the
following language:
"NOTICE OF AIRPORT IN VICINITY
This property is presently located in the vicinity of an airport, within what is known
as an airport influence area. For that reason, the property may be subject to some
of the annoyances or inconveniences associated with proximity to airport operations
(for example: noise, vibration, or odors). Individual sensitivities to those
annoyances can vary from person to person. You may wish to consider what
airport annoyances, if any, are associated with the property before you complete
your purchase and determine whether they are acceptable to you."
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2. Designated outdoor common or recreational areas shall provide outdoor signage informing
the public of the presence of operating aircraft.
Project Changes by the Applicant
Subsequent to the February 13 Planning Commission meeting the applicant contacted staff to
discuss possible project changes.
Staff and the applicants held extensive discussions during the week of February 20. These
discussions were productive and resulted in significant project improvements including (Exhibit
13):
• Reduce total unit count by 6 units, from 284 to 278 units
• Improve the unit mix by:
o Increasing the number of two and three bedroom units from 106 units
(38 %) to 136 units (49 %)
o Decreasing the number of one bedroom units from 178 (63 %) to 142 (51%)
• Increase the average unit size from 885 sq. ft. to 915 sq. ft.
• Reduce tandem parking spaces from 344 (54 %) to 257 (42 %)
• Increase open space from 58,150 sq. ft. (202 sq. ft. per unit) to 70,976 sq. ft. (255
sq. ft. per unit). This complies with the City standards set forth in SD-43.
Staff believes these changes address the remaining concerns. Incorporating these changes will
ensure that the project will meet or exceed the standard of other recent high quality projects in
the City.
For example, to address the City's Housing Element goal to provide family sized housing the
applicant added 30 additional two and three bedroom units. This improved unit mix furthers the
Housing Element goal. Moreover, it is equivalent to the unit mix approved for the nearby Lyon
project.
Additionally, the applicant agreed to reduce the number of tandem parking spaces in an effort to
ensure that residents will enjoy ample and convenient parking. With this change The Met will
have a slightly lower tandem parking ratio than what was approved for the nearby Lyon project.
Project Features and Amenities
The applicant has incorporated a rich variety of project amenities commensurate with those
provided by other recently- approved projects, including the nearby Lyon project. These
amenities include:
• The pool and fitness center have increased in size, and a business center has been
added, in response to Planning Commission comments.
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• A premium rooftop open space, i.e., the yoga veranda, is provided and will afford residents
with extensive views over MacArthur Place.
• A game lounge and a pet park have been added.
• Various other rooftop open spaces with seating areas and other amenities are also
provided for residents.
• Water features and other landscape enhancements are proposed for the two corner
plazas, and the main plaza will showcase a public art feature.
• The central open space deck will house the enlarged pool, Jacuzzi, permanent cabanas,
poolside bar, barbecues, fire pits and an outdoor fireplace.
• Private storage for residents will be provided within the parking garage.
• Each unit will enjoy high -end amenities such as granite counters, in -unit laundry
appliances, hardwood cabinets, premium flooring and appliances.
General Plan and Zoning Analysis
The General Plan land use designation for the site is District Center (DC), which allows for major
development sites such as the multi - family residential development. District Centers are
designed to serve as anchors to the City's commercial corridors, and to accommodate major
development activity. The project site is consistent with this General Plan land use designation.
The site is surrounded by residential and retail uses to the south; office development to the north;
a parking structure to the east; and residential and retail uses to the west.
The zoning for the site is MacArthur Place District Center, Specific Development District No. 43.
This zone allows for a mix of uses including office, restaurant, retail, hotel and residential land
uses. The applicant has requested amendments to SD -43 to allow for tandem parking and to
approve the overall parking ratio of 2.2 stalls per unit for the project. The 2.2 space parking ratio
is consistent with that applied to both the Nexus and Lyons projects which are located nearby.
Tandem parking is also provided in both the Nexus and Lyon projects. Nexus was approved with
14% tandem spaces and Lyon was approved with 43% tandem spaces. The Met now proposes
42% tandem spaces. Overall, with these amendments, the proposed project would be consistent
with the zoning designation.
Summary
The Met would serve to strengthen MacArthur Place as a major development area by
incorporating high quality architectural and urban design, quality materials and rich array of
amenities. The project also improves on the pedestrian connections and urban design within
MacArthur Place: the fagade along MacArthur is a significant improvement over the three -level
parking garage proposed in the Geneva Commons project; and the generously - scaled public
plaza at The Met's main corner on MacArthur will help form pedestrian connections to the north
and south sides of MacArthur Place.
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The Met will provide its residents with a level of amenities meeting or exceeding the high
standards the City has come to expect. The open space amenities include both rooftop and
plaza areas that give residents many options — and these areas are amenitized with a business
center, fitness center, lounges, a pet park, pools, cabanas, fireplaces, barbeques, water features
and public art.
The project has been revised to address issues raised by the Planning Commission and staff —
and these changes have further improved the project. The unit mix has been improved, the
average unit size has increased, the number of tandem parking spaces has been reduced, the
amount and type of open space has been expanded and the overall number of units has
decreased.
FISCAL IMPACT
There is no fiscal impact associated with this action.
RECOMMENDATION
As amended by the applicant's proposed project changes, and the ALUC conditions addressed
herein, staff recommends that the City Council:
1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011 -46.
2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01.
3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03.
4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 (County Map No.
17437) as conditioned.
5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned.
J VcutiTve . revino
Director
Planning & Building Agency
SK:rb
sk \reports \The Met.030512.cc
Exhibit: A. Planning Commission Staff Report
B. Applicant Project Revision Letter
75A -5
75A -6
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
FEBRUARY 13, 2012
TITLE:
PUBLIC HEARING — AMENDMENT TO DEVELOPMENT
AGREEMENT NO. 2004-03, ZONING ORDINANCE
AMENDMENT 2012 -01, VESTING TENTATIVE TRACT
MAP NO. 2012 -01 (COUNTY MAP NO. 17437) AND SITE
PLAN REVIEW NO. 2012 -01 FOR A NEW MULTI-
FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST
FIRST AMERICAN WAY
Prepared by Sergio Klotz
ti
Executive Director
RECOMMENDED ACTION
Recommend that the City Council:
PLANNING COMMISSION SECRETARY
APPROVED
❑ As Recommended
• As Amended
• Set Public Hearing For
DENIED
• Applicant's Request
• Staff Recommendation
CONTINUED TO
Planning (Manager
1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011 -46.
2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01.
3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03.
4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 as conditioned.
5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned.
DISCUSSION
Request of the Applicant
Vineyard Development is requesting approval of an amendment to an existing development
agreement, zoning ordinance amendment, vesting tentative tract map and site plan review to allow the
construction of a multi- family residential project with 284 units at 200 East First American Way.
Protect Location and Site Description
The proposed project lies within the MacArthur Place District Center (SD 43), a master planned, 62-
acre mixed -use project located on the north side of MacArthur Boulevard between Main Street and
the Newport-Costa Mesa (SR -55) Freeway.
EXHIBIT A
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The subject site is a vacant, 3.1 -acre rectangular shaped parcel situated at the northeast corner of
MacArthur Boulevard and MacArthur Place. Currently, the MacArthur Place District Center area is
developed with approximately 894,000 square feet of office uses, 20,000 square feet of retail space,
a 7 -story, 251 room DoubleTree Hotel and 346 for -sale and rental residential units.
Surrounding land uses include several office buildings to the north, the Hutton Center retail and
office development to the south, a parking structure to the east used by First American, and a mixed
use retail /residential project to the west, The Pinnacle Apartments (Exhibits 1 and 2).
MacArthur Place District Center (SD 43)
Project Description
The proposed project is a 284 -unit multi - family development consisting of three five -story buildings over
a podium parking garage. The applicant is processing a condominium map for the project, but it is
currently proposed to operate as an apartment complex, with units avaNable for rent. Access to the
project will be provided from First American Way with a service entrance provided from an existing
driveway located along the eastern edge of the project site. Due to the complex nature of the project, a
description of each of the project components is provided in more detail below. An analysis of each of
the project features will be provided in the Project Analysis section of the report.
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Unit Mix — The project is proposed to consist of a mix of one, two and three bedroom units. The units
will range in size from 744 square feet for the smallest one - bedroom unit to 1,383 square feet for a
three- bedroom unit. Table 1 below provides a breakdown of the units within the project.
Table 1 — Unit Mix
The Met Unit Summary
Unit Type
Units Proposed
Percent of total
Square Footage
1 bedroom
171
60%
744 -804
1 bedroom with
mezzanine
7
2%
912
2 bedroom
101
36%
1,004 -1,163
3 bedroom
5
2%
1,383
Proposed Parking Stall Type
Total
284
100%
n/a
Parkin — Parking for the project is proposed to be provided within a semi - subterranean parking
structure, which will consist of one level above grade and two levels below with some variation in the
amount of structure exposed above grade due to differences in site elevation. The overall parking ratio
was calculated at 2.2 spaces per unit, regardless of bedroom count, for a total of 625 spaces. The
applicant proposes to provide an additional 7 spaces of guest parking, for a total of 632 spaces — an
overall parking ratio of 2.22 spaces per unit. The applicant proposes to provide this parking in a
combination of standard single -car stalls and tandem stalls. Table 2 details the proposed parking.
Table 2 — Proposed Parking Summary
The Met Proposed Parking Summary
Proposed Parking
Apartment unit parking
2.0 spaces/unit
568 spaces
Guest parking
0.2 spaces/unit
57 spaces
Additional guest parking
7 spaces
Total
2.2 spaces/unit
632 spaces
Proposed Parking Stall Type
Standard single-car stall
288 spaces (46%
Tandem car stall
_
344 spaces 54%
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Architecture — The architectural style proposed for this mid -rise project is contemporary. Proposed
building materials include stucco, fiber cement panels, wood laminate panels, ceramic tile finishes,
metal awnings and rails, and aluminum windows. The project includes a variety of rooflines, varied
facades and architectural projections at key corners, with the highest point of the building being 128
feet.
Amenities — Exterior amenities include a water feature, landscaping and public art within the public
plaza located at the southwest and northeast corners of the project. The ground level interior
courtyard will have a pool and Jacuzzi, outdoor kitchen, and seating areas. The project is proposed to
have two rooftop decks which include seating areas, outdoor kitchen with barbeques, shade canopy,
cabanas, a hearth, yoga court and putting green. A fitness room is also proposed along with a
leasing office (Exhibits 3, 4, 5 and 6).
Open Space — The project proposes 202 square feet of open space per unit. Of the 284 units, 132
units will have private open space in the form of balconies or patios. The remainder of the open space
is aggregated within the courtyard and rooftop decks.
Landscaping — The project proposes to provide perimeter landscaping to a standard of 20 feet along
MacArthur Blvd. and 15 feet along MacArthur Place and First American Way. The project interior also
includes landscaping within the courtyard areas. A vacant 0.6 -acre portion of the site located at the
northeast corner of the site is proposed to remain vacant with a landscaped perimeter to screen the lot,
otherwise it will not be integrated into the larger project (Exhibit 6). A detailed landscape plan has not
yet been submitted.
Proiect Background
The Met parcel is part of the larger master plan called the MacArthur Place District Center, a mixed use
development plan that was approved by the City Council via a Specific Development (SD 43) on
January 4, 1988. In 2005, a project referred to as Geneva Commons and filed by Mola Development
was approved on The Met site allowing two buildings of 8 and 18 stories containing 278 residential
condominium units. Although the project was entitled, permits were never obtained for its construction.
In early 2011, Vineyard Development filed plans in order to construct The Met project. With the
exception of the subject site, the remainder of the properties have been fully developed with a mix of
office, retail, residential and hotel uses. The total project area houses the headquarters of First
American Title, a DoubleTree Hotel, Class A office towers, the Pinnacle Apartments and Vantage
Townhomes, and a small commercial development along MacArthur Crescent.
General Plan and Zoning Analysis
The General Plan land use designation for the site is District Center (DC), which allows for major
development sites such as the multi- family residential development. District Centers are designed to
serve as anchors to the City's commercial corridors, and to accommodate major development
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activity. The project site is consistent with this General Plan land use designation. The site is
surrounded by residential and retail uses to the north; office development to the south; office and retail
uses to the east; and residential uses to the west.
The zoning for the site is MacArthur Place District Center, Specific Development District No. 43.
This zone allows for a mix of uses including office, restaurant, retail, hotel and residential land uses.
The applicant has requested several amendments to SD 43 in order to allow for an increase in the
total number of units permitted within the zone, a reduction in the amount of open space required
per unit, a reduction in the overall parking ratio for the project, and to allow for tandem parking,
which is not currently allowed in this zone for residential development. With these amendments, the
proposed project would be consistent with the zoning designation.
Proiect Analysis
Zoning Ordinance Amendment — the applicant is requesting amendments to the existing zoning, SD 43
to increase the maximum number of permitted residential units, reduce the parking ratio, allow for the
use of tandem parking stalls, and reduce the open space requirement. Each of these requested
amendments is analyzed in more detail below.
Increase in Maximum Number of Residential Units — SD 43 currently allows a maximum of 624
residential units. MacArthur Place currently has two residential developments with a total of 346 units.
The Pinnacle Apartments, located at the northeast corner of Main Street and MacArthur Boulevard,
was approved in 1993 and contains 273 units. The Vantage Townhomes development was approved
to allow 93 for -sale units. The Met is proposed to contain 284 units, which, added to the existing 346
units, exceeds the maximum permitted units by six. The applicant is requesting an amendment to SD
43 to increase the maximum number of permitted units to 630. Amendments to SD 43 are needed to
Section III.A.2 (Maximum Permitted Building Density /intensity) and to Section V. (Development
Standards /Residential Permitted Density). It is proposed that these sections be modified to allow 630
units, which will include the existing 346 units and the proposed 284 -unit development.
Reduction in Multi - Family Residential Parking Ratio — Additionally, amendments are needed to revise
the parking requirements for multi - family residential uses. SD 43 currently has a graduated parking
ratio for individual units based on bedroom count and a similar graduated guest parking ratio based on
the overall unit count. As proposed, the project will provide a total of 632 spaces at an overall ratio of
2.2 spaces per unit, regardless of bedroom count, and inclusive of guest parking, which provides seven
more spaces than the 2.2 per unit ratio. The parking standards contained within SD 43, if applied to
the proposed project, would require a total of 642 parking spaces — 601 for the units and 41 for guest
parking. This creates the need for a reduction in the required parking of 17 spaces. Due to the fact that
the applicant proposes to provide 632 spaces, the effective reduction will be 9 spaces; however, the
SD should be amended to reflect the overall ratio of 2 spaces per unit and 0.2 spaces per unit for guest
parking. The following table provides a comparison.
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Table 3 — Parking Standards Comparison
SD 43 Standards "
`"The.N[et
Diiff "erence
642 spaces
625 spaces + 7 additional guest.L632 total
9 spaces
For purposes of further comparison, the following table shows the parking ratios used for the other
multi - family projects in the MacArthur Place area.
Table 3a -- Multi - Family Parking Ratio Comparison
MacAr#h.u.r Place;:Multi Fam�i Pa_rkirt "i�atio'C,Qm °`orison
The Pinnacle SD 43) Geneva Commons Nexus Towers Lon The Met
2.01 2.45 2.31 2.2 2.2
Allowance for Tandem Parking to Satisfy Parking Requirement — The Santa Ana Municipal Code
contains provisions for tandem parking to satisfy some portion of any required parking, but only for
commercial development. SD 43 does not contain any specific standards allowing the use of tandem
parking within the project area. The applicant proposes to have 54% of the parking stalls designed as
tandem spaces. The project that was previously approved on the site, Geneva Commons, was
designed with 11 % tandem parking, which was permitted through a variance to the parking standards.
Both the Nexus Towers and the Lyon Properties project also included a percentage of tandem parking,
however the existing multi - family project to the west, the Pinnacle Apartments, contains no tandem
parking and was developed pursuant to the existing zoning. As proposed, the applicant is requesting
an amendment to SD 43 that would allow for tandem parking up to 54% of total parking. The following
table provides a comparison.
Table 4 — Tandem Parking Project Comparison
MacArthur :Piave Tandem son
The Pinnacle SD 43 Geneva Commons
Nexus Towers
Lon
The Met
0% 11%
14%
43%
54%
This table is organized in order of project approval. There has been a trend toward increasing the
percentage of tandem parking allowed for projects recently approved in this area. Staffs research has
found that tandem parking can be successful if it is only used for one - bedroom apartments and if the
stall is assigned to a specific unit. In addition, the apartment property manager must be experienced
with managing tandem stalls, have a detailed parking management plan and actively enforce the use of
the tandem stalls rather than allowing the second car to use guest stalls. Due to the fact that no new
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multi- family projects have been built in the City with the proposed percentage of tandem parking, the
appropriateness of this percentage is not clear. However, it is consistent with the percentage of
tandem spaces per one - bedroom units that was provided at the Lyon project. The Lyon project has
51% of its unit mix as one - bedroom units with 43% of its spaces as tandem spaces — 8% fewer than
the percentage of units. The Met proposes a unit mix of one - bedroom units at 62% with 51% tandem
units — also 8% fewer than the percentage of one - bedroom units. Staff proposes to include conditions
of approval to address the ongoing management of a tandem parking program and the proposed
amendment to SD 43 will address the need to link percentage of tandem with percentage of one -
bedroom units. This could affect the future unit reconfiguration, if any, of the proposed project.
Unit Mix and Average Unit Size — Although SD 43 does not regulate unit bedroom mix and would,
therefore, not require any amendments to the zoning for the proposed project, unit size and mix have
been consistent policy concerns of the Planning Commission as they have been considered to be
indicators of a project's quality and long term success. The following table provides a comparison of
The Met's proposed unit mix and average unit size compared to other recently approved projects in the
area.
Table 5 — Unit Mix Comparison
The Housing Element identifies a need for larger units within future projects in order to accommodate
the larger family sizes unique to the City of Santa Ana. Staff has provided this comment to the
developer. The latest submittal proposes to include 5 three - bedroom units and 7 one - bedroom units
that also have a mezzanine /loft space in the plan.
At an average of 885 square feet per unit, the average unit size proposed for The Met is lower than
recently approved projects in the MacArthur Place area. The proposed project proposes a higher
percentage of 1- bedroom apartments that have a small overall unit size. The following table details the
1- bedroom average unit size.
75A -13
Tie
Geneva
Nexus
Lyon
The Met
Piinr►acle
COmmOnS
Towers
Studio
6%
0%
0%
0%
0%
1 bedroom
46%
7%
18%
51%
62%
2 bedroom
40%
87%
82%
44%
36%
3 bedroom
8%
6%
0%
5%
2%
Avg._
1,126 s . ft. 1
1,413 sq. ft. 1
1,413 s . ft.
902 sq. ft.
885 sq. ft.
The Housing Element identifies a need for larger units within future projects in order to accommodate
the larger family sizes unique to the City of Santa Ana. Staff has provided this comment to the
developer. The latest submittal proposes to include 5 three - bedroom units and 7 one - bedroom units
that also have a mezzanine /loft space in the plan.
At an average of 885 square feet per unit, the average unit size proposed for The Met is lower than
recently approved projects in the MacArthur Place area. The proposed project proposes a higher
percentage of 1- bedroom apartments that have a small overall unit size. The following table details the
1- bedroom average unit size.
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Table 6 — Average Size Analysis for 1- Bedroom Units
Table 6 illustrates that the majority of the units in The Met project, 62 %, have an average unit size of
only 758 square feet.
Reduction in Open Space Requirement — The open space provision within SD 43 requires that each
residential development provide usable open space at a rate of 250 square feet per unit.
The applicant estimates that the project provides for 202 square feet of open space per unit, however
this calculation includes two public plazas at the perimeter of the project, as well as miscellaneous
open space, which is comprised of building step - backs and pedestrian connections /spaces between
buildings that the developer felt were not part of the main open space elements. Neither of these can
be counted toward the requirement of usable open space, thereby reducing the usable open space per
unit to 173 square feet. Balconies that meet the minimum dimension of 6 feet in each direction with a
minimum of 90 square feet are provided on 127 of the units. The applicant is requesting an
amendment to SD 43 in order to reduce the required open space. The following table will illustrate
similar projects approved in the past and their open space allowance.
Table 7 — Open Space Comparison
The Met ern ace;Com
Tfle Mkt
Selroom Avera
Geneva
Commons
S. uae Feet
Lyon
The Met
Unit Model
No. of Units
S . Ft.
Total S . Ft.
Avg. S
. Ft.
IA
105
744
78,120
744
1B
56
756
42,336
756
1C
10
804
8,040
804
2F
7
912
6,384
912
Total
178
3,216
134,880
5
Average
1-
Bedroom Unit Size = 758
s
. ft, 62% of total units
Table 6 illustrates that the majority of the units in The Met project, 62 %, have an average unit size of
only 758 square feet.
Reduction in Open Space Requirement — The open space provision within SD 43 requires that each
residential development provide usable open space at a rate of 250 square feet per unit.
The applicant estimates that the project provides for 202 square feet of open space per unit, however
this calculation includes two public plazas at the perimeter of the project, as well as miscellaneous
open space, which is comprised of building step - backs and pedestrian connections /spaces between
buildings that the developer felt were not part of the main open space elements. Neither of these can
be counted toward the requirement of usable open space, thereby reducing the usable open space per
unit to 173 square feet. Balconies that meet the minimum dimension of 6 feet in each direction with a
minimum of 90 square feet are provided on 127 of the units. The applicant is requesting an
amendment to SD 43 in order to reduce the required open space. The following table will illustrate
similar projects approved in the past and their open space allowance.
Table 7 — Open Space Comparison
The Met ern ace;Com
":arisorr
SD 43 (Pinnacle
Apts.) )
Geneva
Commons
Nexus Towers
Lyon
The Met
250 s . ft. /unit
282 s . ft. /unit
250 sq. ft. /unit
200 s . ft. /unit
173 s . ft. /unit
75A -14
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 9
The Planning Commission previously requested that the open space amenities, such as the pool, be of
adequate size to be usable. In order to provide a guideline for assessing the adequacy of the open
space amenities, Table 8 provides a comparison of the amenities provided in the Lyon project, a
recently approved and relatively comparable project, with those proposed for The Met.
Table 8 — Amenities Comparison
Amenity Feature ;
The Pinnacle
Lyon -
The_Met
273 units'
':'
'3Q units
2.8 units
Pool
2,100 s . ft.
1,344 s . ft.
756 s . ft.
Club Room /Fitness Facility
6,830 s . ft.
6,750 s . ft.
3,050 s . ft.
Courtyards
18,900 s . ft.
19,140 s . ft.
22,100 s . ft.
Roof Deck
n/a
37,900 s . ft. in one deck
12,550 s . ft. in two decks
At its January 23, 2012 Planning Commission hearing there was discussion in regards to the overall
open space proposed, amenities and location of the space. The applicant has submitted a revised
open space plan (Exhibit 10). At the time of packet distribution, staff was continuing to evaluate the
recent submittal.
Amendment to the Development Agreement
In 2005, the City approved several entitlements, including a development agreement, with Mola
Development for the Geneva Commons development. The development agreement established
development intensity, permitted uses and development standards for the term of the agreement.
Further, the approved development agreement required certain improvements and public benefits
such as in -lieu fees for parkland dedication, payment of an inclusionary housing fee, and the
execution of an off -site improvement agreement with the Sandpointe Neighborhood Association.
The Geneva Commons project did not proceed and the property was acquired by Vineyard
Development, who has proposed a mid -rise residential development. The amendments to
Development Agreement No. 2004 -03 recognize Vineyard as the primary developer and owner of the
project and the primary deal points are essentially the same as those contained in the previous
Development Agreement. The amendments reflect the new scope of the project, such as an increase
in the number of units, as well as a new development design. All other elements of the development
agreement will remain (Exhibit 7).
The development agreement is a legal contract between the developer and the City that defines the
terms and nature of development proposed for the project site. This agreement establishes
development intensity, permitted uses and standards for the term of the agreement. In exchange for
the City vesting the proposed project, the development agreement requires certain improvements and
public benefits (Exhibit 7). The primary deal points of the agreement include:
75A -15
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 10
Ten Year Term: The right to build out the project as entitled for a period of ten years, with one
two -year extension.
2. Public Art: Committing one -half of one percent (.5 %) of the value of the project, as
determined by standard building permit valuation, for the installation on the site, at a prime
location visible to the public, of permanent work(s) of public art. The work(s) of public art
shall be in place no later than the first certificate of occupancy for the project and shall be
maintained in perpetuity by the property owner(s). In the event the project is not constructed,
the developer shall donate an amount equal to the one -half of one (0.5) percent public art
commitment to the City for acquisition and installation of public art at a City designated
location no later than the end of the term of the agreement.
3. Park In -Lieu Fee: Paying the City a fee of $35.50 per square foot for parkland dedication in
lieu of the dedication of parkland as required in the City's Subdivision Ordinance (Section 34-
204 et seq. of the Santa Ana Municipal Code). Additionally, the fee may be increased yearly
by the average rate of increase in land costs in the City of Santa Ana, as that increase is
established by an independent trade publication or source specified in the Agreement. The
fee shall be paid prior to issuance of a building permit. Based on the development proposed,
this is expected to amount to a fee of approximately $2.1 million.
