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HomeMy WebLinkAbout75A - PH - 200 EAST FIRST AMERICAN WAYRYAN OGULNICK VINEYARD DEVELOPMENT CORPORATION lip REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MARCH 5, 2012 TITLE: APPROVED ? As Recommended PUBLIC HEARING -AMENDMENT TO DEVELOPMENT ? As Amended I Reading 1 s' AGREEMENT NO. 2004-03, ZONING ORDINANCE El Ordinance on AMENDMENT 2012-01, VESTING TENTATIVE TRACT El El ordinance on Reading Implementing Re Resolution MAP NO. 2012-01 (COUNTY MAP NO. 17437 AND ? Set Public Hearing For SITE PLAN REVIEW NO. 2012-01 FOR A NEW MULTI- FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST FIRST AMERICAN WAY CONTINUED TO "j"~ ^ FILE NUMBER CITY MANAGER RECOMMENDED ACTION For the January 23, 2012 meeting staff recommended that the Planning Commission: 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. 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). 75A-1 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 March 5, 2012 Page 2 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: 1. 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." 75A-2 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 March 5, 2012 Page 3 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 B): • 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. 75A-3 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 March 5, 2012 Page 4 • 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. 75A-4 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 March 5, 2012 Page 5 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 M. Trevino cutive 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 i 4! PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY FEBRUARY 13, 2012 APPROVED TITLE: ? As Recommended PUBLIC HEARING - AMENDMENT TO DEVELOPMENT ? As Amended AGREEMENT NO. 2004-03, ZONING ORDINANCE ? Set Public Hearing For AMENDMENT 2012-01, VESTING TENTATIVE TRACT DENIED MAP NO. 2012-01 (COUNTY MAP NO. 17437) AND SITE ? Applicanrs Request PLAN REVIEW NO. 2012-01 FOR A NEW MULTI- ? Staff Recommendation FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST FIRST AMERICAN WAY CONTINUED TO Prepared by Sergio Klotz Executive Director Planning Manager RECOMMENDED ACTION 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. 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 75A-7 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 2 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). Y' + r a r„ it 't I f MacArthur Place District Center (SD 43) Proiect 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 available 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. 75A-8 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 3 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 7 2% 912 mezzanine 2 bedroom 101 36% 1,004-1,163 3 bedroom 5 2% 1,383 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 Parkin Apartment unit parking 2.0 spaces/unit 568 spaces Guest parkin 0.2 spaces/unit 57 spaces Additional guest parking 7 spaces Total 2.2 spaces/unit 632 spaces Proposed Parkin Stall Type Standard single-car stall 288 spaces (46% Tandem car stall 344 spaces 54% 75A-9 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 4 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 75A-10 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 5 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. Project 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. 75A-11 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 6 Table 3 - Parking Standards Comparison SD 43 Standards The Met Difference 642 spaces 625 spaces + 7 additional guest 632 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 MacArthur Place Multi-Famil Parkin Ratio Comparison 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 Place Tandem Stalls CompArison 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 75A-12 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 7 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 Geneva Nexus Lyon The Met Pinnacle 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. Unit Size 1,126 s . ft. 1,413 sq. ft. 1,413 s q. ft. 902 sq. ft. 885 s q. 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. 75A-13 ZOA No. 2012-01, DA No. 2004-03, VTTM No. 2012-01, and SPR No. 2012-01 February 13, 2012 Page 8 Table 6 - Average Size Analysis for 1-Bedroom Units _ The Met 1-Bedroom Avera e Square Feet Unit Model No. of Units S q. Ft. Total S q. Ft. Avg. S q. Ft. 1A 105 744 78,120 744 1 B 56 756 42,336 756 1C 10 804 8,040 804 2F 7 912 6,384 912 Total 178 3,216 134,880 758 Average 1-Bedroom Unit Size = 758 s q. 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'Open Space Comparison SD 43 (Pinnacle Geneva Nexus Towers Lyon The Met Apts.) Commons 250 s q. ft./unit 282 s q. ft./unit 250 s . ft./unit 200 s q. ft./unit 173 s q. 