4. Inclusionary Housing Fee: Paying the City a $3,000.00 per unit inclusionary housing fee prior
to issuance of each building permit. The developer may be relieved of this requirement if it
enters into an agreement with the Housing Authority of the City of Santa Ana to either
rehabilitate and sell or lease, with affordability covenants as required by State law, 42
inclusionary housing units and /or provide for up to 60 percent of these inclusionary units to
moderate income residents at its project. Based on the development proposed, this is
expected to amount to a fee of approximately $852,000.00.
5. CC &R's: Preparation of Covenants, Conditions and Restrictions (CC &R's) for the project that
include provisions such as allowing no more than four residents per unit, requiring the units to
be owner- occupied and at no time may the entire unit be rented, limiting home based
businesses to those allowed by the Municipal Code, and establishing a significant financial
penalty (i.e., the maximum permitted by law) to be imposed by the Home Owners Association
(HOA) to any member who violates these provisions.
Tentative Tract Map
Although The Met project is a proposed rental project, the applicant is requesting approval of a
vesting tentative tract map for condominium purposes. Based on a review of the vesting tentative
tract map by the Planning Division and Public Works Agency, the project has been designed to be in
compliance with the applicable development standards found in Chapters 34 (Subdivision) and 41
(Zoning) of the Santa Ana Municipal Code and the SD -43 zoning document, if amended (Exhibit 8).
75A -16
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 11
The documents allowing the sale of units, including the subdivision map and covenants, conditions
and restrictions (CC &Rs), will be recorded for the Met project as a condition of approval, which
allows Vineyard the ability to sell units in the future.
Site Plan Review
Section 41- 593.5(c) of the Santa Ana Municipal Code requires a review by the Planning Commission of
all plans within a specific development plan area to ensure the project is in conformity with the plan's
development standards. As previously discussed, the proposed project lies within the MacArthur Place
District Center Specific Development (SD 43) and the applicant has requested several amendments to
the SD in order to accommodate the project. In addition to analyzing the project's conformance with
the zoning standards, Site Plan Review also addresses project features such as architecture,
landscaping, amenities, public realm features and building materials.
Remnant Property
The project site for The Met is a 3.1 acre parcel and, as proposed, the apartment project and its
attendant improvements will only occupy 2.5 acres, leaving a remnant of 0.6 acres. The proposed site
plan treats this remnant as an area that is not integrated into the project and that will include perimeter
trees to screen the vacant lot. It will not exist as a separate legal parcel. Although there is no proposal
at this time, the developer has stated that they wish to reserve this remnant for potential future
development, and, as such, have not integrated it into a comprehensive site plan. If the proposed
project is approved, the remnant will not be vested with any development rights, nor will it have any
permitted use, such as additional open space for the project's tenants. If the developer, or subsequent
property owner, wish to develop the remnant in the future, the property would need to go through a
new entitlement process that could include a zone amendment, parcel map and environmental review.
Planning Commission Review
On January 23, 2012 the Planning Commission conducted a public hearing to consider the adoption of
the various discretionary actions. During the hearing the public provided oral and written testimony
regarding the actions required for the proposed Met project. Following the public hearing, the Planning
Commission continued the item to the February 13, 2012 hearing in order to allow all of the Planning
Commissioners an opportunity to be present.
Public Notification
The project site is not located within a neighborhood association, but is adjacent to the Sandpointe
Neighborhood Association. Given Sandpointe's involvement in the entitlements for MacArthur Place
and MacArthur Place South, City staff directed the applicant to meet with the Association Board to
discuss and review the revised project. A meeting occurred in November 2011. A follow -up
meeting was held on January 18, 2012 to provide an update and obtain feedback on the proposed
project.
75A -17
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 12
Finally, the contacts for this Neighborhood Association were notified by mail 10 days prior to this
public hearing.
Further, through the California Environmental Quality Act process, the neighborhood contacts, as well
as adjacent properties and public agencies were notified of the release of Mitigated Negative
Declaration (MND) prepared for the project and invited to provide comments. The notice identified the
environmental process, availability of documents and contact information.
The project site itself was posted with two notices advertising this public hearing, a notice was
published in the Orange County Reporter and mailed notices were sent to all property owners within
500 feet of the project site, as well as concerned citizens listed on the Permanent Notification List.
The City received written comments on the MND, which are contained within the Final MND, and
was also contacted by the MacArthur Place Business Association requesting that the applicant
contact them to comply with the CC &R's requiring that the project be brought before the Association
for architectural review. At the time of this printing, no additional correspondence, either written or
electronic, had been received from any members of the public.
CEQA Analysis
As part of the City's permitting process, the proposed project is required to undergo an environmental
review in accordance with the California Environmental Quality Act (CEQA). In accordance with the
CEQA, the recommended actions have been reviewed through a Mitigated Negative Declaration
(MND), Environmental Review No. 2010 -46. Section 15063 of the State CEQA Guidelines and
Sections 15070 -15075 of Article 6 guide the process for the preparation of a mitigated negative
declaration.
This MND, as required by CEQA, contains 1) a project description; 2) a description of the
environmental setting, potential environmental impacts, mitigation measures for any significant effects,
and consistency with plans and policies; and 3) names of preparers. The mitigation measures included
in this IS /MND are designed to reduce or eliminate the potentially significant environmental impacts
described herein. The scope of the MND evaluates the proposed project's effects on the following
resource topics:
• aesthetics
• agriculture and forestry resources
• air quality
• biological resources
• cultural resources
• geology /soils
• greenhouse gas emissions
75A -18
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 13
• hazards & hazardous materials
• hydrology /water quality
• land use /planning
• mineral resources
• noise
• population /housing
• public services
• recreation
• transportation /traffic
• utilities/ service systems
The City prepared a draft MND and posted the Notice of Intent (NOI) to adopt an MND at the
Orange County Clerk's office; the NOI was published in the Orange County Register on November
14, 2011. The City circulated the draft MND for a 32 -day public review between November 14, 2011,
and December 16, 2011. The draft MND was available for public review at the Santa Ana City Hall,
the City of Santa Ana Main Library, and on the City's website.
This final IS /MND contains the original draft IS /MND as published, as well as comments received on
the draft IS /MND and the responses of the lead agency to significant environmental points raised in the
review and consultation process. The intent of the final IS /MND is to provide a forum to air and
address comments pertaining to the analysis contained in the draft IS /MND and to provide an
opportunity for clarification, corrections, or minor revisions to the draft IS /MND as needed.
Comments were received during the public review period. Pursuant to Section 15088 of the State
CEQA Guidelines, the City, as the lead agency for the project, has reviewed all comments received
on the draft IS /MND (Exhibit 9).
As a result of the environmental analysis, mitigation measures have been provided to address
potential environmental impacts. A list of these mitigation measures are found within the MND
document. Mitigation measures have been outlined to address potential impacts on air quality,
biological resources, geology /soils /seismicity, greenhouse gas emissions, noise, public services,
and transportation and circulation.
Airport Land Use Commission Review
In accordance with State law, the zoning ordinance amendment and the project's close proximity to the
John Wayne Airport requires the project to be submitted to the Airport Land Use Commission (ALUC)
for a determination of consistency with the Airport Environs Land Use Plan (AELUP) for John Wayne
75A -19
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 14
Airport. To comply with this mandate, the City will be referring the project to the ALUC. Submittal to
ALUC cannot occur until the FAA has provided clearance and after the Planning Commission action,
but prior to City Council action. An application has been submitted for FAA review and clearance and
is pending, though such clearance is expected given the project's height as compared to the other
buildings in the immediate vicinity.
After the Planning Commission hearing of January 23, 2012, staff received from the FAA written
documentation of no hazard to air navigation for the Met at South Coast. This determination allows
staff to submit to the ALUC for a determination of consistency. On February 1, 2012 staff submitted a
request for determination. The item is anticipated to be placed onto the ALUC's February 16, 2012
agenda.
Conclusion
Based on the analysis provided within this report, staff recommends that the Planning Commission
recommend that the City Council approve the amendment to Development Agreement No. 2004 -03,
Zoning Ordinance Amendment No. 2012 -01, Vesting Tentative Tract Map No. 2012 -01 as
conditioned and Site Plan Review No. 2012 -01 as conditioned.
The staff analysis identified areas where the proposed project did not meet the standards set by
other projects recently approved within the MacArthur Place area, as well as identifying portions of
the plans that are lacking in information. Conditions of approval have been included in the attached
resolutions to require more detailed plans. Should the Commission have additional concerns about
the proposed project, it is recommended that additional conditions and /or additional Commission
review be considered.
SK:jm
skheportsWhe W421312.pc
75A -20
ZOA No. 2012 -01, DA No. 2004 -03,
VTTM No. 2012 -01, and SPR No. 2012 -01
February 13, 2012
Page 15
Attachments:
Exhibit 1 — General Vicinity Map
Exhibit 2 — Land Use Map
Exhibit 3 — Site Plan
Exhibit 4 — Floor Plan
Exhibit 5 — Building Elevations
Exhibit 6 — Landscape Plan
Exhibit 7 — Amendment to the Development Agreement
Exhibit 8 — Vesting Tentative Tract Map
Exhibit 9 — Final Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program
Exhibit 10 — Open Space Plan
75A -21
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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
EXEMPT FROM RECORDING FEES
GOVERNMENT CODE § 6103
AMENDED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Dated: January 23, 2012
EXHIBIT 7
75A -65
USTAT791) AND NO AMENDED DEVELOPMENT AGREEMENT BETWEEN
THE CITY•OE SANTA ANA AND
GENEVA VDC AT THE MET, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY
This REST -A BD AND NOVATBDAMENDED DEVELOPMENT
AGREEMENT ( "Agreement ") is entered into between THE CITY OF SANTA ANA, a charter
city and municipal corporation duty authorized under the Constitution and laws of the State of
California (referred to herein as "City ") on the one hand, and COASTAL RIM PROPBRMES;
INC., CAL1F0RNL&-WRPGRAT4QN-and GBNBVA GOMMONSVIk AT THE MET,
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (ee11ee!We4 referred to herein as-
"Owner" or "Property Owner ") on the other' band.
1. RECITALS. The Amended Agreement is entered into with reference to the
following facts;
1.1 Purpose. (1) The purpose of this Agreement is to facilitate the
development of a small portion of the real property which was the subject of a Development
Agreement entered into on January 4, 1988 and recorded as Document 88- 260709 in the Office
of the Recorder of the County of Orange (herea"- the "Original Agreement "). The Original
Agreement was subsequently amended on or about June 4, 2001, by Document No. 20010429519
the Office of the Recorder of the County of Orange. The real property which was the subject of
the Original Agreement is zoned by the City as Specific zoning District No. 43 ( "SD -43 "), On
April 4, 2005, the City entered into a Deyeloprnent Agreement (the "2005 A reement" ) with
Coastal Rim Properties, Inc. and Geneva Commons, LLC (collectively referred to herein as
"Coastal Rim ").
(2) A portion of the real property covered by the Original Agreement
was subsequently acquired by G mek Coastal Rim, who hm applied to the City to amend SD -43
and have approved a new tentative map, and other entitlements.
(3) The City and Owner agree that the changes Owner seeks in the
Original 2005 Agreement substantiate the need to replaee amend the Original Agreement with
the instant Development Agreement, rendering the Original Agreement and the 2005 Agreement,
and any ef4ts amendments thereto, null and void as applied to Owner's Property (as the word
"Property" is defined in seetlorr Section 2.3 herein).
(4) As more particularly set forth in seetisn Section 2.4 of this
Agreement, Owner has proposed eenstr eting-aa -developing the northeast corner of MacArthur
Boulevard and Imperial Promenade an . m° + °'y''7O • „'• .,,.n om prejeet eensiating
lu
of an 18 Fesidentiat lovel high *i e lrejeet -air ui- lding, together -with
appFoximately 13,000 s feet oc anaillary retail, of which no ,
be-d ed' or L'take- et }t'- '- restaurarrte with a S -stay, multi - family apartmen t
community consisting of 284 residential units, with 2 levels of subterranean parking, and a level
of podium deck parking in 2 separate buildings (the "Project ", as further defined in Section 2.4
[rl�Q•1�
herein).
1,2 Code 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, 43.
(3) This Agreement will permit achievement of goals and objectives as
reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all
applicable Specific Plans and Specific Development District No, 43.
(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 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 represent benefits which would not otherwise be
required as part of the development process,
1,3 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. The Property is currently vacant.
1.4 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.
1.5 Planning Commission - Council Hearings, On November 22, 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
OwnerCoastal Rim's application for this the 2005 Agreement. The Planning Commission
recommended to the City Council of City that it execute "the 2005 Agreement, On April 4,
2
75A -67
2005, the City Council of the City of Santa Ana ( "Council "), after providing notice as required
by law, held a public hearing to consider the- OwnerCoastal Rim's application for the 2005
Agreement, which the Council approved by adopting Ordinance No NS -2680 on April 18, 2005.
The Owner has submitted a new and modified site plan review package to the City amending the
previously approved plan On January 23 2012, the Planning Commission of the City, after duly
giving notice pursuant to Government Code sections 65090 and 65091 held a public hearing to
consider the Owner's application for this Ag eement The Planning Commission recommended
to the Council that it execute this Agreement. On [insert date]., the Council, after providing
notice as required by law, duly held a public hearing to consider the Owner's application for this
Aareement.
1.6 Council Findings. The Council finds that this Agrcement and its
�utposes is are consistent with Government Code Sections 65864 through 65869.5, and with the
objectives, policies general land uses, and prod am specified in the General Plan, applicable
Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the
City. Among other things, this Agreement will reduce uncertainty in planning for and securing
ensure attainment of the maximum effective utilization of resources within the CLtyat the least
cost to its citizens, expand the availability of high— quality, affordable housing stock to the City's
citizens contribute to the economic stability and revitalization of the community, enhance the
City's property tax revenues, and otherwise achieve the goals and purposes for which
Government Code Sections 65864 through 65869.5 were enacted.
1.7 City Ordinance. On Aia418,2005 (insert date] the Council adopted
Ordinance No. NS- approving this Amended Agreement. The ordinance becomes
effective thirty (30) days thereafter.
2. DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Final Design" means the final design documents for work of public art,
which is set forth in greater detail in paragraph Section 5.8 of this Agreement.
2.2 "Property Owner" or "Owner" means Coastal Rim � ^per ies; W., a
Califemia Cerperatio"nd eneve Comm collectively VDC at the Met, LLC, a California
Limited Liability Company and its successors or assigns who or which may acquire Owner's
equitable and legal interest in the Property, being the person, persons, or entity having a legal or
equitable interest in the Property-,and-includes riu^ °min
interest.
2.3 "Property" is the real property described in Exhibit A and referred to in
Exhibit B.
14 "Project" is the development of the Property as generally set forth in
Section l .1(4) of this Agreement, Environmental Review No. 2002 215 , Tentative
Tract Map No, 2004 -05 (County Map N6. 16556 - ), Conditional Use Permit
��_Q196�
2004 02 , Variance No. X894 —ki __, Zoning Ordinance Amendment No.
2904 -95 (amending SD -43), and Site Plan Review No, 2894 -06
25 "Public Art Plait" means the conceptual Plan attached hereto as Exhibit
C. The parties recognize that the Plan does not set forth certain elements of the Public Art to be
installed in conjunction with this Project, including the location of the Public All, and is
therefore subject to refinement. prior to the time of installation, by agreement of the Owner and
the City's Executive Director of Planning and Building.
3. EXHIBITS. The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
Designation Description in Section
A Property Legal Description 1.23
B Property Graphical Description (Site Plan) 1.23
C Public Alt Plan
2.5
D Cooperative Agreement for Off -Site Improvements 5.1.1
E Remaining Offsite Mitigation Measures 5.1.2
4, GENERAL PROVISIONS.
4.1 Property Subject to the Agreement. Until released pursuant to the
provisions of Section $.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 be for ten (10)
years from the date that the Council adopts its ordinance approving this Agreement ( "Effective
Date" J; 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.
4.3 Assignment. Owner shall have the right to transfer or assign the Property,
and its interests in and rights and obligations tinder this Agreement, in whole or in paid, to any
person, entity (public or private); partnership, joint venture, firm or corporation at any time
during the term of this Agreement; provided, however, that except as provided in section 4.11 of
this Agreement, the rights of Owner tinder 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.
4
75A -69
Nwr shall --tThe rights of the Owner hereunder shall not be subject to assignment by attachment,
execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment
or transfer shall be wholly void and of no force and effect unless such written consent thereto be
obtained from the Council. Such transferor assignment shall not relieve Owner of any duty,
obligation or liability to City without the consent of the City.
During the tern of this Agreement, any approved assignee or transferee of (lie
rights under this Agreement shall observe and perform all of the duties and obligations of Owner
contained in this Agreement as such duties and obligations pertain to the portion of the Property
transferred or assigned. Any and all approved successors and assignees of Owner shall have all
of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If
the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated,
assigned, or transferred to persons for development by them in accordance with the provisions of
this Agreement. 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.
4.3.1 Permitted Assignments. The prohibition against transfer of ownership of
the Property as defined in section 4.3 above shalt not apply to, and the City hereby consents to,
the following:
a. Associations, including limited partnerships, limited liability
companies, or joint ventures with other entities for the purpose of performing Owner's
obligations under this Agreement, provided Owner retains sole operational and managerial
control.
b. Easements or temporary permits to facilitate development of the
Property.
C. Deeds of trust or other financing documents executed for the
purpose of securing loans to Owner made to finance the development of the Property, and
transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such
deed of trust or other, similar, financing documents and any subsequent transfer by any such
person or entity.
4.4 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868.
The term "Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved 'and executed.
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
retner#ies- previciefl -ir eetie.. 8.4 of this Agreement shall .,o"islud"nd City shall not be liable
for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy,
action or inaction, or any legal proceeding arising out of this Agreement exeept as May-be
(Sj-ef-th�rt.
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4.6 Hold Harmless, Property Owner agrees to and shall hold City, its
officers, agents, employees, consultants, special counsel, and representatives ,( "City Parties",
collectively) 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 due to negligent acts, omissions or willful misconduct, 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, and to the extent of Prop"I Owner's negligent acts,
omissions or willful misconduct in the performance of this Agreement This hold harmless
Agent 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 Section or due by reason of the terms of, or effects, arising from this Agreement or
any approval or certification by the City relating to the Project, regardless of whether or not the
City prepared, supplied or approved this Agreement, plans or specifications, or both, for the
Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the
defense of the City, including fees and costs for special counsel to be selected by the City,
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 Property Owner's negligent acts omissions or willful misconduct in
the performance of this Agreement, City may make all reasonable decisions with respect to its
representation in any legal procceding.
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 transferees and assigns.
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 or
partnership. 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:
City Manager
City of Santa Ana
20 Civic Center Plaza M -31
P.O. Box 1988
Santa Ana, California 92702
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and,
telefacsimile (714) 647 -6954
City Attorney
City of Santa Ana
20 Civic Center Plaza M -29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
If to Owner, to:
C-.AAqfAl ��sperEies,Ms;
•139 -- East- Alten-Avenue
Santana, GaWem i 7•
Attentiew Ffmee Meta
WeAesimile-. (714) 708 08B
VDC at the Met. LLC
828 North, Ogden Drive
Los Angeles, CA 90046
Attention: R, an O ulg nick
Facsimile number:
A party may change its address by giving notice in waiting to the other party.
Thereafter, any notice, tender, demand, delivery, or other conununication shall be addressed and
transmitted to the new address or facsimile number. If sent by mail, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given three (3) days
after it has been deposited in the United States mail, duly registered or certified, with postage
prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given twenty -four
(24) hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above. For purposes of calculating these time frames, Nveekeiids,
federal, state, County, or city holidays shall be excluded.
5. DEVELOPMENT Or THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. fn accordance with (lie terms
of Government Code section 65866, the City and the Owner agype that Tthe 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) zoning design, setbacks, density, height, size of structures,
permitted uses, and intensity of use of the Property (collectively, the "Existing Development
Regulations" ), shall be those rules, regulations, and policies applicable to the Property as of the
effective date of this Agreement.
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5.1.1 Cooperative Agreement for Off -Site Improvements. TlIeOwfiev
Coastal Rim and the City, together with other parties, have coneurtent-ly executed a Cooperative
Agreement for Off Site Improvements concurrently with the Original nal Agreement, a true and
correct copy of which is attached hereto as Exhibit D and incorporated herein by this reference.
Owner agrees to comply in all respects with its obligations under said Agreement, and agrees and
acknowledges that a material breach of said agreement shall constitute a material breach of this
Agreement. Despite anything to the contrary, Owner is not required to construct atry offsite
improvements other than as expressly required in this Agreement, in any environmental
documentation related to this Project, or in any condition of approval in any discretionary action
related to this Project.
5.1.2 Remaining Offsite Mitigation Measures. The additional offsite
mitigation treasures, beyond those set forth in the agreement referenced in section 5. 1.1 of this
Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement.
All fiends or costs for offsite mitigation measures required pursuant to the approvals set forth in
section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said
approvals, or (2) no later than recordation of the final subdivision trap for the Project; or U3
issuance of certificates of occupancy, whichever comes first.
5.2 Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Government Code Section 65866, and Pardee Construction Co. v.
City of Camarillo (1984) 37 CaDd 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right
to enact police power regulations on matters not covered by section 5.1 of this Agreement,
including without limitation:
a. Regulation of (lie rate and amount of growth is not abrogated by the City,
in that the parties agree and acknowledge that the City hereby retains the police power to provide
for change in regulations, ordinances, policies, and plans relating to moratoria, building permit
allocations,. timing, and sequencing of development and the financing and provision of adequate
public facilities at the time of development.
b. 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. As used
herein, "Existing Development Regulations" shall not include municipal laws and regulations that
do not conflict with Owner's vested rights to develop and use the Property in accordance with this
Agreemctrt. Owner and its successors and assigns and all persons ford entities in occupation of any
portion of the Property shall comply with such non - conflicting laws and regulations as niay 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;
75A -73
(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 Ades of general City-wide application.
C. In recognition of the need for City services, including but not limited to
police, fire and park, to meet the demand generated by new, cumulative residential development in
the City, District, Owner will not object to participation in a conununity facilities district,
assessment district, or other similar Rinding mechanism, to provide Rinds for such services, should
any such a mechanism be established.
d. No vested rights as to any requirements in this section either as to existing
or Riture regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, including without
limitation the facilities set forth in the Public Art Plan, 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 FAA Approval. Owner shall obtain and maintain, during the term of the
agreement, any and all necessary approvals from the FAA for the Project. Should such approvals
lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the
City shall have the right to terminate the agreement,
5.4.1. Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigation easement in a form approved by the City
Attorney, which shall be recorded with the Recorder of the County of Orange. The avigation
easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the Project including but not
limited to noise, sound, vibration, fumes, Riel particles, dust, discomfort or other environmental
effects incident to aircraft operations as well as any inconvenience or annoyances caused by the
operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to
enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property
for the unobstructed use, passage or operation of all types of aircraft and the right to create or
generate all things and consequences to the Property that may be, or may be alleged to be,
incident to or resulting from the use of said Airspace and any and all related aircraft and airport
operation. The City shall be the benefited party in the avigation easement, but said easement
shall'be assignable by the City to a third party, including but not limited to John Wayne Airport
(SNA), without consent of Owner.
5.42. Limit an Fast bead - acrd- T-alEeut Restaurants. M no time shall +�,n
Owner- pernitinere -than 3,-09A- square feet of !he .1--e—ail spaeo in We Projeet to be deyeted to «
f e » n " k� -6�#t t r ms. For - ,purposes of Na A gryenwnt restaurant shall not be
2ti ' n
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deemed to be a "fast feed" or "fako out" restfairant if it provide sit -1—m%-AI-Ing areas and.
emAusive -table ee -fey ar deking- on"eliyering- meal"n"evemges,— nd4ok" tit seFY
angel} services;
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, including but not limited to,
changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall
this Agreement prevent the City from denying or conditionally approving any subsequent
applications for land use entitlements based on such existing or new rules, regulations, and /or
policies; provided, however, that such new rules, regulations, and official policies are of general
application to all development within the City and are not imposed solely with respect to the
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.
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.
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 all development in the City (although actual fee rates may
vary within the City where bona fide Citywide fee zones have been established), (2) are not
applicable primarily or only to this Project, of and (3) are not imposed to either (a) mitigate,
offset or compensate for Project impacts which were analyzed in the negative declaration
prepared for the Project, or (b) duplicate any project design features conditions of approval,
Agreements, or mitigation measures contained in the Development Plan or this Agreement. The
current entitlement fees shall be locked in as of the date of this Agreement, and there shall be no
additional entitlement fees for the Project. However, building permit fees, including fees for now
permits required after the date of this Agreement, will not be locked in at any rate, but rather will
be the amount at the time of pulling building permits. Any deferral of development impact fees
will only be allowed in accordance with Santa Ana Ordinance No. NS -2814 adopted by the Santa
Ana City Council on February 22, 2011,
5.8 Development, Construction and Completion of Work of Public Art.
In consideration for the extraordinary and significant benefits set forth in this Section, the Owner
has been legally vested under pafagraplt Section 5,1 with regard to the zoning, permitted uses of
land, density, height, setback, design, size of structure and intensity of use of the Property.;
Owner shall include within the Project at a prime location visible to the public, a single or
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grouped permanent work of public art (the "Public Art "). The Public Art shall conform in all
respects to Exhibit C of this Agreement.
Facilities specified in seetien Section 5.8.1 below must be designed and/or
constructed prior to (lie triggering event. In the event that Owner fails to meet either of the
triggering events set forth in seetietr Sectio n 5.8.1., below, Owner shall pay. the City an amount
equivalent to one -half of one percent (0.5 %) of the estimated value of its Project, as conclusively
specified by the Executive Director of the City's Planning and Building Agency, to be used by
the City to acquire other public art for other locations within the City, in which case, Owner will
not be considered in default under this Agreement.
5.8,1 Work of Public Art.
Items to Be Complete Triggering Event LE& New Use or New Area
1. Submit Final Design of Public Art. Prior to issuance of first Building Permit or five
Final design must conform to Public Art (5) years from the effective date of this Agreement,
Plan. whichever comes first.
2. Install Public Art. Prior to City's issuance of the first Certificate of
Occupancy for any building or structure, or the
expiration of the term of this Agreement,
whichever comes first.
With respect to the Final Design, Owner shall complete all construction and
development, shall submit all plans, drawings, and other documents, and perform all of its
obligations under this Agreement within the times specified above. During periods of
construction of the work of public art encompassed in the Public All Plan, Owner shall submit to
the City a writton report of the progress of the construction when and as reasonably requested by
the City. The report shall be in such form and detail as may be reasonably required by the City,
and shall include a reasonable number of construction photographs (if requested) taken from the
last report by Owner. Development scheduling or date or times of performance may be subject to
revision from time to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring fiirther notice and public hearing.
5.8.2. Inclusionary lousing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit as a condition of issuance of each building permit. This fee shall
anoly to all units develoaed on the existing three and one -tenth (3.1) _aross acres. This fee shall
be used by the City for planning (including but not limited to preparation of one or more
elements of its general plan or for zoning amendments), conceptual design, final design, bid
preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill,
and/or construction of new or substantially rehabilitated existing affordable housing in the City.
Alternatively, Owner may at any time cease making such payments if it enters into an agreement
with the Community Redevelopment Agency or the Comnunity Development Agency of the
City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability
covenants as required by State law, 43 inclusionary housing units totaling fifteen percent (that
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be-n-15%) of the housing units proposed for the Project as provided by Health & Safety Code
section 33413(b)(2)(A)), and/or (b) provide for up to sixty percent (60 %) of these inclusronary
units to moderate income residents at its Project, consistent with Health & Safety Code section
33413(b)(2).
5.8.3 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.
5.8.4. In -Lieu ParIc Development Fee. The Owner shall pay an in -lieu park
development fee amount equivalent to the Park Dedication requirement te£e}eneed -in the -site
plan - review- letter -for Iite Nan Rovie . Ne. _0 96. The fee shall be assessed at the value of
$35.50 per square foot of area to be dedicated pursuant to the standard established by section
34 -204 et seq, of the Santa Ana Municipal Code, as specified in said City's site plan review
letter; provided, however that the fee may be increased yearly beginning twelve months
following the effective date of this agreement, by the average rate of increase in land costs in tine
City of Santa Ana, as that increase is established by the "Construction Cost Index -Los Angeles,"
published by Engineering News - Record, or substitute index chosen by the Executive Director of
Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance
of each building permit. The City shall use said fees for new parkland, capital improvements at
existing parks, and deferred maintenance at existing parks (tip to a maximum of fifty percent of
amount of the fee), and seventy five percent (75 %) of said fees shall be utilized by the City in the
Quadrant of the City (as set forth in the City's Park A &D Fee program) in which the Project is
located. If not used or appropriated this fee shall be returned to Develops Owner, consistent
with the provisions of (and subject to the exceptions contained within) the California Mitigation
Fee Act, Government Code § 66000 et sett.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC &R's) must be provided and approved by the Planning and Building Agency's
Executive Director for the project prior to the issuance of the first- building perini recording of the
Final Man. Such CC &R's must contain at a minimum, the following:
(1) No more than four residents per unit, except that for three - bedroom
units, there shall be no more than five residents per unit.
(2) '_-""`xl7 -the exte—alt permitted by 1.. all nid -e-Du ffil and live we+k ::`::4v
shall remain ee"iGd and shall not allow rental of a entire uCti C�
(32) No home occupancy shall be permitted in a unit, except in
accordance with section 41 -192 et sett, of the Santa Ana Municipal Code.
(,13) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC &R's in the event of
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damage.
(54) Disclosure and release: CC &R's shall provide notice to prospective
owners of the urban character of the City and this area, including but not
limited to the permitted uses of the property and buildings in the immediate
area of the development (e.g., MacArthur Place, Griffin Towers, and
surrounding property zoned and /or devoted to commercial use), and shall
provide a release of all claims against the City which may arise from or
relate to the disclosed matters.
(05) Terms and Content, -
i. CC &R's are to be in effect in perpetuity.
ii, Any proposed modifications to the CC &R's will require
approval by the Agency's Executive Director.
iii, CC &R's shall provide a significant financial penalty (i.e., th®
�er�t�ittefl- lay -kaw) that shall be imposed by the Home
Owner's Association to any member who violates these provisions
If the Project requires a conversion from rental units to condominiums at the time
of recording; the Final Man the Owner must abide by and comply with the requirements and_
conditions of Santa Ana Municipal Code sections 3d -331, et seq., pertaining to residential
conversion projects, prior to recording of the Final Map,
5.9 Responsibility li�for Costs of Work Oof Public Art. The City and
Owner agree that Owner shall be responsible for all costs associated with the design,
construction, maintenance and repair of the work of public at provided for in the Public Art
Plan.
5.10 Moratoria. Moratoria enacted by the City for the public health, safety,
and welfare, which are imposed on the Property or Project, shall toll the time periods set forth in
this Agreement.
5.11 City to Receive Contract Documents. Owner shall furnish City, upon
written request, copies of contracts and supporting documents relating to the work of public art.
5,4 -312 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.
5.4413 Compliance Wtivith Governmental Requirements. Subieet to and as
otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design,
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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, the City, or any other political subdivision in which the
Property is located, and of any other political subdivision, agency, or instrumentality exercising
jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and
local occupation, safety and health laws, rules, regulations and standards, applicable state and
labor standards, applicable prevailing wage requirements, the City zoning and development
standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as
they apply to the Properly and the Project, and all other provisions of the City and its Municipal.
Code (as they apply to -the Property and the Project), and all applicable disabled and handicapped
access requirements, including, without the limitation, the Americans With Disability Act,
42 U.S.C. § 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.
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 in conjunction with the Project is false or proves to have been false in
any material respect when it was made,
(2) ' A finding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 that upon the
basis of substantial evidence the Property Owner has not complied in good faith with one or
more of the terms or conditions of this Agreement-,
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(3) Failure to comply with Governmental Requirements regulations;
(4) Any other event, condition, act, or omission of Owner, or of its
officers, agents, employees, consultants, special counsel, or representatives, which materially
interferes with the intent and objectives of this Agreement.
7.2 • Procedure upon Default.
(1) Upon the occurrence of an alleged default, City shall give Property
Owner (the "defaulting party ") thirty (30) 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 thirty (30) 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 thirty (30) day cure period. For defaults that cannot be
cured within said thirty (30) day cure period, City may terminate or amend this Agreement in
accordance with the procedure adopted by the City should at any time 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.
(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 requited.
(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, unless such an activity constitutes a breaclt
of this Agreement by the City, or the City undertakes such an activity which renders impossible
Owner's performance of its obligations or exercise of any of its rights vested under this
Agreement.
(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 Property Owner be
entitled to any damages against City upon lawful termination of this Agreement.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
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either party may institute legal action to cure, correct, or remedy any default or breach, to
speciIcally 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 RE, LE, ASES ON PROPERTY.
8.1 Discretion to Eneumber. This Agreement shall not prevent or limit
Owner, in any manner, at Owner's sole discretion, fiom 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 scouring financing with respect to the Property or its improvement.
8.2 Errtitlenterrt 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 thirty (30) days following the date of default. Qty
mgy modify or add to the provisions of this Section 8.2 at the request of any institutional lender
or pension trust ppoviding financing so o long as such requested modifications or additions pertain
only, to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of
this Agreement.
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,
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 Arnendnients. 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
trust 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
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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 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning
any improvements to the Property or in connection with the Project; and (c) Owner shall have the
Rill 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 Thne 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 69 have been entered into or the action or inaction of any other
affected governmental jurisdiction prevents or precludes 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 ill good faith ill 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 Ci Council. Public notice of such hearing shall be given pursuant to
Goverment 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 Severability. If any term, provision, condition, or covenant of this
Agreement, or the application thereof to any party or circumstances, shall to any extent be held
17
75A -82
invalid or unenforceable the remainder of the instrument, or the application of such term,
provision cow ndition or covenants or the application of such term, .provision, condition or
covenant to persons or circumstances other than those as to whom or which it is held invalid or
unenforceable shall not be affected thereby and each term and provision of this Agreement shall
be valid and enforceable to the fullest extent uermitted by law.
911 Counterparts. This Agreement has been executed in one or more
counterparts each of which has been deeined an original, but all of which constitute one and the
Same instilment.
9.412 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10)
days following the effective date of this Agreement.
9.13 Estoppel Certificate, Either party may, at any time, and from time to
time, deliver written notice to the other party requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding
obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in
writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in
default in the performance of its obligations under this Agreement, or if in default, to describe
therein the nature and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt thereof. The City
Manager of the City shall have the right to execute any certificate requested by Owner hereunder.
The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees,
or other parties.
18
75A -83
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Propetly Owner.
Dated this ____ day of '20—
Approved as to Form:
:
JOSEPH A. Sl'RAKA
Interim City Attorney
THE CITY OF SANTA ANA
Lo
PAUL M. WALTERS
Interim City Manager
VDC AT THE MET, LLC,
A California Limited Liability Company
By
Ryan Ogulnick
Its Manager
19
75A -84
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE
On this day of , 200. , before me,
a Notary Public in and for said state, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city
that executed the within instrument, known to me to be the person who executed the within
instrument on behalf of the municipal corporation therein natned, and acknowledged to me that
such municipal corporation executed the within instrument pursuant to its bylaws or a resolution
of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the of ., the
that executed the within instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board.
WITNESS my hand and official. seal.
NOTARY PUBLIC
75A -85
EXHIBIT «A"
Property Legal DescriMion
REAL PROPERTY IN THE CI'T'Y OF SANTA ANA COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT I AS SHOWN ON EXHIBIT `B" OF LOT LINE ADJUSTMENT NO -98 -001 IN THE
CITY OF SANTA ANA, COUNTY OF ORANGE STATE OF CALIFORNIA, RECORDED
APRIL 9 1998 AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL B:
A NON - EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS
AND ACCESS AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210011 AND IN
THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 15, 1998 AS INSTRUMENT NO. 19980222444, AND IN
THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT
AGREEMENT RECORDED NOVEMBER 11, 2004 AS INSTRUMENT NO. 2004001056213,
ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A
HEREINABOVE DESCRIBED,
PARCEL C:
AN EASEMENT FOR THE CONSRUCTION, INSTALLATION, MAINTENANCE _ AND
REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS AS SET FORTH IN
THAI' CEK1'AIN _STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT
RECORDED APRIL 18 2005 AS INSTRUMENT NO, 2005000291720 OF' OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
[rl,Qq,l,
EXHIBIT "B"
PropeLty Site Plan
To be inserted
75A -87
EXHIBIT IBC"
Public Ail Plan
Public art valued at one -half of one percent (0.5 %) of the total Project building permit
valuation is required. Public art shall be comprised of a single art piece or grouped art pieces
to be placed at a final location to be determined as specified in paragraph section 2.5 of this
Agreement. The public art should invite participation and interaction, inspire, add local
meaning, interpret the community by revealing its culture or history, and/or capture or
reinforce the unique character of the new place. A comprehensive Public Art Plan indicating
compliance with this requirement, and which proposes specific pieces of art for specific
locations or applications, shall be submitted to the Planning Commission prior to the
completion of the project's first phase. All public akt approved by the Planning Commission
in the Public Ail Plan shall be completely installed as provided in paragmph section 5.8.1 of
this Agreement,
2. Art should be sited to complement features such as plaza or architectural components so that
the art is an integral part of the development site.
Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4. No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
S. All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination.
6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the
project site and may not be removed without the approval of the Planning Comrnission.-
7. Expenses Not Allowed from Art Allocation
i. Expenses to locate the artist (e,g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by tine artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
FWMOOIOO�
v, Lighting elements not integral to the illumination of the ail piece.
vi, Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
[r" -O20,
EXHIBIT "D"
Cooperative Agreement for Off-Site Improvements
*TC
COOPERATIVE AGREEMENT FOR
OFF -SITE IMPROVEMENTS
THIS Agreement Is entered into this - day of -, 2005, by and between
the SANDPOINTR NEIGHBORHOOD ASSOCIATION, INC., a California, non -profit public
benefit and federal 501(c)(3) corporation ( "Sandpointe "), the NEXUS DEVELOPMENT
CORPORATION /CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2,
LLC, a California Limited Liability Company (collectively referred to heroin as "Nexus"),
COASTAL RIM PROPERTIES, INC., a California corporation ( "Genova Commons'), the
COMMUNr Y REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body
corporate and politic (the "Agency "), and the CITY OF SANTA ANA, a charter city and municipal
corporation duly organized and existing under the Constitution and laws of the State of California
(the "City").
WITNBSSETH
A. Nexus has proposed constructing at Hutton Center a five level residential
condominium project, two 23- residential level condominium high -rise and one 24- residential level
condominium (for a total not to exceed 835 condominium units), together with ancillary retail not
to exceed 14,000 square feet (the "Nexus Project').
B. Geneva Commons has proposed constructing at the northeast comer of MacArthur
Boulevard and Imperial Promenade an approximately 278 -tint condominium project consisting of
an 18- residential level high rise project and an night -story building, together with ancillary retail
(the "Geneva Commons Project'),
C. Sandpointe is a non - profit corporation that serves as a conduit between the
Sandpointo Neighborhood ("Neighborhood") and outside community and political interests.
Sandpointe Neighborhood is a residential neighborhood of single family and some multi - family
homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of
approximately 800 residences. Sandpoint* does not have the authority to bind any individual
resident of the Sandpointe Neighborhood,
D. The Agency is a community redevelopment agency, as that term is defnaed in
California Health & Safety Code § 33100. In 1982, the Agency created the South Main
Redevelopment Project Area ( "Project Area"), and Nexus and Geneva Commons are located within
the Project Area.
I's. Sandpointe has identified certain physical improvements needed in the area of the
Neighborhood that are necessitated by or would in some way offset the impact of the two
development projects. Nexus and Geneva Commons desire to contribute towards the cost and/or
construction of those improvements to the Sandpointe neighborhood in addition to and to
EXHIBIT D
Ordinance No. NS -2660
Page 30 of 61
75A -91
supplement the rn�itigation measures and conditions of approval imposed by the City of their
respective developments. Those improvements are set forth in Exhibit A, attached hereto and made
a part hereof by this reference ("Improvements").
F. The Agency is willing to assist in the finding of the improvements but only from a
portion of the lax increment actually generated by the Nexus and Geneva Commons Projects and to
bind speoirled improvements that would reduce blight and benefit the Project Area.
0, The City's participation in this Agreement is limited to coordination of funding
and/or construction of certain, herein specified publicly owned improvements.
H. Nexus has agreed to construot some of the Improvements, and pay for the
construction of others, as more fully set forth below ("Nexus Improvements').
Geneva Commons has agreed to pay for a portion of the Nexus Improvements.
NOW, THEREFORE, the parties hereto do mutually agree as follows;
SCOPE OF WORK
A. Nexus shall construct and/or fluid the improvements identified as "Nexus
Improvements" in Exhibit A hereto according to the schedule set forth in Bxhibit B to this
Agroomont, attached hereto and incorporated herein by this reference. Nexus shall be entitled to
till use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements.
B. In consideration for Nexus' agreement to construct and/or fund the Nexus
frnprovomont, Geneva Commons agrees to contribute a sum equal to its pro -rata share of residential
units between itself and Nexus (which is currently twenty -five percent (25 0/,D) pursuant to those
numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus
Improvcments, towards the cost thereof payable at the time called for below. Notwithstanding the
foregoing, if Nexus has -not executed this Agreement prior to the date this Agreement becomes
binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day
upon which this Agreement has been executed by Geneva Commons, the City,-the Agency and
Sandpointo), then Geneva Commons pro -rata share contribution to the Nexus Escrow shall be
conclusively fixed at twenty-five (25 %) regardless of the actual number of residential units
approved for it and Nexus.
C, If the entire Nexus and Geneva Commons Projects are corfstructed, Agency shalt
cause the construction of the improvements identified as "Publicly -Owned Improvements" in
Exhibit A hereto according to the schedulo sot forth in Exhibit C to this Agreement, attached hereto
and incorporated herein.by this reference. The parties acknowledge and agree that the total cost of
the publicly owned improvements, including studies, design and overhead , shall not exceed Five
Million Dollars ($5,000,000.00).
EXHIBIT D
2 Ordinance No. NS -2880
Page 31 of 51
75A -92
2. COMP13NSATION AND MIITHOD OF PAYMENT
A, Nexus shall, within sixty (60) days of execution of tins Agreement, open an escrow
account at First American Title Insurance Company, 2 First American Way, Santa Ana, California,
or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for
deposit of !finds to be used to pay for the Nexus Improvements (referred to heroin as the "Nexus
Escrow').
B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow
Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of
this Agreement.
C. Prior to the deadline specified in paragraph 2,D, of this Agreement, Nexus and
Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the
Nexus Improvements, If, at any time, either Geneva Commons or Nexus determines that such
agreement is not possible, then the objecting party shall submit its dispute in writing, together with
any evidence upon whichit relies to the Executive Director of the City's Public Works Agency and
tho otter party . Within fifteen (15) days of its receipt of said notice, the non - objecting party shall
then have fifteen (15) days to submit any response it has to the City and the objecting party. The
Executive Director of the City's Public Works Agency or designee shall then, within thirty (30)
days of receipt of the response, if any, or the expiration of said deadline, inform both Geneva
Commons and Nexus in writing of the final determination of the estimated total cost, which all
parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter,
Nexus and Geneva Commons shall deposit their respective shares of the estimated cost of the
Nexus Improvements as set forth in paragraph I.B. of this Agreement, less $1,000,00, into the
Nexus Rwrow no later than the date specified in paragraph 2.1). of this Agreement.
D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building
permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance
of entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been
filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus
Escrow no later than (i) the date the first building permit is issued by the City for the Geneva
Commons Project, or (ii) a date ninety (90) days after the issuance of entitlements to Geneva
Commons, provided no litigation or referendum petition challenging Geneva Commons has been
filed and served on the City, whichever comes later.
BXBIBIT D
Ordinance No. NS -2680
Page 32 of 51
75A -93
E. The Agency shall pay the City its cost incurred by the City for the Publicly -Owned
Improvements set forth in Bxhlbit A to this Agreement; provided, however that total commitment
by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE
MILLION DOLLARS ($5,000,000.00). If the items set forth as Publicly -Owned Improvements In
Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and
absolute discretion, limit or eliminate Publicly -Owned Improvements set forth in Exhibit A;
provided, however, that the Agency shall proceed with the Publicly -Owned Improvements in the
order as set forth in said Exhibit.
3. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS
A. Nexus shall prepare and submit construction drawings and related documents for
items listed on Exhibit A to the City for review (including, but not limited to, architectural review)
and written approval as and at the times established in the Schedule of Performance set forth in
Exhibit B to this Agreement. The construction drawings and related documents shall be submitted
in two stages: (i) the Preliminary Site Plans and (ii) Final Site Plans,
B. During the preparation of all drawings and plans, City staff and Nexus shall hold
regular progress meetings to coordinate the preparation of, submission to, and review of
construction plans and related documents by the City. The City staff and Nexus shall communicate
and consult informally as ftNuently as is necessary to insure that the formal submittal of any
documents to the City can receive prompt and speedy consideration.
C. Any revision or correction of plans required by the City shall be deemed approved
by the Agency, Genova Commons and Sandpointe.
D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any
ownership interest in, or any right to use, the Preliminary Site Plans or the.Finai Site Plans
submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the
right to use any such plans or drawings to any person or entity.
4. APPROVAL OF NEXUS PLANS, DRAWINGS AND RELATED DOCUMENTS
A. The City shall have the right of reasonable review (including, but not limited to,
architectural review) of all plans, drawings and related documents including any proposed changes
therein, The City shall approve or disapprove such plans, drawings, and related (and any proposed
changes therein) within the times established in tine Schedule of Performance set forth in Exhibit B
hereto. Such approval shall not be unreasonably withheld.
B. Any disapproval shall state in writing the reasons for disapproval. The City shall
have the right to disapprove, in its reasonable discretion, any of Ilse Final Plans if the Final Plans do
not conform to the Approved Plans, the approved Preliminary plans or do not conform to Exhibit A
to this Agreement, or are incomplete.
EXHIBIT D
4 Ordinance No. NS -2680
Page 33 of 61
75A -94
C. The City shall state in writing the reasons for disapproval of the Final Plans within
sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60)
day period shall not be grounds for resubmittai.
D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the
plans, drawings or related documents in a manner that reasonably satisfies the reasons for
disapproval and shall resubmit such revised portions to tho City as soon as possible after receipt of
the notice of disapproval, Plans, drawings, and related documents receiving City approval shall not
be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related
documents comply with all Governmental Requirements.
S. COMMENCEMENT AND COMPL,IMON OF CONSTRUCTION OF NEXUS
1MPROVEMENTS
a. Nexus shall construct and/or fltnd, utilizing the Nexus Escrow, the improvements in
conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the
cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and
the approved Final Plans, exceeds the Rinds in the Nexus Escrow, Nexus and Geneva Commons
shall be solely resj�onsiblo for said costs, with each responsible for any additional cost to the same
percentage as Is set forth in paragraph I.B. of this Agreement, Nexus shall complete or fund, as the
case may be; the construction of the improvements in conformance with the schedule set forth in
Exhibit B to this Agreement,
b. The parties acknowledge and agree that the Block Wall identified as Item No. 1 on
Exhibit A will be constructed on the properties of dozens of individual homeowners in the
Sandpoint* neighborhood, none of whom am parties to this Agreement. The parties agree to use
their best efforts to obtain permission of each of these individual property owners to construct this
Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of
the wall, However, it Is the parties understanding and intent that should any property owner refuse
to agree to permit the construction and/or exterior ivy maintenance ("hold outs'), that the Block
Wall will be consbueted regardless of any holdouts, and that Nexus shall construct the Block Wall
in such fashion as to join the Block Wail to existing wall segments owned by hold outs mid
minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe
and its officers, directors, employees and agents harmless from any claim by any and all property
owners including such hold outs arising out of the construction of the Block Wall in which
Sandpoint*, or its officers, directors, employees or agents are named. Nexus shall be permitted to
select counsel to defend Sandpoint* at the expense of Nexus. In the event of potential conflict of
interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent
counsel. All fees acid costs of independent counsel selected by Sandpointe for defense of any claim
arising out of or relating to any claims described herein shall be paid by Nexus on behalf of
Sandpointe.
EXHIBIT D
Ordinance No. NS -2880 S
Page 34 of 51
75A -95
G. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF
PUBLICLY OWNED IMPROVEMENTS
Upon the issuance of certificate of occupancy pursuant to time California Building Code
far (1) all residential units in a minimum of two of the three high -rise towers in the Nexus Project,
and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a
notice to protect. to design and construct the Publicly -Owned Improvements as set forth in Exhibit
A. If only a portion of the residential, units have been constructed within five (5) years ofthe date
of the Commencement Date, then the Agency shall only give the City a notice to proceed with a
partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for
the Publicly -Owned Improvements, and the City's obligation to complete those Publicly -Owned
Improvements, or any part thereof, shall be limited by the Agency's ability to fbmd said work from
the projeot-specific tax increment gencrated'by the Nexus Project; provided, however, that City and
Agency shall construct item no. La. on the list of Publioly -Owned Improvements in Exhibit A to
this Agreement regardless of the project- specifle tax increment received by the Agency.