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 T Lyon The Met 273 units 304 units 284 units Pool 2,100 s q. ft. 1,344 s q. ft. 756 s q. ft. Club Room/Fitness Facility 6,830 sq. ft. 6,750 s q. ft. 3,050 s q. ft. Courtyards 18,900 s q. ft. 19,140 s q. ft. 22,100 s q. ft. Roof Deck n/a 37,900 sq. ft. in one deck 12,550 s q. 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 1. 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. Sergio I tz, P Princip Ian r I SK:jm skVeportslThe Me1.021312,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 Ml ii M1 a MI SD-63 i I/5D-12 Mi I C2 Mi ml s 3 ii 1 f 1 { (S f { ! OYEA RD. - 1 OS 3 11 11 It It II ~ f t--- F ii- it 1 :IcR M1 M1 Ml Ml M2 n 1{=",1 RI II II 4 = __t~ __!1 11 P, Its 1, ' .-i In F f ~ I wnn w. Rl w wx, Rl I Ml t p " CR M1 MI (Rlµ R1 ~ ¢wax Rl ca"" p SD-43 SD-43 R1 _ YJ1 T RI RI RI x SD 43 RC4 5I-43 s \ E R1 R, CS 51)-43 PROJECUTE g4 MAC AR HUA BL. ~/~i aw xwnn } CS i \ SO-76 ~1( Al-PROF. u ca SD-76 ~ 1 RI Rt. 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[ ' ' s 1 1F i - E w - 3~tlld ~IfINil~eW - _ _ O _ EXHIBIT 6 75A-61e 1 of 4 o - !-ets Ixx ~ii!!!S!! ~M11-11-111m. lilt Fiiif if ~f tl!!i!!>>!!!!<< !!!:!I!!dl i!I Itf fll~~ l~+1~~! fFlii ` fftl _i W ~ ~ ~t It If i W ~ ~ ~ ~11i4i'rl~ ~,litlF~sa it ll4t ~i31i~11iilF I!I ~ gs a t~ 000 000 o € 3 ~ s ~ k 5 Y ~ r ! ~ r. nnr+rtr..• rt H ~ VJ r U r n Y ~ LJ ~ Q O W E r ° UJ Page 2 of 4 75A-62 C) M 4 J e J ~ x 3 L_ a c ° x I \ 1 Q nn~xan ee-=- ~ u_99 J 3 m p U ~ u j xS F o tw_ I' f - I. I. I - I I Y I I I J ~ Q z W = /I k 1 Q ~ ?d , N O Cl) _ = LLL W~~ I. Page 3of4 75A-63 o 0 sk~ Hung~~~b~ff~~~ ~ b ~ .r { J n V i o u _ I I I I d i i a ~ \ _ .y 7 7 c ~ j c _ Q ~ U a ~ Ito -A. U W 2 6 I Page 4 of 4 75A-64 RECORDING REQUES'T'ED 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 FgES 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 IR STATED AND NO AMENDED DEVELOP +'N`t` AGREEMENT BE, TWEEN THE CITY•OF SANTA ANA AND GENEVA VDC AT THE MITT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY This 12-HS-T-A ED AND 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 PROPBRUES, INC., A CAL aP'~'T~. I AI 'fI9A~ax VbC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (eelleetively referred to herein as' "Owner" or "Property Owner") on the othet' ]land, 1. RECITALS. The Amended Agreement is entered into with reference to the following facts: 1.1 Purpose. (1) The put-pose 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 (hereaftw 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"). Oil April 4, 2005, the City entered into a Development Agreement (the "2005 Agreement") 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 9wxe# Coastal Ritll, who has applied to the City to amend SD-43 and IwNe 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 A reement, and any offs 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 seefiex Section 2.4 'of this Agreement, Owner has proposed eenstt~leting-at developing the northeast corner of MacArthur Boulevard and Imperial Promenade ~*ely 278 pact Go dens-iip eet eon ' tin e-prejest-and an eight-stoq b lding;together with appfoximfftely 13,000 ° o feet of ancillary 'a~81t-ti more than 3 000 square feet may , be-devoted to `fast food-er"lake-out"-restatimtits with a 5-st9ry, mutti-family apartment 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 1 75A-66 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 this 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-GwnerCoastal Rim's application for tMs 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 JanuaLy 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 Agreement. The Planning Commission recommended to the Council that it execute this Agreement. On [insert datel.,_the Council, after providing notice as required by law duty 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 purposes is are consistent with Government Code Sections 65864 through 65869.5, and with the objectives policies, general land uses, and pro rg, ani 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 the orderly development of the Property, assure progressive installation of necessa!)y improvements provide public services appropriate to each stage of development of the Property, ensure attainment of the maximum effective utilization of resources within the City at the least cost to its citizens expand the availability of high-quality, affordable housing stock to the Cit~'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. Onil 18, 2803 finsert date] , the Council adopted Ordinance No. NS- approving this Amendcd 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 A- es, ko,, a Ealifernia Gerporation,-and Ce#uev'ttGOWAnefla- 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, anti4nc-hides Coastal Rim WepeMwi-j Ino-'-s suc^z~s - interest, 23 "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.sv02.215 , Tentative Tract Map No. 2804-03 (County Map N6.46-5-56 - Conditional Use Permit 3 75A-68 2904 $2 , Variance No. 