7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY
OWNED RMROVEMBNTS
a. City shall construct the Publicly -Owned Improvements in conformance with the
schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however,
that the Agency and City shall have no obligation once the cost of the Publicly -Owned
Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of die Publicly -Owned
Improvements, including all design, administrative and construction costs exceed $5,000,000.00,
then the City shall construct only that portion of due Publicly Owned Improvements as specified in
Exhibit C in the exercise of the Agency's solo and absolute discretion,
b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B,
additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of
the block wall, referenced in item no. 1 on Exhibit A hereto, but the City's obligation to maintain
the climbing vines shall only apply to those property owners who execute a fagade easement with
the City in a form approved by the City Attorney permitting the City to maintain said climbing
vines and indemnifying time City from any liability caused by said climbing vines and/or irrigation.
Sandpointe shall be responsible for obtaining signatures from these individual homeowners.
8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY
INJURY AND PROPERTY DAMAGE INSURANCE
A, From and after the Effective Date, Nexus and Geneva Commons agree to and shall
indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents
and employees harmless from and against all damages to property or injuries to or death of any
person or persons, including employees or agents of Agency or City, and shall defend, Indemnify
EXHIBIT D
b Ordinance No. Ns -2880
Page 35 of 51
and save Agency, City and Sandpointe, and their officers, agents, and employees, from any and all
claims, demands, suits, actions, or proceedings of any kind or nature, including, but not by way of
limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting from
the negligent or wrongfid acts or omissions of Nexus or Geneva Corrurions or their respective
employees, agents or subcontractors, For itself and no other, Sandpointe agrees to hold harmless
Agency, City and their respective officers, directors, agents and employees from and against all
damages to property or injuries to or death of any person or persons, in any way resulting from the
negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective
employees, agents or subcontractors. This Agreement shall not be interpreted or construed to
obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or
to answer in any way for the Agency the City or their respective officers, directors, agents or
employees for such claims,
13. Prior to the commencement of construction, Nexus or any other party working
within the real property of the City or Agency, shall obtain at its sole cost and isle with the City and
Agency, and maintain for the period covered by this Agreement, a policy or policies of liability
insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the
City and Sandpointe, their officers, directors, agents, and employees, as insured or additional
insured, which provides coverage not less than that provided in the form of a comprehensive
general liability insurance policy against liability for any and all claims and suits for damages or
Injuries to persons or property resulting from or arising out of operations of Nexus, Its officers,
directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both
bodily injury and property damage in not less than One Million Dollars ($ 1,000,000) combined
single limit, or its equivalent. Said policy or policies shall also contain a provision that no
termination, cancellation, or change of coverage of insured shall be effective until after thirty (30)
days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and
City prompt and timely notice of claim made or suit instituted arising out of Nexus operations
hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and
amounts of insurance, which in its own judgment may be necessary for its proper protection in the
prosecution of the work. All insurance policies shall be written by responsible and solvent
insurance companies and shall include an additional insured endorsement in substantially the form
of Exhibit D, attached hereto and incorporated heroin by this reference
9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
Nexus shall carry out the design,. construction, and operation of the Nexus Improvements in
substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations,
orders, and decrees of the United States, the State of Cali fornla, the County of Orange, the City, or
any other political subdivision in which the Property is located, and of any other political
subdivision, agency, or instrumentality exerefsing jurisdiction over the City or Nexus, including all
applicable federal, state, and local occupation, safety and health laws, rules, regulations and
standards, applicable state and labor standards, applicable prevailing wage requirements, the City
zoning and development standards, City permits and approvals, building, plumbing, meohanical
EXHIBIT D
Ordinance No. N8.2680 i
Page 36 of 61
75A -97
and electrical codes, and all other provisions of the City and its Municipal Code, 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. ("Govenumental Requirements ").
10, DEFAULTS AND REMEDIES
If any party defaults In performance of its obligations, covenants or agreements hereunder,
the defaulting party shall be entitled to cure the default in accordance with this section. The injured
party shall give written notice of default to the party in default, specifying the default complained of
by the injured party. Delay In giving such notice shall not constitute a waiver of any default nor
shall it change the time of-default. Thu defaulting party must, within thirty (30) days, following
service of said notice, commence to cure, correct or remedy such failure or delay and shall complete
such cure, correction, or remedy with reasonable diligence.
11. INSTITUTION OF LEGAL ACTIONS
Subject to the provisions of Section 13. hereof, In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any default to recover damages for any
default, or to obtain any other remedy consistent wills the purpose of this Agreement,
12, APPLICABLE LAW
This Agreement and all questions relating to its validity, interpretation, performance, and
enforoentent shall be governed and construed in accordance with the laws of the State of California.
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. All parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
13. RIGHTS AND REMEDIES ARE CUMULATIVE
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of die parties are cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
EXHIBIT D
R Ordinance No. NS -2880
Page 37 of 61
•1;�
14. DAMAGES
In the event that tho Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva
Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva
Commons in the performance of this Agreement and shall not extend to compensation for loss of
futtue income, profits or assets.
15. NOTICES, DEMAND AND COMMUNICA'T'IONS
Formal notices, demands and communications between the parties shall be sufficiently given if
dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal
offices of the Agency and the Developer as designated below. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may t)rom
time to time designate by mail as provided in this section.
City: City of Santa Ana
Planning and Building Agency
20 Civic Center Plaza, M -20
Santa Ana, CA 92702
Attn: Stave Harding, Executive Director
Phone: (714) 667 -2700
Fax: (714) 973 -1461
with copy to: City Attorney
20 Civic Center Plaza, M -29
Santa Ana, California 92702
Agency: Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M -25
Santa Ana, CA 92702
Attn: Patricia C. Whitaker, Executive Director
Phone: (714) 647 -5360
Fax: (7t4)647-6549
with copy to: Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center plaza, M -29
Santa Ana, California 92702
EXHIBIT D
Ordinance No. N &2880 9
Page 38 of tit
75A -99
Sandpointo: Sandpointe Neighborhood Association, Inc.
P.O. Box 27122
Santa Ana, California 92799
Attention: Bob 131aok
Nexus: Nexus Development Corporation/Central Division, Inc..
The Grand Plait 2
1 MacArthur Place, Suite 300
Santa Ana, California 92707
Attention: Cory W. Alder
Geneva Commons: Coastal Rim Properties, Inc.
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
A party may change its address by giving notice in writing to the other parties. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be
effective or deemed to have been given three (3) days after it tins been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If
sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective
or deemed to have been given twenty -four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time Games, weekends, federal, state, County or City holidays hall be excluded.
EXHIBIT D
10 Ordinance No. NS -28130
Page 39 of 61
75A -100
16. ' EFFECTIVE DATE AND TERM OF AGREEMENT
This Agreement shall take effect from and after the date of adoption and approval by the
City and the Agency pursuant to. official action of the governing bodies thereof and shall be
effective until completion and acceptance of the Nexus Improvements and Publicly -Owned
Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva
Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements
under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe,
and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which
of the Nexus Improvements shall be'constructed using Geneva Commons twenty-five percent
(25 %) share of the estimated cost of tho total Nexus Improvements, and (ii) the parties agree and
acknowledge that all references heroin to Nexus shall be deemed to bo rofbrences to Geneva
Commons. If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and
Sandpointe shall meet and confer in good faith, and using the order of the Nexus improvements
specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constmoted
using Nexus seventy-five percent (75 %) share of the estimated cost of the total Nexus
Improvements,
17. COMMENCEMENT DATE
For purposes of this Agreement the terns "Commencement Date" shall refer to the period
after issuance of City entitlements and shall be deemed to be a data ninety (90) days after the
issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The
Commencement bate shall be tolled should a valid referendum petition be presented challenging
either project, or timely litigation be filed and served challenging any of the entitlements, including
approval pursuant to the California Environmental Quality Act.
18. INTEGRATION
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto,
and supersedes all negotiations or previous agreement between the parties with respect to all or
any the matters addressed heroin. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate authorities of the parties, and all amendments hereto must
be in writing and signed by the appropriate authorities of the parties,
19. ASSIGNMENT
Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in
whole, to any person, entity (public or private), partnership, joint venture, flan or corporation
who is the owner of the real property referenced in the Recital hereto at any time during the term
of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this
Agreement may not be transferred or assigned unless the written consent of the City Council is
first obtained and any transfer or assignment of the rights under this Agreement shall Include in
.EXHI.EIT D
Ordinance No. NS -2880 i t
Page 40 of 51
75A -101
the City grants written consent to transfer the rights, Not shall the rights of Nexus or Geneva
Commons hereunder be subject to assignment by attachment, execution, or proceedings under
any provision of the Bankruptcy Act, and any such assignment or transfer shall he wholly void
and of no force and affect unless such written consent thereto be obtained from the City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation
or liability to City without the consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shall observe and perform all of the duties and obligations of Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons, Any and all approved successors avd assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITMS W IWOF, the parties hereto have executed this Agreement the date and
year fhst above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
L� : •L.!
NBXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, INC,
By _
Name
Its
12 Ordinance No. NS -2680
Page 41 'of 61
the City grants written consent to transfer tha rights. Not shall the rights of Nexus or Geneva
Commons hereunder be subject to assignment by attachment, execution, or proceedings under
any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void
and of no force and effect unless such written consent thereto be obtained from the City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation
or liability to City without the consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shall observe and perform all of the duties and obligations of Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons, Any and all approved successors and assignees of Nexus or
Geneva Commons shall have ail of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
By
Name
Its - - - -�
NEXUS D13VELOPMENT CORPORATION/
Q9NTRAL DIVISION, INC.
By
Name
Its
Ordinance No. NS -2880 12
Page 42 01 61
75A -103
AI rBST: COMMUNITY DEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA
By
Patricia E, Healy Patricia C. Whitaker
Secretary of Agency Executive Director
APPROVED AS TO FORM:
Josoph W. Fletcher
Agency General Counsel
EXHIBIT D
Ordinance No. NS 2880 14
Page 44 of tit
75A -104
EXH113IT A
OFFS -81TE IMPROVEMENTS
Block Wall
a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy
b. North side of Sunflower between Main & alley adjacent to four plexes, excluding
sections of wall at corner of Main & Sunflower at rear of commercial building
o. Plaster and paint with one color selected by Association
d. $3,000 per house payment for repair /replacement of landscaping associated with
wall improvements upon execution of Nexus right -of -entry for constntction and
exterior -wall maintenance easement, Ills payment shall be made by Nexus at the
time the individual property owner executes the construction casement in favor of
Nexus and permanent maintenance easement (for the climbing vines) in favor of
the City. For any "hold outs" (as defined in paragraph 6.b, of this Agreemeni,
Nexus shall make the $3,000 payment to Sandpointo in trust for each hold out,
o. Remove and replace 16 sections of white concrete block wall in immediate area of
MacArthur Boulevard and Flower Street, and paint with one color selected by
Association,
f. Remove and replace 4 sections of white concrete block wall along Wool Alton
Avenue and paint with one color selected by Association,
g. Nexus shall install climbing vines, species identified by the City, along the outer
edge of the wall, install irrigation to feed said climbing vines which shall be
connected and metered by Nexus at the nearest City water supply, and shall
reconstruct the sidewalk to the City's specifications after installation of the
irrigation lines and block wall.
h. Wall replacement specifications shall be established pursuant to paragraph 4 of
this Agreement.
i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety
(90) day plant establishment phase following item no. l.g.
2. Window Replacements
a. Nexus shall provide $3,500 construction allowance per house for sound proof
window replacements for up to 49 residential units located along Matti Street and
Sunflower Avenue behind the existing concrete wall to be replaced. The 49
residential units are identified in Exhibit A -1 to ibis Agreement.
b. Nexus shall assist Sandpointo in obtaining/proparing necessary construction bids,
documents and permits.
e. Allowance will be paid by Nexus to Sandpointo for any applicable home upon
receipt of bona tide construction or material invoices.
d. Allowance shall expire 12 months following the completion of the concrete wall
EXHIBIT D
t i Ordinance No. NS -2680
Page 45 of 61
75A -105
replacement improvements.
e. Window specifications shall be established pursuant to paragraph 4 of this
Agreement.
3. Taft Elementary Loading Zone
a. Nexus shall construct all improvements necessary to effectuate Definitive
Easement Agreement between Santa Ana Unified School District, Nexus and
South Coast Church.
b . Improvements to loading zone shall include driveway approaches, traf'f"ic lanes on
site, striping, church building renovations, portable classroom relocations,
computer lab on school and church properties, etc. as provided for in plans
included as part of Definitive Easement Agreement.
4. Pay City $200,000 for City to implement a Neighborhood Traffic Management
Plan (" NTMP ") to mitigate changes in traffic patterns or increased out through
traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe
Neighborhood. NTMP costs shall include traffic studies, staff time to process
neighborhood traffic plan, and the construction of appropriate traffic calming
devices, including but not limited to semi- diverters, diagonal diverters, and street
olosures. The implementation of the NTMP shall be pursuant to procedures
adopted by the City Council.
5. Nexus shalt pay the City the fttli cost (seo Exhibit B) for the installation of a
Traffic Signal at the Intersection of MacArthur Boulevard and Birch Street.
Utility Undergrounding
a. Main Street — MacArthur to Sunflower
b. MacArthur — Main to Flower
c. Sunflower — Main to Flower (north side of street)
EXHIBIT D
Ordinance No. N$-2680 16
Page 46 of 61
75A -106
EXHIBIT A -1
List of 49 Residential Units
Yoorplamm
38. 392$ 8, Roos
(Aid" to SunAowsr)
List of 6Agible Homes fbr
(rmt1Sunnowet)
40. 403 W, 8umnower
Window±tepteoetnenb
41. 409 W. Sun4wwr
nu Sunflower)
Alontt Wit end Swifioaer
31nSie K
43. 303 W. SunOowa
1.
101 W. Mv,mltylfiotagr rybY
(side* to Meln)
2.
3701 S, Aides
tbecks IQ MOM)
3.
370$ S. Alder
ow % to Main
4,
3709 S. Aidor
(p*ciu to Main)
S.
3713 S. Alder
(basit+t to Mein)
6.
• 3717.4. Alder
(kdto to Meln)
7.
37118, Aldet
WYA to Msin)
S.
3717 s. Alder
(Mike W Main)
9,
3719 S. Aldo
(back* to Mein)
10,
31013. Aidse
(helu to Maln)
11,
3305 S. Alder
(b d" to Molm
12,
3809 S. Alder
(books to Maim
13.
3813 S. Aldo
(both* to MsAa
14.
3819 S. Alder
(bet(* to Win)
13.
31113, Alder
(backs to Moir)
1b.
3323 8, Al4w
(fwcaw to Alda)
17.
309 S, Alder
(rocks to MAID)
18.
3901 S. Alder
(Wcks to M*ln)
19.
39W S. Alder
(Decks to Mile)
20.
3909 S. Alder
(baalu to Main)
21.
102 W, S(nwA
(beck? to Matti end MIWIMN")
22.
104 W. Stevens
(ttaelo to Matti end MIMI Mallet)
23.
) I 0 W. 8two o
(bads to Malp ad MW Mwka)
24,
114 W. Stmos
( bads IQ Sunftow and NMI Market)
23.
118 W, 8imm
(444 to $unnowet)
26.
122 W. Stavats
(bolo to Sumilowa
21.
207 W. stevau
(badw to ttunnowa)
28.
106 W, Stevens
(bado to sunn"W)
39.
210 W. Stevats
(bit b to Sunnowu)
30,
214 W.IStevons
(Micky to Sunnowa)
31.
3926 8. Timber
(I ides to suriamw)
32.
301 W. Stoups*
(books to Sltnnow&)
33.
306 W.3tcvcns
(bitch to$unnewa)
34.
310W.$towns
=tosunhoway
33.
314 W. Stevsm
(bark$ to Sun UZ
36.
31= 8. Stevan
(bads to Wow)
17.
39128.101mh
(" to8unfltnva)
Yoorplamm
38. 392$ 8, Roos
(Aid" to SunAowsr)
39. 401 W.Sunffowat
(rmt1Sunnowet)
40. 403 W, 8umnower
(hW aunflowrr)
41. 409 W. Sun4wwr
nu Sunflower)
42. SO) W. Sunftoo"'W
Sunflower)
Em
43. 303 W. SunOowa
nu sun0owrr)
44. S09W.Sutnflowdr
(honu8unllawer
4$. 313 W. Sunflower
I front; sundouw�
MllnAtttsttton Condsmtltluml
46.3620 AS. Main
(1140 to Main)
47.3632 A S. Mdn
(fronts Mala)
48.363211 S. Main
(Army Mde)
49.3532 C S. Main
(from Main)
17
Ordinance No. NS -2680
I . Page 47 of 61
75A -107
EXHIBIT B
SCHEDULE OF NEXUS IMPROV13MENTS
1. Construction of Item No. I to Exhibit A shall conform to the following schedule:
a. Preliminary Site Plans -- Due within thirty (30) days of the Commencement Date.
C. Final Plans Due within sixty (60) days of City approval of Preliminary Site
Plans, together with proposed Bight -Of -Entry and Maintenance Basement for
review of City and Sandpointo.
d. Building Permits, Construction Right-Of-Entry (in favor of Nexus), and
Permanent Maintenance Easement for Exterior of Wall (in favor of City) --
Application, right of entries and easements shall be submitted no late than sixty
(60) days after City approval of Final Plans.
e. Construction Commencement -- Within thirty (30) days after approval of Building
Permits.
f. Construction Complete -- Within one hundred twenty (120) days of
commencement of construction,
g. Ninety (90) day plant establishment phase after completion of construction of
climbing vines and irrigation.
2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule:
Final building permit plans shall be submitted by individual Sandpointe
homeowners to City no later than construction complete date for item no.
above.
Construction shall be complete pursuant within one hundred twenty (120) days of
Issuance of City Building Permit.
3. Construction of Item No. 3 to Exhibit A shall conform to the following schedule:
Nexus shall submit executed Definitive Easement Agreement to all parties no
later than one hundred eighty (180) days of the Commencement Date. If Nexus
fails to meat this deadline, which may be extended in writing by Nexus and
Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a
separate escrow with terms providing for Its withdrawal by Sandpointe, iahieh'are
mutually agreeable to all panics, for use by Sandpointe on other projects to
benefit the Sandpointe neighborhood.
Nexus shall complete this item not later than eighteen (18) months from the
EXHIBIT D
Ordinance No. NS -2880 18
Page 4 8 of 61
Commencement Date.
4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final
map for the Nexus Project. The City shall follow the Neighborhood Traffic Management
Plan Polioy adopted by the City Council.
S. Construction of Item No. 5 to Exhibit A shall confortn to the following schedule:
a. The City shall provide Nexus with a preliminary estimate of this cost within thirty
(30) days of the Commencement Date. This preliminary estimate shall be updated,
If necessary, upon the City's reoeipt of Nexus application to final any portion of its
tentative tract map, Said estimate shall be conclusive.
b. Noxus shall pay the City the catimated cost of this item not later than approval of
the first final map for the Nexus Project.
c. The City shall complete construction of this item prior to the first certificate of
occupauxcy for the Nexus Project,
Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus
and the City Manager or designee.
EXHIBIT D
19
Ordinance No. NS -2880
Rage 48 of 51
75A -109
EXHIBIT C
SCHEDULE FOR PUBLICLY -OWNED IMPROVEMENTS
1. City shall complete item no, l.a, on Exhibit A of Publicly -Owned Improvements not Iater
than Jame 2005.
2. City shall complete item no. IN on Exhibit A of Publicly -Owned hnprovements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project,
3. City shall complete item no. Lo. on Exhibit A of Publicly -Owned improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project,
Notwithstanduig this schedule, City shall make a reasonable good faith effort to ef1eotuate the
completion of these Publicly -Owned Improvements (which, under current law. must be designed
and constructed by Southern California Edison and not the City) prior to the dates specified above,
EXHIBIT D
Ordinance No. NS -2680 eft
Page 60 of 81
75A -110
EXHIBIT "E"
Remaining Offsite Mitigation Measures
The Met at South Coast Public Improvements
Improvement
New sidewalk
New driveway ( "pan" style
Dedication for 25' x 25' comer cut -off
Sidewalk easement
Street dedication
4" depressed curb
Triple -leis traffic mitigation measure,
including sign, bridge, signal modification,
updated detection, and signing: and striping
on both streets
_Pavement Rghabilitation (minimum 2"
wind and overlay}
Installation of new public fare hydrants
Location
Property frontage on First American Way
First American Wav
NIB comer of MacArthur & Imperial
Promenade
10' along property frontage of MacArthur Blvd.
GO' from street centerline along_ MacArthur
Blvd,
Emerf,,ciipy access on MacArthur Blvd.
Southbound Imperial Promenade at MacArthur
Blvd
On Imperial Promenade and First American
Way along property frontage from curb to street
centerline
Along MacArthur Blvd. and First American
Way
75A -111
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EXHIBIT 9
THE MET AT SOUTH COAST
MULTI - FAMILY RESIDENTIAL PROJECT
INITIAL STUDY /MITIGATED NEGATIVE DECLARATION
Including the Final Mitigated Negative Declaration,
Mitigation Monitoring & Reporting Program, and
Response to Comments
is available for review at the following:
www.Santa- ana.org
Planning and Building Agency
Planning Counter, First Floor
20 Civic Center Plaza
Santa Ana, CA 92701
Santa Ana Public Library
26 Civic Center Plaza
Santa Ana, CA 92701
Sergio Klotz — (714) 667 -2796
to arrange an appointment for review
75A -113
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VINEYARDS
DEv ELo PMI:NT CORPORATION
February 24, 2012
To: Jay Trevino, Executive Director
Planning & Building Agency, City of Santa Ana
Re: The Met Project Highlights and Revisions
Dear, Mr. Trevino:
We appreciate all of your hard work on The Met project over the last 14 months. It is our vision that The
Met will exceed the standards and quality of any similar project in the City of Santa Ana. Therefore, we have
enhanced aspects of the design of The Met in the following manner:
• Reduction of unit count from 284 units to 278 units (confirms to SD 43 unit allowance)
• Increase in two and three bedroom unit count, from 106 units (38 %) to 136 (49 %)
• Average unit square footage increase from 885sf to 915 sf,
• Increase in open space from 202 sf per unit to 255 sf per unit, to exceed SD -43 code
• Reduction in tandem parking from 344 stalls (54 %) to 257 stalls (42 %)
• Addition of the following amenities: yoga veranda, business center, game lounge & pet -park; which
marks our amenity package to be the most extensive in the City of Santa Ana
• Increase size of fitness center to from 850 sf to 1,900 sf
• Increase in pool size
• Increase rooftop lounge amenity area
In addition, we have received FAA clearance and the Orange County Airport Land Use Commission approval
and have agreed to the one stipulation to install site signage to conform to ALUC's requirements.
Again, thank you for your and staff's time and efforts throughout the past year.
Sincerely,
Robert H. Bisno
and
Ryan A. Ogulnick EXHIBIT B
VINEYARDS DEVELOPMENT CORPORATION
828 NORTH OGDEN DRIVE . LOS ANGELES CA 90046
T 310,13"71 .8227 • VINEYA,RLISDC -COM
75A -115
75A -116
ORDINANCE NO. NS -XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AMENDING SPECIFIC DEVELOPMENT NO. 43
(SD -43) TO ALLOW THE CONSTRUCTION OF A
MULTIFAMILY RESIDENTIAL PROJECT WITH 278 UNITS
AT 200 EAST FIRST AMERICAN WAY (ZOA NO. 2012 -01)
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find, determine
and declare as follows:
A. The proposed Zoning Ordinance Amendment No. 2012 -01 is to amend the
existing zoning in Specific Development No. 43 (SD -43) to reduce the
parking ratio, allow for the use of tandem parking stalls, and amend the open
space requirement.
B. On January 23, 2012, the Planning Commission held a duly noticed public
hearing, and decided to continue the matter to February 13, 2012. Staff
recommended that the Planning Commission vote to recommend that the
City Council adopt Zoning Ordinance Amendment No. 2012 -01 to amend
Specific Development No. 43 (SD -43) to increase the maximum number of
permitted residential units, reduce the parking ratio, allow for the use of
tandem parking stalls, and reduce the open space requirement. On
February 13, 2012, the Planning Commission split by a vote of 3:3
(Commissioner Yrarrazaval absent) on a motion to approve the project, thus
creating an impasse. Pursuant to Planning Commission Bylaws (Resolution
01-44, § 8e), the applicant desired to proceed to City Council.
C. Zoning Ordinance Amendment No. 2012 -01 came before the City Council of
the City of Santa Ana for a duly noticed public hearing on March 5, 2012, to
consider all testimony, written and oral.
D. The City Council adopts as findings all facts presented in the Request for
Council Action dated March 5, 2012, accompanying this matter. For these
reasons, and each of them, Zoning Ordinance Amendment No. 2012 -01 is
hereby found and determined to be consistent with the General Plan of the
City of Santa Ana and otherwise justified by the public necessity,
convenience, and general welfare.
Section 2. Specific Development No. 43 (SD -43) is hereby amended as
follows:
75A -117
A. Reduction in Multi - Family Residential Parking Ratio. Amendments are
needed to revise the parking requirements for multi - family residential uses.
SD -43 currently has a graduated parking ratio for individual units based on
bedroom count and a similar graduated guest parking ratio based on the
overall unit count. As proposed, the project will provide a total of 632 spaces
at an overall ratio of 2.22 spaces per unit, regardless of bedroom count, and
inclusive of guest parking, which provides seven more spaces than the 2.22
per unit ratio. The parking standards contained within SD -43, if applied to
the proposed project, would require a total of 642 parking spaces - 601 for
the units and 41 for guest parking. This creates the need for a reduction in
the required parking of 17 spaces. Due to the fact that the applicant
proposes to provide 632 spaces, the effective reduction will be 9 spaces;
however, the SD shall be amended to reflect the overall ratio of 2 spaces per
unit and 0.22 spaces per unit for guest parking.
Specifically, Section V.I. (Development Standards /Residential Permitted
Density; Parking) shall be amended to read as follows:
"A minimum of 2.0 off - street parking spaces per unit shall be required
for baGheler all units. 2.3 off stTee+ narking spaces are requimd fer
Nye bedroom � snits and 2.5 off street parking 6nanes sh he real irerl
. In
addition, guest parking shall be provided as follows: 0.5 space -fer
eanh unit up through ten (1 0) , R46 0.22 space for each unit in
ov�� en (10) units up ugh on (100) units, and 0.1
spat for each unit reXneS of one hundFed (100) u Thus, a
minimum of 2.22 off - street parking spaces shall be provided per unit
in total."
B. Allowance for Tandem Parking to Satisfy Parking Requirement. The Santa
Ana Municipal Code contains provisions for tandem parking to satisfy some
portion of any required parking, but only for commercial development. SD-
43 does not contain any specific standards allowing the use of tandem
parking within the project area. The applicant proposes to have 42% of the
parking stalls designed as tandem spaces. Thus, SD-43 shall be amended
to allow for tandem parking up to 42% of total parking, so long as there is a
link between the percentage of tandem and percentage of one - bedroom
units.
Specifically, the following shall be added to the end of Section V.I.
(Development Standards /Residential Permitted Density; Parking) as follows:
"Tandem parking shall be allowed up to a maximum rate of 42% of
the total parking stalls for a property, so long as no more than 51 % of
the total units on the property are studio or one bedroom units."
75A -118
C. Reduction in Open Space Requirement. The open space provision within
SD -43 requires that each residential development provide usable ground
level open space at a rate of 250 square feet per unit. Such usable open
space shall be divided between common and private open space. Private
open space shall be required to be provided for each unit at a rate of no less
than 90 square feet of the total open space provided. Ground level open
space or common open space must be provided within 500 feet of any
residential unit on the site. The applicant estimates that the project provides
for 255 square feet of open space per unit, however this calculation includes
rooftop open space that cannot be counted as ground level open space.
Thus, SD -43 shall be amended to not distinguish between ground level and
rooftop open space.
Specifically, Section V.E. (Development Standards /Residential Permitted
Density; Usable Open Space) shall be amended to read as follows:
"Ground ley Open space must be provided within 500 feet of any
residential unit on the site at a rate of 250 square feet of area for each
unit.
private open spans Private and required to be
provided fer each � snit at a ``r`"�'+t``o^^i``^^f ``n''G less Ythan ninety (90) square feet
of the tetal open spaGe ei
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 12012.
Miguel A. Pulido
Mayor
75A -119
APPROVED AS TO FORM:
Joseph A. Straka
Interim City Attorney
as
Ryan O. Hodge
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify 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
75A -120
(ROH 03/05/12)
ORDINANCE NO. NS -XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING AN AMENDED
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. 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 Amended Development Agreement pursuant to
the provisions of the Government Code and applicable City policies.
C. This Amended Development Agreement came before the Planning
Commission for a duly noticed public hearing on January 23, 2012. At that time, the
Planning Commission continued the matter to February 13, 2012. Staff recommended
that the Planning Commission vote to recommend approval of this Amended
Development Agreement. On February 13, 2012, the Planning Commission split by a
vote of 3:3 (Commissioner Yrarrazaval absent) on a motion to approve the project, thus
creating an impasse. Pursuant to Planning Commission Bylaws (Resolution 01 -44, §
8e), the applicant desired to proceed to City Council.
D. Entering into this Amended 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 The Met 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.
E. The project and the use that the owner proposes in connection with the
property have been extensively reviewed and considered by the City, and such
proposed development and use have been found to accommodate the City's
recommendations and suggestions in order to protect the public's interest to enhance
the desirability of such proposed development and use. The terms and conditions of
Ordinance No. NS -XXX
Page 1 of 3
75A -121
this Amended Development Agreement have been found to be fair, just and reasonable,
and the City has concluded that the pursuit of the Project will serve the interests of the
City.
F. The City Council has held a noticed public hearing on this Ordinance and
has considered all testimony presented thereto.
G. Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011 -46, have been approved and certified by this Council
by resolution simultaneously with the introduction of this ordinance.
H. The proposed project will not adversely affect the General Plan, as is
expressly set forth in the Request for Council Action dated March 5, 2012, together with
all supporting documents, including but not limited to, proposed resolutions, which are
incorporated herein by this reference.
Section 2. The Amended Development Agreement, a true and correct copy of
which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk
of the Council are authorized to execute it on behalf of the City with such non - substantive
changes as may be authorized by the City Manager and City Attorney. The Clerk of the
Council is hereby authorized and directed to cause this Development Agreement to be
recorded with the County Recorder's Office.
Section 3. This ordinance shall not be effective unless and until Resolution No.
2012- is adopted and becomes effective. If said resolution is for any reason held
to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or
otherwise does not go into effect for any reason, then this ordinance shall be null and void
and have no further force and effect.
Section 4. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause
phrase or portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Ordinance No. NS -XXX
Page 2 of 3
75A -122
ADOPTED this day of , 2012.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph A. Straka
Interim City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
AYES:
NOES:
ABSTAIN:
NOT PRESENT
Councilmembers
Councilmembers
Councilmembers
Councilmembers
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 -XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
75A -123
Ordinance No. NS -XXX
Page 3 of 3
75A -124
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
EXEMPT FROM RECORDING FEES
GOVERNMENT CODE § 6103
AMENDED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Dated: March 5, 2012
EXHIBIT 1
75A -125
EDAMENDED DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
VDC AT THE MET, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY
This RESTATED A14D NOVA AMENDED DEVELOPMENT
AGREEMENT ( "Agreement ") is entered into between THE CITY OF SANTA ANA, a charter
city and municipal corporation duly authorized under the Constitution and laws of the State of
California (referred to herein as "City ") on the one hand, and COASTAL RIM -PROPERT49S,
INC., A "Y"FTI-COTITMONI'SVDC AT THE MET,
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (eellectively referred to herein as
"Owner" or "Property Owner ") on the other hand.
I . RECITALS. The Amended Agreement is entered into with reference to the
following facts:
1.1 Purpose. (1) The purpose of this Agreement is to facilitate the
development of a small portion of the real property which was the subject of a Development
Agreement entered into on January 4, 1988 and recorded as Document 88- 260709 in the Office
of the Recorder of the County of Orange (heireafte the "Original Agreement "). The Original
Agreement was subsequently amended on or about June 4, 2001, by Document No. 20010429519
the Office of the Recorder of the County of Orange. The real property which was the subject of
the Original Agreement is zoned by the City as Specific Zoning District No. 43 ( "SD -43 "). On
April 4, 2005, the City entered into a Development Agreement the "2005 Agreement ") with
Coastal Rim Properties, Inc. and Geneva Commons, LLC (collectively refereed to herein as
"Coastal Rim ").
(2) A portion of the real property covered by the Original Agreement
was subsequently acquired by 9rvxer Coastal Rim, who has applied to the City to amend SD -43
and have approved a new tentative map, and other entitlements.
(3) The City and Owner agree that the changes Owner seeks in the
Original 2005 Agreement substantiate the need to r-eplaee amend the Original Agreement with
the instant Develepmefit. Agreement, rendering the Original Agreement and the 2005 Agreement,
and any 441s amendments thereto, null and void as applied to Owner's Property (as the word
"Property" is defined in seetio Section 2.3 herein).
(4) As more particularly set forth in aee4iex Section 2.4 of this
Agreement, Owner has proposed eonstmeting at developing the northeast corner of MacArthur
Boulevard and Imperial Promenade
building, of an 18 residential level high rise projeet and an eight stei3- together- wi
. iately 13,000 square fee4 ef meillafy feiail, of w-hieh no more than 3,000 9"are fee4 May
�c��edto "fast food's "takes out" Testa •�•a with a 5- story, multi -famil apartment
community consisting of 278 residential units, with 2 levels of subterranean parking, and a level
of podium deck parkin in n 2 separate buildings (the "Project ", as further defined in Section 2.4
75A -126
herein).
1.2 Code 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. 43.
(3) This Agreement will permit achievement of goals and objectives as
reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all
applicable Specific Plans and Specific Development District No. 43.
(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 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 represent benefits which would not otherwise be
required as part of the development process.
1.3 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. The Property is currently vacant.
1.4 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.
1.5 Planning Commission - Council Hearings. On November 22, 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
Owne Coastal Rim's application for this the 2005 Agreement. The Planning Commission
recommended to the City Council of City that it execute the 2005 Agreement. On April 4,
2
75A -127
2005, the City Council of the City of Santa Ana ( "Council "), after providing notice as required
by law, held a public hearing to consider the -nOw ei Coastal Rite's application for t-1}is the 2005
Agreement, which the Council approved by adopting Ordinance No. NS -2680 on April 18, 2005,
The Owner has submitted a new and modified site plan review package to the City amending the
previously approved plan On January 23, 2012 the Planning Commission of the City, after duly
giving notice otice pursuant to Government Code sections 65090 and 65091, held a public hearing to
consider the Owner's gpplication for this Agreement. The Planning Commission recommended
to the Council that it execute this Agreement On [insert date] the Council, after providing
notice as required by law, duly held a public hearing to consider the Owner's application for this
Agreement.
1.6 Council Findings. The Council finds that this Agreement and its
purpose s is are consistent with Government Code Sections 65864 through 65869.5, and with the
objectives policies general land uses and program specified in the General Plan, applicable
Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the
City. Among other things this Agreement will reduce uncertain1y in planning for or and securing
the orderly development of the Property, assure progressive installation of necessary
improvements, provide public services appropriate to each stage of development of the Propeft
ensure attainment of the maximum effective utilization of resources within the City at the least
cost to its citizens expand the availability of highh- quality, affordable housing stock to the City's
citizens contribute to the economic stability and revitalization of the community, enhance the
City's property tax revenues and otherwise achieve the goals and purposes for which
Government Code Sections 65864 through 65869.5 were enacted.
1.7 City Ordinance. On ^ pr4l 18, 2005 [insert date] , the Council adopted
Ordinance No. NS- approving this Amended Agreement. The ordinance becomes
effective thirty (30) days thereafter,
2. DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Final Design" means the final design documents for work of public art,
which is set forth in greater detail in paragraph Section 5.8 of this Agreement.
2.2 "Property Owner" or "Owner" means Ceast^' epeAies,
California Carperation, and Geneva Conunon collectively VDC at the Met, LLC, a California
Limited Liability Company, and its successors or assigns who or which may acquire Owner's
equitable and legal interest in the Property, being the person, persons, or. entity having a legal or
equitable interest in the Property, .'
Wrest.
2.3 "Property" is the real property described in Exhibit A and referred to in
Exhibit B.
2.4 "Project" is the development of the Property as generally set forth in
Section 1.1(4) of this Agreement, Environmental Review No. 2001 02 215 , Tentative
Tract Map No. 2904 -85 (County Map No. 4655 € ), Conditional Use Permit
75A3128
2984 -A2 , Variance No. 298/1 -1-f , Zoning Ordinance Amendment No.
2884$5 (amending SD -43), and Site Plan Review No. 2884 -96
2.5 "Public Art Plan" means the conceptual Plan attached hereto as Exhibit
C. The parties recognize that the Plan does not set forth certain elements of the Public Art to be
installed in conjunction with this Project, including the location of the Public Art, and is
therefore subject to refinement prior to the time of installation, by agreement of the Owner and
the City's Executive Director of Planning and Building.
3. EXHIBITS. The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
Designation Description in Section
A Property Legal Description 1.23
B Property Graphical Description (Site Plan) 1.23
C Public Art Plan
2.5
D Cooperative Agreement for Off -Site Improvements 5. 1.1
E Remaining Offsite Mitigation Measures 5.1.2
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 be for ten (19)
years from the date that the Council adopts its ordinance approving this Agreement "Effective
Palen; 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.
4.3 Assignment. Owner shall have the right to transfer or assign the Property,
and its interests in and rights and obligations under this Agreement, in whole or in part, to any
person, entity (public or private), partnership, joint venture, firm or corporation at any time
during the term of this Agreement; provided, however, that except as provided in section 43.1 of
this Agreement, the rights of Owner under this Agreement may not be transferred or assigned
unless the written consent of the Council is first obtained and any transfer or assignment of the
rights under this Agreement shall include in writing the assumption of the duties, obligations, and
liabilities arising from this Agreement if the City grants written consent to transfer the rights.
75A -129
Nor The rights of the Owner hereunder shall not be subject to assignment by attachment,
execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment
or transfer shall be wholly void and of no force-and effect unless such written consent thereto be
obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty,
obligation or liability to City without the consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shall observe and perform all of the duties and obligations of Owner
contained in this Agreement as such duties and obligations pertain to the portion of the Property
transferred or assigned. Any and all approved successors and assignees of Owner shall have all
of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. if
the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated,
assigned, or transferred to persons for 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.
4.3.1 Permitted Assignments. The prohibition against transfer of ownership of
the Property as defined in section 4.3 above shall not apply to, and the City hereby consents to,
the following:
a. Associations, including limited partnerships, limited liability
companies, or joint ventures with other entities for the purpose of performing Owner's
obligations under this Agreement, provided Owner retains sole operational and managerial
control.
b. Easements or temporary permits to facilitate development of the
Property.
C. Deeds of trust or other financing documents executed for the
purpose of securing loans to Owner made to finance the development of the Property, and
transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such
deed of trust or other, similar, financing documents and any subsequent transfer by any such
person or entity.
4.4 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868.
The term "Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved and executed.
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
r-emedies provided in Seetion 8,4 of this AgFeement shall not inelude, and City shall not be liable
for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy,
action or inaction, or any legal proceeding arising out of this Agreement except as may-be
pi!evided in Section 6.3(5) of this Agreement.
75A5130
4.6 Hold Harmless. Property Owner agrees to and shall hold City, its
officers, agents, employees, consultants, special counsel, and representatives ( "City Parties ",
collectively) 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 due to negligent acts, omissions or willful misconduct, 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, and to the extent of Property Owner's negligent acts,
omissions or willfid misconduct in the performance of this Agreement This hold harmless
Agreem 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 paragrapl3 Section or due by reason of the terms of, or effects, arising from this Agreement or
any approval or certification by the City relating to the Project, regardless of whether or not the
City prepared, supplied or approved this Agreement, plans or specifications, or both, for the -
Project. The Property Owner fiurther agrees to indemnify, hold harmless, and pay all costs for the
defense of the City, including fees and costs for special counsel to be selected by the City,
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 Property Owner's negligent acts, omissions or willful misconduct in
the performance of 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, transferees and assigns.
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 or
partnership. 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:
City Manager
City of Santa Ana
20 Civic Center Plaza M -31
P.O. Box 1988
Santa Ana, California 92702
75A6131
and,
telefacsimile (714) 647 -6954
City Attorney
City of Santa Ana
20 Civic Center Plaza M -29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
If to Owner, to:
VDC at the Met. LLC
828 North Ogden Drive
Los Angeles, CA 90046
Attention; Ryan O u� lnick
Facsimile number:
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 or facsimile number. If sent by mail, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given three (3) days
after it has been deposited in the United States mail, duly registered or certified, with postage
prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given twenty -four
(24) hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above. For purposes of calculating these time frames, weekends,
federal, state, County, or city holidays shall be excluded.
5. DEVELOPMENT OF THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. In accordance with the terms
of Government Code section 65866, the City and the Owner agree that Tthe 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) zoning, design, setbacks, density, height, size of structures,
permitted uses, and intensity of use of the Property (collectively, the "Existing Development
Regulations "), shall be those rules, regulations, and policies applicable to the Property as of the
effective date of this Agreement.
7
75A- -132
�• A•
VDC at the Met. LLC
828 North Ogden Drive
Los Angeles, CA 90046
Attention; Ryan O u� lnick
Facsimile number:
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 or facsimile number. If sent by mail, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given three (3) days
after it has been deposited in the United States mail, duly registered or certified, with postage
prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given twenty -four
(24) hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above. For purposes of calculating these time frames, weekends,
federal, state, County, or city holidays shall be excluded.
5. DEVELOPMENT OF THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. In accordance with the terms
of Government Code section 65866, the City and the Owner agree that Tthe 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) zoning, design, setbacks, density, height, size of structures,
permitted uses, and intensity of use of the Property (collectively, the "Existing Development
Regulations "), shall be those rules, regulations, and policies applicable to the Property as of the
effective date of this Agreement.
7
75A- -132
5. 1.1 Cooperative Agreement for Off -Site Improvements. The QW*
Coastal Rim and the City, together with other parties, h"e eenetiffengy executed a Cooperative
Agreement for Off. -Site Improvements concurrently with the Original < Agreement, a true and
correct copy of which is attached hereto as Exhibit D and incorporated herein by this reference.
Owner agrees to comply in all respects with its obligations under said Agreement, and agrees and
acknowledges that a material breach of said agreement shall constitute a material breach of this
Agreement. Despite anything to the contrary, Owner is not required to construct any off site
improvements other than as expressly required in this Agreement in any environmental
documentation related to this Project or in any condition of approval in any discretionary action
related to this Project.
5.1.2 Remaining Offsite Mitigation Measures. The additional offsite
mitigation measures, beyond those set forth in the agreement referenced in section 5. 1.1 of this
Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement.
All fiends or costs for offsite mitigation measures required pursuant to the approvals set forth in
section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said
approvals, or (2) no later than recordation of the final subdivision map for the Project, or 3
issuance of certificates of occupancy, whichever comes first.
5.2 Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Government Code Section 65866, and Pardee Construction Co. v.
City of Cainerrillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right
to enact police power regulations on matters not covered by section 5.1 of this Agreement,
including without limitation:
a. Regulation of the rate and amount of growth is not abrogated by the City,
in that the parties agree and acknowledge that the City hereby retains the police power to provide
for change in regulations, ordinances, policies, and plans relating to moratoria, building permit
allocations, timing, and sequencing of development and the financing and provision of adequate
public facilities at the time of development.
b. 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. As used
herein "Existing Development Regulations" shall not include municipal laws and regulations that
do not conflict with Owner's vested rights to develop and use the Property in accordance with this
Aareement. 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;
75A -133
(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.
C. In recognition of the need for City services, including but not limited to
police, fire and park, to meet the demand generated by new, cumulative residential development in
the City, District, Owner will not object to participation in a community facilities district,
assessment district, or other similar funding mechanism, to provide funds for such services, should
any such a mechanism be established.
d. No vested rights as to any requirements in this section either as to existing
or future regulations, ordinances, policies, and plans are hereby conferred.
5:3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, including without
limitation the facilities set forth in the Public Art Plan, 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 FAA Approval. Owner shall obtain and maintain, during the term of the
agreement, any and all necessary approvals from the FAA for the Project. Should such approvals
lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the
City shall have the right to terminate the agreement.
5.4.1. Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigation easement in a form approved by the City
Attorney, which shall be recorded with the Recorder of the County of Orange. The avigation
easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the Project including but not
limited to noise, sound, vibration, Rimes, fiiel particles, dust, discomfort or other environmental
effects incident to aircraft operations as well as any inconvenience or annoyances caused by the
operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to
enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property
for the unobstructed use, passage or operation of all types of aircraft and the right to create or
generate all things and consequences to the Property that may be, or may be alleged to be,
incident to or resulting from the use of said Airspace and any and all related aircraft and airport
operation. The City shall be the benefited party in the avigation easement, but said easement
shall be assignable by the City to a third party, including but not limited to John Wayne Airport
(SNA), without consent of Owner.
�.. -
:...:: _
75A9134
restaurant deemed to be a "fast food" or "take out" n-f it r i cf ria °o sic croitiircaz criixy -ui"- u "�t4
beverages, exelusive table sefviee for ordering and delivering meals and
ilia, . 4., sueh s r i ees, -
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, including but not limited to,
changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall
this Agreement prevent the City from denying or conditionally approving any subsequent
applications for land use entitlements based on such existing or new rules, regulations, and /or
policies; provided, however, that such new rules, regulations, and official policies are of general
application to all development within the City and are not imposed solely with respect to the
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.
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.
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 all development in the City (although actual fee rates may
vary within the City where bona fide Citywide fee zones have been established), (2) are not
applicable primarily or only to this Project, of and (3) are not imposed to either (a) mitigate,
offset or compensate for Project impacts which were analyzed in the negative declaration
prepared for the Project, or (b) duplicate any project design features conditions of approval,
Agreements, or mitigation measures contained in the Development Plan or this Agreement. The
current entitlement fees shall be locked in as of the date of this Agreement, and there shall be no
additional entitlement fees for the Project. However, building permit fees, including fees for now
permits required after the date of this Agreement, will not be locked in at any rate, but rather will
be the amount at the time of pulling building permits. Any deferral of development impact fees
will only be allowed in accordance with Santa Ana Ordinance No. NS-2814 adopted by the Santa
Ana City Council on February 22, 2011.
5.8 Development, Construction and Completion of Work of Public Art.
In consideration for the extraordinary and significant benefits set forth in this Section, the Owner
has been legally vested under paragraph Section 5.1 with regard to the zoning, permitted uses e€
land, density, height, setback, design, size of structure and intensity of use of the Proper�ty.;
Owner shall include within the Project at a prime location visible to the public, a single or
75k- -135
grouped permanent work of public art (the "Public Art "). The Public Art shall conform in all
respects to Exhibit C of this Agreement.
Facilities specified in seetie Section 5.8.1 below must be designed and/or
constructed prior to the triggering event. In the event that Owner fails to meet either of the
triggering events set forth in seetio Section 5.8.1., below, Owner shall pay the City an arnount
equivalent to one -half of one percent (0.5 %) of the estimated value of its Project, as conclusively
specified by the Executive Director of the City's Planning and Building Agency, to be used by
the City to acquire other public art for other locations within the City, in which case, Owner will
not be considered in default under this Agreement.
5.8.1 Work of Public Art.
Items to Be Complete Triggering Event (Rg., New Use or New Area)
1, Submit Final Design of Public Art. Prior to issuance of first Building Permit or five
Final design must conform to Public Art (5) years from the effective date of this Agreement,
Plan. whichever comes first.
2. Install Public Art. Prior to City's issuance of the first Certificate of
Occupancy for any building or structure, or the
expiration of the term of this Agreement,
whichever comes first.
With respect to the Final Design, Owner shall complete all constriction and
development, shall submit all plans, drawings, and other documents, and perform all of its
obligations under this Agreement within the times specified above. During periods of
construction of the work of public art encompassed in the Public Art Plan, Owner shall submit to
the City a written report of the progress of the construction when and as reasonably requested by
the City. The report shall be in such form and detail as may be reasonably required by the City,
and shall include a reasonable number of construction photographs (if requested) taken fiom the
last report by Owner. Development scheduling or date or times of performance maybe subject to
revision from time to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring further notice and public hearing.
5.8.2. Inclusionary Housing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit as a condition of issuance of each building permit. This fee shall
annly to all units developed on the existine three and one -tenth (3.1) P-ross acres. This fee shall
be used by the City for planning (including but not limited to preparation of one or more
elements of its general plan or for zoning amendments), conceptual design, final design, bid
preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill;
and/or construction of new or substantially rehabilitated existing affordable housing in the City.
Alternatively, Owner may at any time cease making such payments if it enters into an agreement
with the Community Redevelopment Agency or the Community Development Agency of the
City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability
covenants as required by State law, 42 inclusionary housing units totaling fifteen ep rcent (fit
75A1136
being --15 %) of the housing units proposed for the Project as provided by Health & Safety Code
section 33413(b)(2)(A)), and/or (b) provide for up to sixty percent (60 %) of these inclusionary
units to moderate income residents at its Project, consistent with Health & Safety Code section
33413(b)(2).
5.8.3 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.
5.8.4. In -Lieu Park Development Fee. The Owner shall pay an in -lieu park
development fee amount equivalent to the Park Dedication requirement r d in the •+
plan review le#e,• for . The fee shall be assessed at the value of
$35.50 per square foot of area to be dedicated pursuant to the standard established by section
34 -204 et seq. of the Santa Ana Municipal Code, as specified in said City's site plan review
letter; provided, however that the fee may be increased yearly beginning twelve months
following the effective date of this agreement, by the average rate of increase in land costs in the
City of Santa Ana, as that increase is established by the "Construction Cost Index -Los Angeles,"
published by Engineering News- Record, or substitute index chosen by the Executive Director of
Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance
of each building permit. The City shall use said fees for new parkland, capital improvements at
existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of
amount of the fee), and seventy five percent (75 %) of said fees shall be utilized by the City in the
Quadrant of the City (as set forth in the City's Park A &D Fee program) in which the Project is
located. If not used or appropriated this fee shall be returned to Develope Owner, consistent
with the provisions of (and subject to the exceptions contained within) the California Mitigation
Fee Act, Government Code § 66000 et seq.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC &R's) must be provided and approved by the Planning and Building Agency's
Executive Director for the project prior to the issu nee of the first building „ °,..,,:t recording of the
Final Map. Such CC &R's must contain at a minimum, the following:
(1) No more than four residents per unit, except that for three- bedroom
units, there shall be no more than five residents per unit.
(2) � � 0 ewtent pefmitted by law, all r-esidei-Aial and live work unit
(32) No home occupancy shall be permitted in a unit, except in
accordance with section 41 -192 et seq. of the Santa Ana Municipal Code.
{43) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC &R's in the event of
75A2137
damage.
( -54) Disclosure and release: CC &R's shall provide notice to prospective
owners of the urban character of the City and this area, including but not
limited to the permitted uses of the property and buildings in the immediate
area of the development (e.g., MacArthur Place, Griffin Towers, and
surrounding property zoned and/or devoted to commercial use), and shall
provide a release of all claims against the City which may arise from or
relate to the disclosed matters.
(65) Terms and Content:
CC &R's are to be in effect in perpetuity.
ii. Any proposed modifications to the CC &R's will require
approval by the Agency's Executive Director.
iii. CC &R's shall provide a significant financial penalty (the
.hied by law) that shall be imposed by the Home
Owner's Association to any member who violates these provisions
If the Project requires a conversion from rental units to condominiums at the time
of recording the Final Map, the Owner must abide by and comply with the requirements and
conditions of Santa Ana Municipal Code sections 34 -331, et seq., pertaining to residential
conversion projects prior to recording of the Final Map.
5.9 Responsibility Pfor Costs of Work 9of Public Art. The City and
Owner agree that Owner shall be responsible for all costs associated with the design,
construction, maintenance and repair of the work of public art provided for in the Public Art
Plan.
5.10 Moratoria. Moratoria enacted by the City for the public health, safety,
and welfare, which are imposed on the Properly or Project, shall toll the time periods set forth in
this Agreement.
5.11 City to Receive Contract Documents. Owner shall furnish City, upon
written request, copies of contracts and supporting documents relating to the work of public art.
5.4412 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.
5.4-413 Compliance Wwith Governmental Requirements. Subject to and as
otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design,
75A3138
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, the City, or any other political subdivision in which the
Property is located, and of any other political subdivision, agency, or instrumentality exercising
jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and
local occupation, safety and health laws, rules, regulations and standards, applicable state and
labor standards, applicable prevailing wage requirements, the City zoning and development
standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as
they apply to the Property and the Project, and all other provisions of the City and its Municipal
Code (as they apply to the Property and the Project), and all applicable disabled and handicapped
access requirements, including, without the limitation, the Americans With Disability Act,
42 U.S.C. § 12101 et .seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act,
Civil Code § 51 et serf. ( "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 armual review, City shall, upon written request by Owner, issue a Review Letter
to Owner (the "Letter ") stating that based upon information known or made known to the City
Council, the City Planning Commission and/or the City Planning Director, the Agreement
remains in effect and Owner is not in default. Owner may record the Letter in the Official
Records of the County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
7. DEFAULT.
7.1 Events of Default. Property Owner is in default tinder 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 in conjunction with the Project is false or proves to have been false in
any material respect when it was made;
(2) A finding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 that upon the
basis of substantial evidence the Property Owner has not complied in good faith with one or
more of the terms or conditions of this Agreement;
75k-1 39
(3) Failure to comply with Governmental Requirements regulations;
(4) Any other event, condition, act, or omission of Owner, or of its
officers, agents, employees, consultants, special counsel, or representatives, which materially
interferes with the intent and objectives of this Agreement.
7.2 Procedure upon Default.
(1) Upon the occurrence of an alleged default, City shall give Property
Owner (the "defaulting party ") thirty (30) 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 thirty (30) 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 thirty (30) day cure period. For defaults that cannot be
cured within said thirty (30) day cure period, City may terminate or amend this Agreement in
accordance with the procedure adopted by the City should at any time 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.
(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, unless such an activity constitutes a breach
of this Agreement by the City, or the City undertakes such an activity which renders impossible
Owner's performance of its obligations or exercise of aU of its rights vested under this
Agreement.
(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 Property Owner be
entitled to any damages against City upon lawful termination of this Agreement.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
75A5140
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 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 thirty (30) days following the date of default. Cfty
may modify or add to the provisions of this Section 8.2 at the request of any institutional lender
or pension trust providing financing so long as such requested modifications or additions pertain
only to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of
this Agreement.
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.
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
75A6141
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 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning
any improvements to the Property or in connection with the Project; and (c) Owner shall have the
full power and exclusive control of the Property subject to the obligations of Owner set forth in
this Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section 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 liras have been entered into or the action or inaction of any other
affected governmental jurisdiction prevents or precludes 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 City 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 Severability. If an, term, erm, provision, condition, or covenant of this
Agreement, or the application thereof to any party or circumstances, shall to any extent be held
757- -142
invalid or unenforceable, the remainder of the instrument or the application of such term,
provision condition or covenants or the application of such tern, provision, condition or
covenant to persons or circumstances other than those as to whom or which it is held invalid or
unenforceable shall not be affected thereby and each term and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
9.11 Counterparts. This Agreement has been executed in one or more
counterparts each of which has been deemed an original but all of which constitute one and the
same instrument.
9.4 -912 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10)
days following the effective date of this Agreement.
9.13 Estoppel Certificate. Either party may, at any time, and from time to
time, deliver written notice to the other party requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreement is in frill force and effect and a binding
obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in
writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in
default in the performance of its obligations under this Agreement, or if in default, to describe
therein the nature and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt thereof. The City
Manager of the City shall have the right to execute any certificate requested by Owner hereunder.
The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees,
or other parties.
75A8143
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner.
Dated this _ day of , 20
Approved as to Form:
LM
JOSEPH A. STRAKA
Interim City Attorney
THE CITY OF SANTA ANA
11A
PAUL M. WALTERS
Interim City Manager
VDC AT THE MET, LLC,
A California Limited Liability Company
.A
Ryan Ogulnick
Its Manager
75A-1 44
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city
that executed the within instrument, known to me to be the person who executed the within
instrument on behalf of the municipal corporation therein named, and acknowledged to me that
such municipal corporation executed the within instrument pursuant to its bylaws or a resolution
of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the of ., the
that executed the within instrument, known to me to be the person who
executed the within instrument on. behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board.
WITNESS my hand and official seal.
NOTARY PUBLIC
75A -145
EXHIBIT "A"
Property Legal Description
REAL PROPERTY IN THE CITY OF SANTA ANA COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 1 AS SHOWN ON EXHIBIT `B" OF LOT LINE ADJUSTMENT NO. 98.001 IN THE
CITY Or SANTA ANA, COUNTY OF ORANGE STATE OF CALIFORNIA, RECORDED
APRIL 9 1998 AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL B:
A NON - EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS
AND ACCESS AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210011 AND IN
THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 15 1998 AS INSTRUMENT NO. 19980222444, AND IN
THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT
AGREEMENT RECORDED NOVEMBER 11 2004, AS INSTRUMENT NO. 2004001056213,
ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A
HEREINABOVE DESCRIBED.
PARCEL C:
AN EASEMENT FOR THE CONSRUCTION INSTALLATION MAINTENANCE AND
REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS, AS SET FORTH IN
THAT CERTAIN STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT
RECORDED APRIL 18 2005 AS INSTRUMENT NO. 2005000291720 OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
75A -146
EXHIBIT "B"
Property Site Plan
To be inserted
75A -147
EXHIBIT "C"
Public Art Plan
Public art valued at one -half of one percent (0.5 %) of the total Project building permit
valuation is required. Public art shall be comprised of a single art piece or grouped art pieces
to be placed at a final location to be determined as specified in pafagmph section 2.5 of this
Agreement. The public art should invite participation and interaction, inspire, add local
meaning, interpret the community by revealing its culture or history, and /or capture or
reinforce the unique character of the new place. A comprehensive Public Art Plan indicating
compliance with this requirement, and which proposes specific pieces of art for specific
locations or applications, shall be submitted to the Planning Commission prior to the
completion of the project's first phase. All public art approved by the Planning Commission
in the Public All Plan shall be completely installed as provided in paw section 5.8.1 of
this Agreement.
2. All should be sited to complement features such as plaza or architectural components so that
the art is an integral part of the development site.
Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4. No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
5. All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination.
6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the
project site and may not be removed without the approval of the Planning Commission.
7. Expenses Not Allowed from Art Allocation
i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
75A -148
v. Lighting elements not integral to the illumination of the art piece.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
75A -149
EXHIBIT "D"
Cooperative Agreement for Off -Site Improvements
75A -150
COOPERATIVE AGREEMENT FOR
OFF -SITE 1MPROVEMENTS
THIS Agreement is entered into this day of , 2005, by and between
the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non -profit publio
benefit and federal 501 (e)(3) corporation ( "Sandpointe!% the NEXUS DEVELOPMENT
CORPORATIONICENTRAL DIVISION, INC. a California corporation and The Grand Plan 2,
LLC, a California Limited Liability Company (collectively referred to herein as "Nexus "),
COASTAL RIM PROPERTIES, INC., a California corporation ( "Genova Commons "), the
COMMUNITY REDEVFLOPMENT AGENCY OF THE CITY OF SANTA ANA, apublic body
corporate and politic (the "Agency "), and the CITY OF SANTA ANA, a charter city and municipal
corporation duly organized and existing under the Constitution and lays of the State of California
(the "City")
WITNESSETH
A. Nexus has proposed constructing at Hutton Center a five level residential
condominium project, two 23- residential level condominium high -rise and one 24- residential level
condominium.(for a total not to exceed 835 condominium units), together with ancillary retail not
to exceed 14,000 square feet (the "Nexus Project"),
B. Geneva Cortunons has proposed constiveting at the northeast corner of MacArthur
Boulevard and Imperial Promenade an approximately 278 -unit condominium project consisting of
an 18- residential level high rise project and an eight -story building, together with ancillary retail
(the "Geneva Commons Project').
C. Sandpointo is a non -profit corporation that serves as a conduit between the
Sandpointe Neighborhood ("Neighborhood") and outside community and political interests.
Sandpointe Neighborhood is a residential neighborhood of single family and some multi- family
homes in die southeast portion of Santa Ana. The SandpointeNoighborhood consists of
approximately 800 residences. Sandpointe does not have the authority to bind any individual
resident ofthe SandpointeNeighborliood.
D. The Agency is a community redevelopment agency, as that teen is defined in
California Health & Safety Code § 33100. In 1982, the Agency created the South Main
Redevelopment Project Area ( "Project Area "), and Nexus and Geneva Commons are located within
the Project Area.
E. Sandpointe has identified eortain physical improvements needed in the area of the
Neighborhood that am necessitated by or would in some way offset the impact of the two
developmdnt projects. Nexus and Geneva Commons desire to contribute towards the cast and/or
construction of those improvements to the Sandpointe neighborhood in addition to and to
EXHIBIT D
Ordinance No. NS -2660 t
Page 30 of 61
75A -151
supplement the mitigation measures and conditions of approval imposed by the City of their
respective developments. Those improvements are set forth in Exhibit A, attached hereto and made
a part hereof by this reference ( "Improvements ").
F. The Agency is willing to assist in the flinding of the improvements but only from a
portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to
Hurd specified improvements that would reduce blight and benefit the Project Area.
G. The City's participation in this Agreement is limited to coordination of funding
an(/or construction of certain, herein specified publicly owned improvements.
H. Nexus has agreed to constrict some of the improvements, and pay for the
construction of others, as more fully set forth below ("Nexus Improvements ").
I, Geneva Commons has agreed to pay for a portion of the Nexus Improvements,
NOW, THEREFORE, the patties hereto do mutually agree as follows;
SCOPE OF WORK
A. Nexus shall construct mid/or Rrsd the improvements identified as "Nexus
Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit B to this
Agreement, attached hereto and incorporated herein by this reference, Nexus shall be entitled to
full use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements.
B. In consideration for Nexus' agreement to construct and/or fluid the Nexus
Improvement, Geneva Commons agrees to contribute a sum equal to its pro -rata share ofresidential
units between itself and Nexus (which is currently twenty -five percent (25 %) pursuant to those
numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus
Improvements, towards the cost thereof payable at the time called for below. Notwithstanding the
foregoing, if Nexus has-not executed this Agreement prior to the date this Agreement becomes
binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day
upon which this Agreement has been executed by Geneva Commons, the City; thcAgency and
Sandpointe), then Geneva Commons pro -rata share contribution to the Nexus Escrow shall be
conclusively fixed at twenty-five (25 %) regardless of the actual number of residential units
approved for it and Nexus.
C. If the entire Nexus and Geneva Commons Projects are constructed, Agency shall
cause the construction of the improvements identified as "publicly -Owned Improvements" in
Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto
and incorporated herein by this reference. The patties acknowledge and agree that the total cost of
the publicly owned improvements, Including studies, design and overhead , shall not exceed Five
Million Dollars ($5,000,000.00),
EXHIBIT A
2 Ordinance No. NS -2680
Page M of 51
75A -152
2. CO1v ENSATION AND METHOD OF PAYMENT
A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow
account at First American Title Insurance Company, 2 First American Way, Santa Ana, California,
or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for
deposit of funds to be used to pay for lire Nexus Improvements (referred to herein as the "Nexus
Escrow' ).
B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow
Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of
this Agreement,
C. Prior to the deadline specified in paragraph 2.1), of this Agreement, Nexus and
Geneva Commons shall meet and confer in good faiths to agree upon the estimated cost of the
Nexus Improvements. If, at ally time, either Genova Commons or Nexus determines that such
agreement is not possible, then the objecting party shall submit its dispute in writing, together with
any evidence upon which it relies to the Executive Director of the City's Public Works Agency and
the other party , Within fifteen (1 S) days of its receipt of said notice, the non - objecting party shall
then have fifteen (15) days to submit any response it has to the City and the objecting party. The
Executive Director of the City's Public Works Agency or designee shall then, within thirty (30)
days of receipt of the response, if any, or the expiration of said deadline, hnform both Geneva
Commons and Nexus in writing of the final determination of the estimated total cost, which all
parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter,
Nexus and Geneva Commons shall deposit their respective shares of the estimated cost ofthe .
Now Improvements as set forth in paragraph I.B. of this Agreement, less $1,000.00, into the
Nexus Escrow no later than the date specified in paragraph 2.D, of this Agreement.
D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building
permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance
of entitlements to Nexus, provided no litigation or referendrnn petition challenging Nexus has been
filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus
Escrow no later than (i) the elate the first building permit is issued by the City for the Geneva
Commons Project, or (ii) a date ninety (90) days after the issuance of entitlements to Geneva
Commons, provided no litigation or referendum pe tition challenging Geneva Commons has been
filed and served on the City, whichever comes later.
EXHIBIT D
Ordinance No. NS -2680
Page 32 of tit
75A -153
E. The Agency shall pay the City its cost incurred by the City for the Publicly - Owned
Improvements set forth in Exhibit A to this Agreement; provided, however that total dommitment
by the City and Agency toward the Publicly -Owned Improvements shall not exceed FIVE
MILLION DOLLARS ($5,000,000.00), If the items set forth as Publicly -Owned Improvements in
Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and
absolute discretion, limit or eliminate Publicly -Owned Improvements set forth in Exhibit A;
provided, however, that the Agency shall proceed with the Publicly -Owned improvontents in the
order as set forth in said Exhibit.
NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS
A. Nexus shall prepare and submit construction drawings and related documents for
items listed on Exhibit A to the City for review (including, but not limited to, architectural review)
and written approval as and at the times established in the Schedule of Performance set forth in
Exhibit B to this Agreement. The constriction drawings and related documents shall be submitted
in two stages : - (i) the Preliminary Site Plans And (ih) Final Site Plans,
B. During the preparation of all drawings and plans, City staff and Nexus shall hold
regular progress meetings to coordinate the preparation of, submission to, and review of .
construction plans and related documents by the City. The City staff and Nexus shall communicate
and consult informally as frequently as is necessary to insure that tho formal submittal of any
documents to the City can receive prompt and speedy consideration.
C. Any revision or correction of plans required by the City shall be deemed approved
by the Agency, Geneva Commons and Sandpointe.
D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any
ownership interest in, or any right to use, the Preliminary Site Plans or the, Final Site Plans
submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the
right to use any such plans or drawings to any person or entity,
APPROVAL OF NEXUS PLANS, DRAWINGS AND RELATED DOCUMENTS
A. The City shall have the right of reasonable review (including, but not limited to,
architectural review) of all plans, drawings and related documents including any proposed changes
therein, The City shall approve or disapprove such plans, drawings, and related (and any proposed
changes therein) within the times established in the Schedule of Performance set forth in Exhibit B
hereto. Such approval shall not be unreasonably withheld.
D. Any disapproval shall state in writing the reasons for disapproval. The City shall
have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do
not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A
to this Agreement, or are incomplete.
EXHIBIT D
a Ordinance No. NS -2880
Page 33 of St
75A -154
C. The City shall state in writing the reasons for disapproval of the Final Plans within
sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60)
day period shall not be grounds for resubmittal.
D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the
plans, drawings or related documents in a manner that reasonably satisfies the reasons for
disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of
the notice of disapproval. plans, drawings, and related documents receiving City approval shall not
be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related
documents comply with all Government Requirements.
COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS
IMPROVEMENTS
a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements hi
conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent-that the
cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and
the approved Final Plans, exceeds the fiends in the Nexus Escrow, Nexus and Geneva Commons
shall be solely responsible for said costs, with each responsible for any additional cost to the same
percentage as is set forth in paragraph 13, of this Agreement. Nexus shall complete or fluid, as the
case may be; the construction of the improvements in conformance with the schedule set forth in
Exhibit B to this Agreement.
b. The parties acknowledge and agree that the Block Wall identified as Itern No, I on
Exhibit A will be constructed on the properties of dozens of individual homeowners in the
Sandpointe neighborhood, none of whom are parties to this Agreement, The parties agree to use
their best efforts to obtain permission of each of these individual property owners to constrict this
Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of
the wall, However, it is the parties understanding and intent that should any property owner retbse
to agree to permit the construction and/or exterior ivy maintenance {"hold outs"), that the Block
Wall will be constructed regardless of any hold -outs, and that Nexus shall construct the Block Wall
in such fashion as to join the Block Wall to existing wall segments owned by hold outs acid
minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe
and its officers, directors, employees and agents harmless from any claim by any and all property
owners including such hold outs arising out of the construction of the Block 'Wall in which
Sandpointe, or its officers, directors, employees or agents are named. Nexus shall be permitted to
select counsel to defend Sandpointe at the expense of Nexus. In the event of a potential conflict of
interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent
counsel. All fees mid costs of independent counsel selected by Sandpointe for defense of any claim
arising out of or relating to any claims described herein shall be paid by Nexus on behalf of
Sandpointe.
EXHIBIT b
Ordinance No. NS -2880 S
Page 34 of 81
75A -155
6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF
PUBLICLY OWNED IMPROVEMENTS
Upon the issuance of a certificate of occupancy pursuant to the California Building Code
foir (i) all residential units in a minimum of two of the three high -rise towers in the Nexus Project,
and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a
notice to proceed to design and construct the PubliolyOwnvd Improvements as set forth in Exhibit
A, If only a portion of the residential. units have been constructed within five (5) years of the date
of the Commencement Date, then the Agency shall only give the City a notice to proceed with a
pailial list of items as set forth in Exhibit C to flits Agreement. The Agency's obligation to pay for
the Publicly -Owned improvements, and the City's obligation to complete these Publiely -Owned
Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from
the project- specific tax increment generated'by the Nexus Project; provided, however, that City and
Agency shall construct item no, La. on the list of Publioly -Owned Improvements in Exhibit A to
We Agreement regardless of ifte project - specific tax increment received by the Agency.
COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY
OWNED iMPROVEMBNTS
a. City shall construct the Publicly -Owned improvements In conformance with the
schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however,
that the Agency and City shall have no obligation once the cost of the Publicly Owned
Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly -Owned
Improvements, including all design, administrative and eonstruction'costs exceed $5,000,000.00,
then the City shall construct only that portion of the Publicly Owned Improvements as specified in
Exhibit C in the exercise of the Agency's sole and absolute discretion.
b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B,
additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of
the block wall, referenced in item no. I on BxNbit A hereto, but the City's obligation to maintain
the climbing vines shall only apply to those property owners who execute a fagade easement with
the City In a form approved by the City Attorney permitting the City to maintain said climbing
vines and indemnifying the City from any liability caused by said climbing vines and/or irrigation.
Sandpointe shall be responsible for obtaining signatures from these individual homeowners.
LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY
INJURY AND PROPERTY DAMAGE INSURANCE
A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall
Indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents
and employees harmless from and against all damages to property or injuries to or death of any
person or.persons, including employees or agents of Agency or City, and shall defend, indemnify
EXHIBIT D
6 Ordinance No. NS -2080
page 35 of 61
75A -156
and save Agency, City and Sandpointe, and their officers, agents, and employees, from any and all
claims, demands, suits, actions, or proceedings of any kind or nature, including, but not by way of
limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting fzonr
the negligent or wrongful acts or omissions of Nexus or Oeneva Commons or their respective
employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold harmless
Agency, City and their respective officers, directors, agents and employees from and against all
damages to property or injuries to or death of any person or persons, in any way resulting from the
negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective
employees, agents or subcontractors. This Agreement shall not be intorpreted or construed to
obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or
to answer in any way for the, Agency the City or their respective officers, directors, agents or
employees for such claims,
13. Prior to the commencement of construction, Nexus br any other party working
within the real property of the City or Agency, shall obtain at its solo cost and file with the City and
Agency, and maintain for the period covered by this Agreement, a policy or policies of liability
insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the
City and Sandpointe, their officers, directors, agents, and employees, as insured or additional
insured, which provides coverage not less than Qrat provided in the form of a comprehensive
general liability insurance policy against liability for any and all claims and suits for damages or
injuries to persons or property resulting from or arising out of operations of Nexus, its officers,
directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both
bodily injury and property damage in not less than One Million Dollars ($1,000,000) combined
single limit, or its equivalent. Said policy or policies shalt also contain a provision that no
termination, cancellation, or change of coverage of insured shall be effective until after thirty (30)
days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and
City prompt and timely notice of claim made or suit instituted arising out of Nexus operations
hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and
amounts of insurance, which in its own judgment may be necessary for its proper protection in the
prosecution of the work. All insurance policies shall be written by responsible and solvent
insurance companies and shall include an additional insured endorsement in substantially the form
of Exhibit D, attached hereto and incorporated herein by this reference
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
Nexus shall carry out the design, construction, and operation of the Nexus Improvements in
substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations,
orders, and decrees of the United States, the State of California, the County of Orange, the City, or
any other political subdivision in which the Property is located, and of any other political
subdivision, agency, or instrumentality exercising jurisdiction over the City or Nexus, including all
applicable federal, state, and local occupation, safety and health laws, rules, regulations and
standards, applicable state and labor standards, applicable prevailing wage requirements, the City
zoning and development standards, City permits and approvals, building, plumbing, meohanical
EXHIBIT D
Ordinance No. NS 2680 7
Page 36 of 61
75A -157
and electrical codes, and all other provisions of the City and its Municipal Code, 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 Umth
Civil Rights Act, Civil Code § 51 et seq. C Govenunental Requirements "),
10. DEFAULTS AND REMEDIES
If any party defaults in performance of its obligations, covenants or agreements hereunder,
the defaulting parry shall be entitled to cure the default in accordance with this section. The, injured
party shall give written notice of default to the party in default, specifying the default complained of
by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor
shall it change the time of*fault. Tire defaulting party must, within thirty (30) days, following
service of said notice, continence to cure, correct or remedy such failure or delay and shall complete
such cure, correction, or remedy with reasonable diligence.
11. INSTITUTION OF LEGAL ACTIONS
Subject to the, provisions of Section 13. hereof, in addition to any other rights or remedies, either
party may institute, legal action to cure, correct or remedy any default to recover damages for any
default, or to obtain any other remedy consistent wish the purpose of this Agreement.
12, APPLICABLE LAW
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed and construed in accordance with the laws of the State of California.
This Agreement has been executed and delivered in the State of Call forma and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. All parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
13. RIGHTS AND REMEDIES ARE CUMULATIVE
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the patties are cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for tiie same default or any other default by the other patty.
EXHIBIT D
R Ordinance No. NS -2680
Page 37 of 61
75A -158
14. DAMAGES
In the event that the Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva
Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva
Commons in the performance of this Agreement and shall not - extend to compensation for loss of
future income, profits or assets.
15, NOTICES, DEMAND AND COMMUNICATIONS
Formal notices, demands and communications between the parties shall be sufficiently given if
dispatched by registered or certified mail, postage prepaid, return receipt requested, to the.principal
offices of the Agency and the Developer as designated below. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may from
time to time designate by mail as provided in this section,
City: City of Santa Ana
Planning and Building Agency
20 Clvie Center Plaza, M-20
Santa Ana, CA 92702
Attn; Steve (larding, Executive Dircctor
Phone: (714) 667 -2700
Pax: (714) 973 -1461
with copy to; City Attorney
20 Civic Center Plaza, M -29
Santa Ana, California 92702
Agency: Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M -25
Santa Ana, CA 92702
AM, Patricia C. Whitaker, Executive Director
Phone: (714) 647 -5360
Fax: (714) 647 -6549
with copy to: Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza, M -29
Santa Ana, California 92702
EXHIBIT D
Ordfnance No. NS -2680 9
Page 36 of tit
75A -159
Sandpointe: Sandpointe Neighborhood Association, Inc.
P.O. Box 27122
Santa Ana, California 92799
Attention: Bob Black
Nexus: Nexus Development Corporation/Central Division, Inc.
The Grand Plan 2
1 MacArthur Place, Suite 300
Santa Ana, California 92707
Attention: Cory W. Alder
Geneva Commons: Coastal Rim. Properties, Inc.
139 Bast Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
A party may change its address by giving notice in writing to the other parties. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be
effective or deemed to have been given three (3) days after it has been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If
sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective
or deemed to have been given twenty -four (24) hours after the time set forth on the transmission
report issued by the transmitting, facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays hall be excluded.
EXHIBIT D
10 ordinance No. NS -2680
Page 39 of tit
75A -160
16. EFFECTIVE DATE AND TBRM OF AGREEMENT
This Agreement shall take effect from and after the date of adoption and approval by the
City and the Agency pursuant to. official action of the governing bodies thereof and shall be
effective until completion and acceptance of the Nexus - Improvements and Publicly -Owned
Improvements: If Geneva Commons is approved by the City and Nexus is not, then Geneva
Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements
under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe,
and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which
of the Nexus Improvements shall be constructed using Geneva Commons twenty-five percent
(25 %) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and
acknowledge that all roforences herein to Nexus shall be deemed to be references to Geneva
Commons. IfNexus is approved and Geneva Commons is not, then Nexus, the Agency and
Sandpointo shall meet and confer in good faith, and using the order of the Nexus improvements
specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed
using Nexus seventy -five percent (75 %) snare of the estimated cost of the total Nexus
Improvements.
17. COMMENCEMENT DATE
. For purposes of this Agreement the terns "Commencement Date" shall refer to the period
after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the
issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The
Commencement Date shall be tolled should a valid referendum petition be presented challenging
either project, or timely litigation be filed and served challenging any ofthe entitlements, including
approval pursuant to the California Environmental Quality Act.
18, INTEGRATION
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto,
and supersedes all negotiations or previous agreement between the parties with respect to all or
any the matters addressed heroin. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate authorities of the parties, and all amendments hereto must
be in writing and signed by the appropriate authorities of the parties,
19. ASSIGNMENT
Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in
whole, to any person, entity (public or private), partnership, joint venture, firm or corporation
who is the owner of the real property referenced in the Recital hereto at any time during the term
of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this
Agreement may not be transferred or assigned unless the written consent of the City. Council is
first obtained and any transfer or assignment of the rights under this Agreement shall include in
.EXHIBIT D
Ordinance No. NS -2680 1 i
Page 40 of 61
75A -161
the City grants written consent to transfer the rights, Nor shall the rights of Nexus or Geneva
Commons hereunder be subject to assignment by attachment, execution, or proceedings under
any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void
and of no force and effect unless such written consent thereto be obtained from the City Council.
Stich transfer or assignrnent shall not relieve Nexus or Geneva Corwrions of any duty, obligation
or liability to City without the consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement sball observe and perform all of the duties and obligations of Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commous. Any and all approved successors od assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement, If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to pexsons for
development by them, Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS '4MREOP, the parties hereto have executed this Agreement the date and
year first above written,
SANDPOI NTE MIGi-II3ORHOOD,
ASSOCIATION, INC.
e;
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, INC,
By
Name
Its
12 Ordinance No. NS -2680
Page 41 'of 61
75A -162
the City grants Nvritten consent to transfer the rights. Not shall tbo. rights of Nexus or Geneva
Commons hereunder be subject to assignment by attachment, execution, or proceedings under
any provision of the Banlcruptey Act, acid any such assignment or transfer shall be wholly void
and of no force and effect unless such written consent thereto be obtained from the City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation
or liability to City without the consent of the City.
During the terns of this Agreement, any approved assignee or transferee of the
rights undt<r this Agreement shall observe and perform all of the duties and obligations of Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or
Geneva Commons shall have all of the same rights, benofits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement; If the Property is subdivided,'any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Capon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTB NEIGHBORHOOD,
ASSOCIATION, INC.
By
Name
Its
NEXUS DEVELOPMENT CORPORATION/
CBNTRAL DIVISION, INC.
By Z"t-1 4z O
Name
Its
Chdinance No. NS-2660 12
Page 42 of 61
75A -163
ATTEST: COTvIIyIU'NITY DEVELOPMENT AGENCY
OF THE CITY UP SANTA ANA
By
Patricia B, Healy Patricia C. Whitaker
Secretary of Agency Executive Director
APPROVED AS TO PORM:
Joseph W, Pletcher
Agency General Counsel
EXHIBIT D
Ordinance No. NS -2680 14
Page 44 of 69
75A -164
EXHIBIT A
OFF -SITE IMPROVEMENTS
Block Wall
a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy
b. North side o #'Sunflower between Main & alley adjacent to four plexes, excluding
sections of wall at corner of Main & Sunflower at rear of commercial building
c. Plaster and paint with one color selected by Association
d. $3,000 per house payment for repair /replacement of landscaping associated with
wall improvements upon execution of Nexus right -of -entry for construction and
exterior -wall maintenance easement. This payment shall be made by Nexus at the
time the individual property owner executes the construction casement in favor of
Nexus and permanent maintenance easement (for the climbing vines) in favor of
the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement,
Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out,
o. Remove and replace 16 sections of white concrete block wall in immediate area of
MacArthur Boulevard and Flower Street, and paint with one color selected by
Association.
f. Remove and replace 4 sections of white concrete block wall along West Alton
Avenue and paint with one color selected by Association.
g. Nexus shall install climbing vines, species Identified by the City, along the outer
edge of the wail, install irrigation to feed said climbing vines which shall be
connected and metered by Nexus at the nearest City water supply, and shall
reconstruct the sidewalk to the City's specifications after installation of the
irrigation lines and block wall.
h. Wall replacement specifications shall be established pursuant to paragraph 4 of
this Agreement.
i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety
(90) day plant establishment phase following item no. 1.g.
2. Window Replacements
a. Nexus shall provide $3,500 construction allowance per house for sound proof
window replacements for up to 49 residential units located along Mali) Street and
Sunflower Avenue behind the existing concrete wall to be replaced. The 49
residential units are identified in Exhibit A -I to this Agreement.
b. Nexus shall assist Sandpointe in oblaining/preparing necessary construction bids,
documents and permits.
e. Allowance will be paid by Nexus to Sandpointe for any applicable home upon
receipt of bona fide construction or material invoices.
d. Allowance shall expire 12 months following the completion of the concrete wall
EXHIBIT D
t 5 ordinance No. NS -2844
Page 45 of tit
75A -165
replacement improvements.
e. 'Window specifications shall be established pursuant to paragraph 4 of this
Agreement.
3, Taft Elementary Loading Zone
a. Nexus shall construct all improvements necessary to effectuate Definitive
Easement Agreement between Santa Ana Unified School District, Nexus and
South Coast Church.
b , improvements to loading zone shall include driveway approaches, traffic lanes on
site, striping, church building renovations, portable classroom relocations,
computer lab on school and church properties, We. as provided for in plans
included as part of Definitive Easement Agreement.
4. Fay City $200,000 for City to implement a Neighborhood Traffic Management
Plan ( "NTMP") to mitigate changes in traffic patterns or increased out through
traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointo
Neighborhood. NTMP costs shall include traffic studies, staff time to process
neighborhood traffic plan, and the consttuction of appropriate traffic calming
devices, including but not limited to semi- diverters, diagonal diverters, and street
olosures. The implementation of the NTMP shall be pursuant to procedures
adopted by the City Council.
5. Nexus shall pay the City the Rill cost (sec ]exhibit 13) for the installation of a
Traffic Signal at the intersection of MacArthur Boulevard and Birch Street,
Pn flely -Owned Imnrnvamatltts
I Utility Undergrounding
a, Main Street — MacArthur to Sunflower
b. MacArthur -- Main to Flower
c. Sunflower — Main to Flower (north side of street)
EXHIBIT D
Ordinance No. NS -2680 16
Page 46 of 51
75A -166
SMSIt Pinttiyliemal
1_ 101 W. Murphy
2, 37015, Alga
1 3703 8. Aldot
4. 3709 S. Alder
3. 3713 S. Alder
6. 3717 S. Alder
7. 3721 S. Alder
S. 37z5 S. Aida
9. 3719 $- Alder
10, 311013. Alder
11. 311034-Alder
12. 3809 S. Aldan
13. 3813 S. Alder
14. 3811 S. Aldw
13, 382) S, Aldo
16, 3323 S. Alder
17, 3829 S. Alder
18. 390181 Alder
19. 3903 S, Alder
20. $909 S. Alder
21. 101 W. Stweat
22. 106 W, covens
23. 1 to W, Stwem
24. 114 W,Stavens
25. 1(8 W, slo era
26. 122 W. Steam
27. 207 W.Sekwem
28. 206 W. Stevens
29. 21 o W. Stevms
30. 214 W. Stevens
31. 3926 S.'rimba
42. 302 W. Stovem
33. 306 W.3wmu
34. 310 W. S14mi
3s, 314 W. Stcvw
36, alb S, Stevan
37. 3922 S. Stroh
Fnnrpk,xtd
EXHIBIT A -1
List of 49 Residential Units
List ofBllgiblo Kano fbt
Window Rcplacetncnia"
Alons*11in and Sunflowu
(elder to Main)
(back# to Main)
(halts to Main)
(paeki to Main)
(bi4sSc+t M Maln)
(baba to Milo)
(bmkx to Main)
(bade to Main)
(was to Mein)
(bacta to Maln)
(bIw to MNn
(W.ks to MAM))
(b4dwto Milo
(bade# to Meln)
(back4 W Main)
(hacks to Alder)
(Mdcs to Msln}
(barter to Mrh,
(backs to Main)
(badce to Main)
(backs lo Win attd M1niMRtktt)
(book+ to Main and Mini Market)
(bteta to Main ad Mini Markel)
(pact# to sunflowNer &W)4101 MRrieel)
(backs to 8vunowu}
(backs to Sutt(low
(backs to 8enflower)
(bada to Snnfl"W)
(batki to 5unfltnww)
(husks to Suat7ovrw)
(aidw to 9unttowa)
poc to Svnflow)
(backs to.. unflower)
(haslet# to sunflower
(backs fo SunflO„W
(backs to Sunjlowvtx)
(backs to Sunflower)
38, 392$ S, Roes
(Aldo# to Sunflower)
39. 491 W. Sunflower
(rronle Soaflowsr)
40. 409 W. Sunnower
(Boras Sunflower)
41, 409 W. SunfloWff
(rronfs sunflower)
42. $01 W. Sunflower
mono# sunflower}
43. 305 W. Sunflower
�rront+Sunpowes)
44. 509 W, Sunflower
(neat## Sunflower
4$, 513W,Sunikoww r
(frentsUnflower)
Milo Attraction Cottdomlrrtuma
46.3620 AS. Mau
(sl4as to Main)
47,3632 AS. Mo9n
(=b Main)
48.3632 R S. Main
(Oronts Main)
49.3632 C S, Min
{fronts Main)
17
Ordinance No. NS -2680
, Page 47 of 81
75A -167
EXH113IT 13
SCHEDULE OF NEXUS IMPROVEMENTS
Constriction of Item No. 1 to Exhibit A shall conform to the following schedule:
a. Preliminary Site Plans — Due within thirty (30) days of the Commencement Date,
c. Final Plans — Due within sixty (60) days of City approval of preliminary Site
Plans, together with proposed Right -Of -Entry and Maintenance Easement for
review of City and Sandpointe.
d, Building Permits, Construction Right -Of- -Entry (in favor of Nexus), and
Permanent Maintenance Easement for Exterior of Wall (in favor of City) w
Application, right of entries and easements shall be submitted no late than sixty
(60) days after City approval of Final Plans,
e. Construction Commencement -- Within thirty (30) days after approval of Building
Pormits.
f. Construction Complete — Within one hundred twenty (120) days of
commencement of construction,
g. Ninety (90) day plant establishment phase after completion of construction of
climbing vines and irrigation.
2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule:
a. Final building permit plans shall be submitted by individual Sandpointe
homeowners to City no later than constriction complete date for item no. 1,
above.
b. Construction shall be complete pursuant within one hundred twenty (120) days of
issuance of City Building Permit.
3. Constmvtion of Item No. 3 to Exhibit A shall conform to the following schedule:
a. Nexus shall submit executed Definitive Easement Agreement to all parties no
later than one hundred eighty (180) days of the Commencement Date. If Nexus
fails to incot this deadline, which may bo extended in Writing by Nexus and
Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a
separate escrow with terms providing for its withdrawal by Sandpointe, which are
mutually agreeable to all patties, for use by Sandpointo on other projects to
benefit the Sandpointe neighborhood.
b. Nexus shall complete this item not later than eighteen (18) months froth the
EXHIBIT D
Ordinance No. NS -2880 is
Page A8 of tit.
MEN [196
Commencement Date.
4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final
map for the Nexus Project, The City shall follow the Neighborhood Traffic Management
Plan Policy adopted by the City Comicil.
S. Construction of Item No. 5 to Exhibit A shall conform to the following schedule:
a. The City shall provide Nexus with a preliminary estimate of this cost within thirty
(30) days of the Co mmencement Date. This preliminary estimate shall be updated,
if necessary, upon the City's receipt of Nexus application to final any portion of its
tentative tract map. Said estimate shall be conclusive.
b. Nexus shall pay the City the estimated cost of this item not later than approval of
the first final map for the Nexus Project.
c. The City shall complete construction of this item prior to the first certificate of
occupancy for the Nexus Project.
Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus
and tite City Manager or designee.
EXHIBIT D
19 Ordinance No. MS -2880
Pago 49 of 61
75A -169
EXHIBIT C
SCHEDULE FOR PUBLICLY -OWNED IMPROVEMENTS
I , City shall complete item no. I.a. on Exhibit A of Publicly -Owned Improvements not later
than Jane 2005,
2. City shall complete item no. I.b. on Exhibit A of Publicly -Owned improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
3, City shall complete item no. I.e. on Exhibit A of Publicly -Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
Notwithstanding this schedule, City shall make a reasonable good falth effort to offeotuate the
completion of these Publicly -Owned Improvements (which, under current law. must be designed
and cormtnicted by Southern California Edison and not the City) prior to the dates specified above,
EXHIBIT D
Ordinance No. NS 2680 20
Page 50 of 61 -
75A -170
EXHIBIT "E"
Remaining Offsite Mitigation Measures
The Met at South Coast Public Improvements
Improvement Location
New sidewalk Property frontage on First American Way
New driveway( "pan" style) First American Way
Dedication for 25'x 25' comer cut -off NIE comer of MacArthur & Imperial
Promenade
Sidewalk easement
Street dedication
4" depressed curb
Triple -left traffic mitigation measure
including sign bridge, , signal modification,
updated detection, and signing and striping
on both streets
Pavement Rehabilitation (minimum 2"
grind and overlay}
Installation of new public fire hydrants
10' alone property frontage of MacArthur Blvd.
60' from street centerline along MacArthur
Blvd.
Emergency access on MacArthur Blvd.
Southbound Imperial Promenade at MacArthur
Blvd
On Imperial Promenade and First American
Way along property frontage from curb to street
centerline
Along MacArthur Blvd. and First American
`I►!� A
75A -171
75A -172
ROH — 03/05/12
RESOLUTION NO. 2012-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA
APPROVING MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING PROGRAM, ENVIRONMENTAL REVIEW NO. 2011 -46;
APPROVING VESTING TENTATIVE TRACT MAP NO. 2012 -01 AS
CONDITIONED; AND, APPROVING SITE PLAN REVIEW NO. 2012 -01 AS
CONDITIONED FOR THE PROPERTY LOCATED AT 200 EAST FIRST
AMERICAN WAY
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. Vineyard Development is requesting approval of an amendment to an
existing development agreement, zoning ordinance amendment, vesting
tentative tract map, and site plan review to allow the construction of a
multifamily residential project with 278 units at 200 East First American
Way.
B. This Resolution came before the Planning Commission for a duly noticed
public hearing on January 23, 2012. At that time, the Planning
Commission continued the matter to February 13, 2012. Staff
recommended that the Planning Commission vote to recommend that the
City Council:
1. Approve and adopt the Mitigated Negative Declaration and Mitigation
Monitoring Program, Environmental Review No. 2011 -46.
2. Adopt an ordinance approving Zoning Ordinance Amendment No.
2012 -01 to amend Specific Development Plan No. 43.
3. Adopt an ordinance approving Amendment to Development
Agreement No. 2004 -03 for the VDC at The Met project.
4. Adopt a resolution approving Vesting Tentative Tract Map No.
2012 -01 (County Map No. 17437) as conditioned.
5. Adopt a resolution approving Site Plan Review No. 2012 -01 as
conditioned.
On February 13, 2012, the Planning Commission split by a vote of 3:3
(Commissioner Yrarrazaval absent) on a motion to approve the project,
thus creating an impasse. Pursuant to Planning Commission Bylaws
(Resolution 01 -44, § 8e), the applicant desired to proceed to City Council.
Resolution No. 2012 -xxx
75A-1 7 3 Page 1 of 6
C. In accordance with State law, the zoning ordinance amendment and the
project's close proximity to the John Wayne Airport (JWA) requires the
project to be submitted to the Airport Land Use Commission (ALUC) for a
determination of consistency with the Airport Environs Land Use Plan
( AELUP) for JWA. The project received FAA clearance on January 26,
2012, with Aeronautical Study No.2012 -AWP- 393 -OE. At the regular
meeting of the ALUC for Orange County on February 16, 2012, the
Commission found that the proposed Met at South Coast Multi - Family
project located at 200 First American Way is consistent with the AELUP
for JWA, and that the project is consistent with the AELUP for Heliports.
D. Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) has
been filed seeking approval of a vesting tentative tract map for
condominium purposes.
1. To adopt a Vesting Tentative Tract Map, California Government
Code Section 66474 requires the following findings:
The proposed project, as conditioned, and its design and
improvements are consistent with the District Center
designation on the General Plan and are otherwise
consistent with all other elements of the General Plan.
The proposed subdivision, Vesting Tentative Tract
Map No. 2012 -01 is consistent with the District Center
land use designation and density prescribed and all
other elements of the General Plan.
The proposed project, as conditioned, conforms to all
applicable requirements of the zoning and subdivision codes
as well as other applicable City ordinances.
The proposed subdivision conforms to the minimum
condominium requirements, as well as meets the
letter and intent of the State of California Subdivision
Map Act Provisions. Vesting Tentative Tract Map No.
2012 -01 is in keeping with the Site Plan Review
(Development Project No. 2011 -11) and Chapter 34
and 41 of the Santa Ana Municipal Code. Covenants,
Conditions and Restrictions (CC &Rs) are required for
the project, which need to be approved by the City
prior to City Council approval of the final map.
iii. The project site is physically suitable for the type and density
of the proposed project.
The proposed site consists of approximately three
acres of land within SD -43, which is physically
Resolution No. 2012 -xxx
75A-1 74 Page 2 of 6
suitable for the residential development as proposed.
Access to the site will occur on First American Way
for automobiles. There are no physical constraints on
the site to preclude development.
iv. The design and improvements of the proposed project will
not cause substantial environmental damage or substantially
and avoidably injure fish or wildlife or their habitat.
A mitigated negative declaration (MND) was prepared
pursuant to the California Environment Quality Act for
the project. The MND has provided mitigation
measures to address plant and wildlife populations
existing on the project site. Therefore, the proposed
subdivision will not cause any substantial
environmental damage or substantially and avoidably
injure fish and wildlife or their habitat.
V. The design or improvements of the proposed project will not
cause serious public health problems.
The proposed subdivision is not going to have any
detrimental effects upon the general public. The MND
has identified and addressed impacts and provided
mitigation measures to address potential impacts from
the project.
vi. The design or improvements of the proposed project will not
conflict with the easements acquired by the public at large
for access through or use of property within the proposed
project.
There is no easement for public access on this
property, therefore the proposed project will not
conflict with easements necessary for public access
through or use of the property. Public access will be
provided from First American Way, MacArthur
Boulevard and MacArthur Place.
E. The Applicant is requesting site plan approval for the project (Site Plan
Review No. 2012 -01). The zoning designation for the subject property is
Specific Development Plan No. 43 (SD -43).
Section 41- 593.5(c) of the Santa Ana Municipal Code requires
review of all plans within a specific development plan area to ensure
the project is in conformity with the Specific Plan.
Resolution No. 2012 -xxx
75A -175 Page 3 of 6
2. Considering adoption of the amendments to SD-43 requested by the
applicant, the project is in compliance with all applicable development
standards outlined within the Specific Development Plan (SD -43).
3. Considering adoption of the amendments to SD-43 requested by the
applicant, the project has been determined to be in compliance with
applicable parking, landscaping and architectural provisions
governing the project.
Section 2. The City Council has reviewed and considered the information
contained in the initial study and the mitigated negative declaration and mitigation
monitoring program, Environmental Review No. 2011 -46, prepared with respect to this
Project. The City Council has, as a result of its consideration and the evidence
presented at the hearings on this matter, determined that, as required pursuant to the
California Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, a
mitigated negative declaration and mitigation monitoring program adequately addresses
the expected environmental impacts of this Project. On the basis of this review, the City
Council finds that there is no evidence from which it can be fairly argued that the Project
will have a significant adverse effect on the environment. The City Council hereby
certifies and approves the mitigated negative declaration and mitigation monitoring
program and directs that the Notice of Determination be prepared and filed with the
County Clerk of the County of Orange in the manner required by law.
Pursuant to Title XIV, California Code of Regulations ( "CCR ") § 735.5(c)(1), the City
Council has determined that, after considering the record as a whole, there is no evidence
that the proposed project will have the potential for any adverse effect on wildlife resources
or the ecological habitat upon which wildlife resources depend. The proposed project
exists in an urban environment characterized by paved concrete, roadways, surrounding
buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and
Title XIV, CCR § 735.5(a)(3), the payment of Fish and Game Department filing fees is not
required in conjunction with this project.
Section 3. The City Council of the City of Santa Ana after conducting the public
hearing hereby approves:
A. Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011 -46.
B. Vesting Tentative Tract Map No. 2012 -01 as conditioned in Exhibit
"A" attached hereto and incorporated herein.
C. Site Plan Review No. 2012 -01 as conditioned in Exhibit "B"
attached hereto and incorporated herein.
These decisions are based upon the evidence submitted at the above said
hearing, which includes, but is not limited to: the Request for Council Action dated
March 5, 2012, and exhibits attached thereto; and the public testimony, written and oral,
all of which are incorporated herein by this reference.
Resolution No. 2012 -xxx
75A -176 Page 4 of 6
Section 4. This Resolution shall not be effective unless and until Ordinance No.
and Ordinance No. become effective. If said ordinances are
for any reason held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, or otherwise do not go into effect for any reason, then this
resolution shall be null and void and have no further force and effect.
Section 5. This decision rendered by the City Council of the City of Santa Ana
is final and is subject to judicial review pursuant to California Code of Civil Procedure
section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the
Council's decision and these findings.
ADOPTED this day of
APPROVED AS TO FORM:
Joseph A. Straka
Interim City Attorney
al
Ryan O. Hodge
Assistant City Attorney
AYES:
NOES:
ABSTAIN:
NOT PRESENT
Councilmembers
Councilmembers
Councilmembers
Councilmembers
2012
Miguel A. Pulido
Mayor
75A -177
Resolution No. 2012 -xxx
Page 5 of 6
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached
Resolution No. 2005 -XXX to be the original resolution adopted by the City Council of the
City of Santa Ana on
Date:
Clerk of the Council
City of Santa Ana
Resolution No. 2012 -xxx
75A -1 78 Page 6 of 6
Conditions for Approval for Vesting Tentative Tract Map No. 2012 -01
(County Map No. 17437)
Should the Planning Commission approve Vesting Tentative Tract Map No. 2012 -01, the
approval is subject to compliance, to the reasonable satisfaction of the Planning Manager,
with all applicable sections of the Santa Ana Municipal Code, the California Administrative
Code, the California Building Standards Code and all other applicable regulations.
The applicant must comply in full with each and every condition listed below rip or to
exercising the rights conferred by this vesting tentative tract map.
The applicant must remain in compliance with all conditions listed below throughout the life
of the vesting tentative tract map. Failure to comply with each and every condition may
result in the revocation of the vesting tentative tract map.
A. Planning Division
All proposed improvements must conform to the Site Plan Review approval
of DP No. 2011 -11 and the staff report exhibits.
2. Any amendment to this vesting tentative tract map must be submitted to the
Planning Division for review. At that time, staff will determine if
administrative relief is available or the variance must be amended.
3. Landscaping, once installed, shall be maintained per the approved
landscape plan. After project occupancy, landscaping is to be maintained to
include the minimum level of plant materials installed at the time of
occupancy and per the approved plan.
4. A Parking Management Plan documenting how the tandem parking stalls
along with other parking operation will function must be submitted and
approved prior to submittal into building plan check. The project shall
incorporate on -site professional property management for the residential
component.
5. Covenants, Conditions and Restrictions (CC &Rs) shall be provided for the
project. At a minimum, the CC &Rs shall include provisions pertaining to
owner occupancy, restrictions on home -based businesses, the prohibition of
storage on balconies, and a restriction on truck delivery hours to non -peak
periods shall be submitted prior to building plan check.
6. Prior to submittal into building plan check, detailed elevations shall be
submitted to include exterior finishes, materials, and colors subject to
approval of the Planning Division. Such plans shall include revised interior
7'6W-t;ft 9
VTTM NO. 2012-01
MARCH 5, 2012
PAGE 2OF7
elevations that use the exterior finishes and materials in the same quantity,
subject to the approval of the Planning Division.
7. All parking for the project shall be made available free of charge. Two
parking spaces per dwelling unit shall be provided as a part of the deed for
each dwelling unit.
8. A Public Art Plan which proposes a specific work(s) of art for a specific
location(s) shall be submitted to the Planning Commission for review and
approval. All public art approved by the Planning Commission shall be
completely installed prior to the issuance of a certificate of occupancy for the
project.
9. After project occupancy, landscaping is to be maintained to include the
minimum level of plant materials installed at the time of occupancy as
required by the approved plans.
10. A detailed amenity deck plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include details on the
hardscape design, lighting concepts and outdoor furniture for the amenity
deck as well as an installation plan. The exact specifications for these items
are subject to the review and approval of the Planning Commission. The
amenity deck shall be maintained in the same condition as installed at the
time of occupancy.
11. A detailed water feature plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include a minimum of one
water feature within each public plaza, interior courtyard and roof top deck
and include elevations, hardscape design, lighting concepts and an
installation plan. The exact specifications for these items are subject to
review and approval of the Planning Division. The water feature(s) shall be
maintained in the same condition as installed at the time of occupancy.
12. At a minimum, the following items must be included as exterior amenities for
the development: bike racks, enhanced paving on the walkways, an outdoor
fireplace, barbeque and a pool on the amenity deck. The exact
specifications for these items are subject to the review and approval of the
Planning Division.
13. An interior building amenity plan of the Recreation Room must be reviewed
and approved prior to issuance of any building permits. The plan shall
include details on the various finishes and equipment to be provided in these
A
VTTM NO. 2012 -01
MARCH 5, 2012
PAGE 3OF7
rooms. The exact specifications for these items are subject to the review
and approval of the Planning Division.
14. The following items must be included as interior amenities within the
common areas: granite counter tops, hardwood flooring or equivalent, and
gas fireplaces. The exact specifications for these items are subject to the
review and approval of the Planning Division.
15. The following items must be included as interior amenities within each unit:
granite counter tops or equivalent, hardwood flooring or equivalent, General
Electric Monogram appliances or equivalent, tiled bathroom and shower
walls, stain grade hard wood cabinets and individual laundry hook -ups. The
exact specifications for these items are subject to the review and approval of
the Planning Division.
16. An elevator lobby plan of each lobby must be reviewed and approved prior
to issuance of any building permits. The plan shall include details on the
finishes and flooring to be provided. The exact specifications for these items
are subject to the review and approval of the Planning Division.
17. Pedestrian walkways shall be provided through the project. The amenities
to be provided along this pathway shall include decorative concrete and
paving, accent lighting, and landscape planters. The materials and design
of the walkway is subject to the review and approval of the Planning
Division.
18. A Resident Storage Plan shall be provided for the project. Storage shall be
available at no cost to the residents.
19. Cast iron drain pipes shall be provided for the project.
20. Smart wiring, including cable television and high -speed cable for computers,
shall be provided for each unit and within the project's common areas.
21. Signage to direct guests to the parking structure shall be provided. A
directional sign plan needs to be submitted and approved by the Planning
Division prior to issuance of a certificate of occupancy.
22. Construction workers for the project shall be prohibited from parking in the
adjacent neighborhoods.
A
VTTM NO. 2012 -01
MARCH 5, 2012
PAGE 4OF7
23. Prior to issuance of building permits, a Waste Management Plan shall be
submitted to the Planning Division and Public Works Agency for approval.
The plans shall include information on items such as pick -up, delivery, and
types of bins required. The plan shall fully address operational as well as
daily management functions and responsibilities.
24. Prior to occupancy of any units, a rental housing execution plan must be
submitted to the Planning Division for review and approval. At a minimum,
the plan shall identify the location of employee and visitor parking, the
location of the rental office, hours of operation for the rental office, and
signage affiliated with the Rental Housing Operational Plan. In addition, the
rental plan must clearly note that the parking and project amenities must be
provided free of charge to the residence.
25. Prior to submittal into building plan check, the design for the courtyard gates
shall be submitted to the Planning Division for approval. The fences /gates
shall be decorative and ornamental in nature as they are the entries to the
interior courtyards.
26. The following best management practices (BMPs) need to be incorporated
into the project construction and operation to minimize green house gas
impacts:
a. Install energy efficient lighting, appliances, heating, and cooling
systems.
b. Install efficient lighting for street and other outdoor lighting.
C. Reduce unnecessary outdoor lighting.
d. Provide education on energy efficiency to residents and /or tenants.
e. Install water - efficient irrigations systems and devices.
f. Design buildings to be water - efficient. Install water - efficient fixtures
and appliances.
g. Provide education about water conservation.
h. Provide easy and convenient recycling opportunities for residents and
tenants.
i. Provide education on recycling waste.
27. In accordance with California Business and Professions Code section
11010(b)(13), the Final Tract Map and the Deed Disclosure Notice for
residential property shall include the following language:
"NOTICE OF AIRPORT IN VICINITY
7%A- Ik
VTTM NO. 2012-01
MARCH 5, 2012
PAGE 5 OF 7
This property is presently located in the vicinity of an airport, within
what is known as an airport influence area. For that reason, the
property may be subject to some of the annoyances or
inconveniences associated with proximity to airport operations (for
example: noise, vibration, or odors). Individual sensitivities to those
annoyances can vary from person to person. You may wish to
consider what airport annoyances, if any, are associated with the
property before you complete your purchase and determine whether
they are acceptable to you."
28. Designated outdoor common or recreational areas shall provide outdoor
signage informing the public of the presence of operating aircraft.
29. Prior to issuance of any building permit, a storage plan shall be submitted
and approved indicating storage areas measuring a minimum of 256 cubic
feet per residential unit within the project's garage and assigned to each unit
at no additional cost.
30. Prior to submittal into Building Plan Check, a landscape plan shall be
submitted. Such landscape plan shall be approved prior to issuance of any
building permits.
31. Prior to submittal into building plancheck, submit revised plans indicating a
new unit mix, adding a new smaller 1- bedroom floor plan option no smaller
than 614 s.f. and the number of smaller units not to exceed nine.
32. Prior to submittal into building plancheck provide revised plans reflecting the
following changes as reflected in the applicant's letter dated February 24,
2012:
a. Maximum unit count of 278.
b. Minimum 136 (49 %) total units containing two and three bedrooms.
C. Average overall project unit size of 915 s.f.
d. Minimum 255 s.f. per unit of open space.
e. Maximum 257 tandem parking stalls (42 %).
f. Addition of the following amenities: yoga veranda, business center,
game lounge and pet -park.
g. Minimum 1,900 s.f. fitness center.
h. Minimum 1,625 s.f. pool.
i. Minimum 17,647 s.f. rooftop lounge amenity area.
ri C.-T,
VTTM NO. 2012-01
MARCH 5, 2012
PAGE 6 OF 7
33. Project and amenities shall be consistent in quality, detail and finishes with
all graphics, exhibits and other representations submitted by the applicant.
B. Police Department
The elevator lobby shall be redesigned by removing the elevator alcove and
providing a secure lobby enclosed with fire rated glass partitions.
2. A security plan must be submitted to the Police Department at the plan
check stage for approval. The plan must cover all aspects of the projects
security including security personnel, surveillance /camera equipment (on
each floor of parking structure, stairwells, and elevator lobby /cab) with
internet viewing capability for the tenants of the project, and access control
hardware. The project will be required to have a minimum of two state
licensed uniformed security personnel. One security officer will be required
for the residential buildings and one for the parking garage. Entrances /exits
to the parking structure must be equipped with rolling overhead gates.
3. A security plan must be submitted to the Police Department at the plan
check stage for approval. The plan must cover all aspects of the projects
security including security personnel, surveillance /camera equipment (on
each floor of parking structure, stairwells, and elevator lobby /cab) with
internet viewing capability for the tenants of the project, and access control
hardware. The project will be required to have a minimum of two state
licensed uniformed security personnel. One security officer will be required
for the residential buildings and one for the parking garage. Entrances /exits
to the parking structure must be equipped with rolling overhead gates.
Redesign Elevator lobby — Remove elevator alcove and provide a secure
lobby enclosed with fire rated glass partitions. A minimum 12 -inch
shatterproof convex mirror shall be installed at each stair landing. All doors
leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch
fire rated window. The last flight of stairs shall be fully enclosed at its base.
Duress alarms allowing voice communication with security personnel shall
be placed in strategic locations, approved by the Police Department,
throughout the parking garage. The elevator /stairwells serving the parking
structure of the project shall be equipped with card readers at the garage
levels to restrict unauthorized access into the residential areas. The elevator
lobby shall be designed and constructed of material that allows maximum
visibility of the interior of the lobby from the parking decks. Glazing material
will be used to its maximum extent. Alternate means and methods can be
proposed that mitigate the concerns specified above with Police Department
approval.
7 %X-�s4
VTTM NO. 2012 -01
MARCH 5, 2012
PAGE 7OF7
4. The City of Santa Ana parking structure design standards shall be followed
in its entirety.
5. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair
landing. All doors leading into stairwells shall be equipped with a minimum
5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully
enclosed at its base .
6. The City of Santa Ana parking structure design standards shall be followed
in its entirety. Duress alarms allowing voice communication with security
personnel shall be placed in strategic locations, approved by the Police
Department, throughout the parking garage.
7. All project walkways shall be illuminated to a minimum maintained 1
footcandle of light.
8. The elevator /stairwells serving the parking structure of the project shall be
equipped with card readers at the garage levels to restrict unauthorized
access into the residential areas. The elevator lobby shall be designed and
constructed of material that allows maximum visibility of the interior of the
lobby from the parking decks. Glazing material will be used to its maximum
extent.
9. A repeater may be required for the project to insure adequate Police and
Fire Communications from within the structures.
7%X-'t T85
UWAl oo
Conditions for Approval for Site Plan Review No. 2012 -01
Site Plan Review No. 2012 -01 is approved subject to compliance, to the reasonable
satisfaction of the Planning Manager, with all applicable sections of the Santa Ana
Municipal Code, the California Administrative Code, the California Building Standards
Code and all other applicable regulations.
The applicant must comply in full with each and every condition listed below rip or to
exercising the rights conferred by this site plan review approval.
The applicant must remain in compliance with all conditions listed below throughout the life
of the site plan review approval. Failure to comply with each and every condition may
result in the revocation of the site plan review approval.
A. Planning Division
1. All proposed improvements must conform to the Site Plan Review approval
of DP No. 2011 -11 and the staff report exhibits.
2. Any amendment to this site plan must be submitted to the Planning Division
for review. At that time, staff will determine if administrative relief is available
or the variance must be amended.
3. Landscaping, once installed, shall be maintained per the approved
landscape plan. After project occupancy, landscaping is to be maintained to
include the minimum level of plant materials installed at the time of
occupancy and per the approved plan.
4. A Parking Management Plan documenting how the tandem parking stalls
along with other parking operation will function must be submitted and
approved prior to submittal into building plan check. The project shall
incorporate on -site professional property management for the residential
component.
5. Covenants, Conditions and Restrictions (CC &Rs) shall be provided for the
project. At a minimum, the CC &Rs shall include provisions pertaining to
owner occupancy, restrictions on home -based businesses, the prohibition of
storage on balconies, and a restriction on truck delivery hours to non -peak
periods shall be submitted prior to building plan check.
6. Prior to submittal into building plan check, detailed elevations shall be
submitted to include exterior finishes, materials, and colors subject to
approval of the Planning Division. Such plans shall include revised interior
elevations that use the exterior finishes and materials in the same quantity,
subject to the approval of the Planning Division.
Exhibit "B"
75A -187
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 2OF7
7. All parking for the project shall be made available free of charge. Two
parking spaces per dwelling unit shall be provided as a part of the deed for
each dwelling unit.
8. A Public Art Plan which proposes a specific work(s) of art for a specific
location(s) shall be submitted to the Planning Commission for review and
approval. All public art approved by the Planning Commission shall be
completely installed prior to the issuance of a certificate of occupancy for the
project.
9. A detailed landscape plan must be reviewed and approved prior to issuance
of any building permits. In addition to the landscaping palette, the plan shall
include details on the hardscape design, lighting concepts and outdoor
furniture. At a minimum, the project shall incorporate the amount and size of
landscaping as shown on the preliminary landscape plan. In addition, the
plan shall specify the incorporation of the `temporary landscape area' as a
permanent landscape feature of the project. The exact specifications for
these items are subject to the review and approval of the Planning Division.
10. After project occupancy, landscaping is to be maintained to include the
minimum level of plant materials installed at the time of occupancy as
required by the approved plans.
11. A detailed amenity deck plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include details on the
hardscape design, lighting concepts and outdoor furniture for the amenity
deck as well as an installation plan. The exact specifications for these items
are subject to the review and approval of the Planning Commission. The
amenity deck shall be maintained in the same condition as installed at the
time of occupancy.
12. A detailed water feature plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include a minimum of one
water feature within each public plaza, interior courtyard and roof top deck
and include elevations, hardscape design, lighting concepts and an
installation plan. The exact specifications for these items are subject to
review and approval of the Planning Division. The water feature(s) shall be
maintained in the same condition as installed at the time of occupancy.
Exhibit "B"
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 3OF7
13. At a minimum, the following items must be included as exterior amenities for
the development: bike racks, enhanced paving on the walkways, an outdoor
fireplace, barbeque and a pool on the amenity deck. The exact
specifications for these items are subject to the review and approval of the
Planning Division.
14. An interior building amenity plan of the Recreation Room must be reviewed
and approved prior to issuance of any building permits. The plan shall
include details on the various finishes and equipment to be provided in these
rooms. The exact specifications for these items are subject to the review
and approval of the Planning Division.
15. The following items must be included as interior amenities within the
common areas: granite counter tops, hardwood flooring or equivalent, and
gas fireplaces. The exact specifications for these items are subject to the
review and approval of the Planning Division.
16. The following items must be included as interior amenities within each unit:
granite counter tops or equivalent, hardwood flooring or equivalent, General
Electric Monogram appliances or equivalent, tiled bathroom and shower
walls, stain grade hard wood cabinets and individual laundry hook -ups. The
exact specifications for these items are subject to the review and approval of
the Planning Division.
17. An elevator lobby plan of each lobby must be reviewed and approved prior
to issuance of any building permits. The plan shall include details on the
finishes and flooring to be provided. The exact specifications for these items
are subject to the review and approval of the Planning Division.
18. Pedestrian walkways shall be provided through the project. The amenities
to be provided along this pathway shall include decorative concrete and
paving, accent lighting, and landscape planters. The materials and design
of the walkway is subject to the review and approval of the Planning
Division.
19. A Resident Storage Plan shall be provided for the project. Storage shall be
available at no cost to the residents.
20. Cast iron drain pipes shall be provided for the project.
21. Smart wiring, including cable television and high -speed cable for computers,
shall be provided for each unit and within the project's common areas.
Exhibit "B"
-07•,
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 4 OF 7
22. Signage to direct customers and guests to the adjacent parking structure
shall be provided. A directional sign plan needs to be submitted and
approved by the Planning Division prior to issuance of a certificate of
occupancy.
23. Construction workers for the project shall be prohibited from parking in the
adjacent neighborhoods.
24. Prior to issuance of building permits, a Waste Management Plan shall be
submitted to the Planning Division for approval. The plans shall include
information on items such as pick -up, delivery, and types of bins required.
The plan shall fully address operational as well as daily management
functions and responsibilities.
25. Prior to occupancy of any units, a rental housing execution plan must be
submitted to the Planning Division for review and approval. At a minimum,
the plan shall identify the location of employee and visitor parking, the
location of the rental office, hours of operation for the rental office, and
signage affiliated with the Rental Housing Operational Plan. In addition, the
rental plan must clearly note that the parking and project amenities must be
provided free of charge to the residence.
26. Prior to submittal into building plan check, the design for the courtyard gates
shall be submitted to the Planning Division for approval. The fences /gates
shall be decorative and ornamental in nature as they are the entries to the
interior courtyards.
27. The following best management practices (BMPs) need to be incorporated
into the project construction and operation to minimize green house gas
impacts:
a. Install energy efficient lighting, appliances, heating, and cooling
systems.
b. Install efficient lighting for street and other outdoor lighting.
C. Reduce unnecessary outdoor lighting.
d. Provide education on energy efficiency to residents and /or tenants.
e. Install water - efficient irrigations systems and devices.
f. Design buildings to be water - efficient. Install water - efficient fixtures
and appliances.
g. Provide education about water conservation.
1:M1117fili:11
75A -190
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 5OF7
h. Provide easy and convenient recycling opportunities for residents and
tenants.
i. Provide education on recycling waste.
28. In accordance with California Business and Professions Code section
11010(b)(13), the Final Tract Map and the Deed Disclosure Notice for
residential property shall include the following language:
"NOTICE OF AIRPORT IN VICINITY
This property is presently located in the vicinity of an airport, within
what is known as an airport influence area. For that reason, the
property may be subject to some of the annoyances or
inconveniences associated with proximity to airport operations (for
example: noise, vibration, or odors). Individual sensitivities to those
annoyances can vary from person to person. You may wish to
consider what airport annoyances, if any, are associated with the
property before you complete your purchase and determine whether
they are acceptable to you."
29. Designated outdoor common or recreational areas shall provide outdoor
signage informing the public of the presence of operating aircraft.
30. Prior to issuance of any building permit, a storage plan shall be submitted
and approved indicating storage areas measuring a minimum of 256 cubic
feet per residential unit within the project's garage and assigned to each unit
at no additional cost.
31. Prior to submittal into Building Plan Check, a landscape plan shall be
submitted. Such landscape plan shall be approved prior to issuance of any
building permits.
32. Prior to submittal into building plancheck, submit revised plans indicating a
new unit mix, adding a new smaller 1- bedroom floor plan option no smaller
than 614 s.f. and the number of smaller units not to exceed nine.
33. Prior to submittal into building plancheck provide revised plans reflecting the
following changes as reflected in the applicant's letter dated February 24,
2012:
a. Maximum unit count of 278.
b. Minimum 136 (49 %) total units containing two and three bedrooms.
Exhibit "B"
75A -191
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 6OF7
C. Average overall project unit size of 915 s.f.
d. Minimum 255 s.f. per unit of open space.
e. Maximum 257 tandem parking stalls (42 %).
f. Addition of the following amenities: yoga veranda, business center,
game lounge and pet -park.
g. Minimum 1,900 s.f. fitness center.
h. Minimum 1,625 s.f. pool.
i. Minimum 17,647 s.f. rooftop lounge amenity area.
34. Project and amenities shall be consistent in quality, detail and finishes with
all graphics, exhibits and other representations submitted by the applicant.
B. Police Department
The elevator lobby shall be redesigned by removing the elevator alcove and
providing a secure lobby enclosed with fire rated glass partitions.
2. A security plan must be submitted to the Police Department at the plan
check stage for approval. The plan must cover all aspects of the projects
security including security personnel, surveillance /camera equipment (on
each floor of parking structure, stairwells, and elevator lobby /cab) with
internet viewing capability for the tenants of the project, and access control
hardware. The project will be required to have a minimum of two state
licensed uniformed security personnel. One security officer will be required
for the residential buildings and one for the parking garage. Entrances /exits
to the parking structure must be equipped with rolling overhead gates.
3. A security plan must be submitted to the Police Department at the plan
check stage for approval. The plan must cover all aspects of the projects
security including security personnel, surveillance /camera equipment (on
each floor of parking structure, stairwells, and elevator lobby /cab) with
internet viewing capability for the tenants of the project, and access control
hardware. The project will be required to have a minimum of two state
licensed uniformed security personnel. One security officer will be required
for the residential buildings and one for the parking garage. Entrances /exits
to the parking structure must be equipped with rolling overhead gates.
Redesign Elevator lobby — Remove elevator alcove and provide a secure
lobby enclosed with fire rated glass partitions. A minimum 12 -inch
shatterproof convex mirror shall be installed at each stair landing. All doors
leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch
fire rated window. The last flight of stairs shall be fully enclosed at its base.
Duress alarms allowing voice communication with security personnel shall
Exhibit "B"
75A -192
SPR NO. 2012 -01
MARCH 5, 2012
PAGE 7OF7
be placed in strategic locations, approved by the Police Department,
throughout the parking garage. The elevator /stairwells serving the parking
structure of the project shall be equipped with card readers at the garage
levels to restrict unauthorized access into the residential areas. The elevator
lobby shall be designed and constructed of material that allows maximum
visibility of the interior of the lobby from the parking decks. Glazing material
will be used to its maximum extent. Alternate means and methods can be
proposed that mitigate the concerns specified above with Police Department
approval.
4. The City of Santa Ana parking structure design standards shall be followed
in its entirety.
5. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair
landing. All doors leading into stairwells shall be equipped with a minimum
5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully
enclosed at its base .
6. The City of Santa Ana parking structure design standards shall be followed
in its entirety. Duress alarms allowing voice communication with security
personnel shall be placed in strategic locations, approved by the Police
Department, throughout the parking garage.
7. All project walkways shall be illuminated to a minimum maintained 1
footcandle of light.
8. The elevator /stairwells serving the parking structure of the project shall be
equipped with card readers at the garage levels to restrict unauthorized
access into the residential areas. The elevator lobby shall be designed and
constructed of material that allows maximum visibility of the interior of the
lobby from the parking decks. Glazing material will be used to its maximum
extent.
9. A repeater may be required for the project to insure adequate Police and
Fire Communications from within the structures.
Exhibit "B"
75A -193
75A -194
Mitre - Ramirez, Norma
Subject: FW: The Met Project- Notice of Public Hearing March 5, 2012
From: Luckham, Elise [mai Ito: eluckham @firstam.com]
Sent: Wednesday, February 29, 2012 3:31 PM
To: Richard Barretto; Higgins, Taig; Huizar, Maria; Robert Bisno
Cc: Miller, Steven K.
Subject: The Met Project- Notice of Public Hearing March 5, 2012
We are in receipt of the Notice of Public Hearing for The Met project to be heard before the City Council on Monday,
March 5, 2012. Please note the following concern that First American has with the project:
After reviewing the Appendix E Traffic Impact Analysis report dated November 9, 2011 and prepared by Linscott Law &
Greenspan Engineers we note that the intersection we are most concerned about increased traffic into is the
intersection of First American Way and First American Way South. Although 16 intersections were considered in the
study, this intersection, immediately adjacent to subject property was not evaluated. We are concerned about
increased congestion and safety risks with an additional 300 vehicles passing through the intersection, particularly
during the highest traffic hours at the start and end of the business day and around the lunchtime hours. The current
egress for the subject property routes ALL vehicles to this intersection for, what will in most cases, be a u -turn. Each
direction of the 3 -way stop has multiple lanes so it will not be evident that a left turn is a u -turn and there is increased
risk of a collision in our opinion.
While the project itself is not problematic to the neighboring businesses, the increased traffic at the intersection
mentioned is of great concern and we believe requires additional analysis.
Please make the Council aware of our concerns so that they can be addressed accordingly.
Thank you.
Elise Luckham
VP, Director Corporate Real Estate
First American
First American
1 First American Way, Santa Ana, CA 92707
Direct: 714 - 250 -3111
Fax: 714 - 824 -5868
Email: eluckhamCalfirstam.com
A member of the First American Financial Corporation
family of companies I NYSE: FAF
This message may contain confidential or proprietary information intended only for the use of the
addressee(s) named above or may contain information that is legally privileged. If you are
not the intended addressee, or the person responsible for delivering it to the intended addressee,
you are hereby notified that reading, disseminating, distributing or copying this message is strictly
prohibited. If you have received this message by mistake, please immediately notify us by
75A -195
75A -196