'U0444 Zoning Ordinance Amendment No. 2981-95 (amending SD-43), and Site Plan Review No, 2884-06 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 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 Ail Plan 2.5 D Cooperative Agreement for Off-Site Improvements 5.1.1 E Remaining Offsite Mitigation Measures 53.2 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 (lie 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" ;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 pant, 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 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. 4 75A-69 Nor shal3 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. 43.1 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 tithe 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 tamecties-previded4nSeetis t4nrAude,-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 except as mayJbe provided iii Seefien (5) of No Agmer t. 5 75A-70 4.6 Hold Harmless. Property Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives ("City Parties", collectively) hat-mless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injuty, 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, etnployecs, 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 Propei~iy Owner's negligent acts, omissions o?rwillful misconduct in the performance of this Agreement. This hold harmless went 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 parag oph 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 tine Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for tine 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 willflnl 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 RO. Box 1988 Santa Ana, California 92702 6 75A-71 telefacsimile (714) 647-6954 and, City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P,O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: Ceastal4 P+op"es;-Ms: -139-East-A ltonAvenue SarA° Am, r.,lif6Miff-92M Attem epee Me4a tel"similei (-714) 708 G&B VDC at the Met, LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention: RHO ug 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-72 5.1.1 Cooperative Agreement for Off Site Improvements. The Owne Coastal Rim and the City, together with other parties, have on oumently executed a Cooperative Agreement for Off Site Improvements concurrently with the Original A reement, a trite 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 atry 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 arc as set forth in Exhibit E to this Agreement. All Rinds 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 Camarillo (1984) 37 CaUd 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 Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations as may from time to time be enacted or amended hereafter, Specifically, but without limitation on the foregoing, such non-conflicting laws and regulations include the following: .4, . (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; 8 75A-73 (3) Laws, including zoning code provisions, which regulate the maruter 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 conntnunity facilities district, assessment district, or other similar Rending mechanism, to provide fiords 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 Ail 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 arr 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, fuel 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 patty 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. 5.4.2. -lbimit-en-Fast-Food-turd-T-aIie Out its. A4 ne time shall the 9wner permitinerathan 3;8t3A spaes in !he Projea to be deveted to foe d»-an ! ke-ot# 't r@StHum% ts. For .,'poses e f !W Agreement t t .all vs ! 1, , Fir r" w 9 75A-74 deemed to be a "fast -food" r Now a-ut.1) Mistaumnt if it previde, sit-dova) dining avew&wW emehfsive t b16 setylee-fer erdering-atl"eliveringameals tid-beverages, an"ke-eat sef Yiee ansillary-to 6 oh services.. 5.5 Futux,e Dlscretlonary Apps-ovals. 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 terin 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, or 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 Fobruary 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 patagwo 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 10 75A-75 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 the triggering event. In the event that Owner fails to meet either of the triggering events set forth in seetie>3 Sect' 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 Tr•iggelin Event (E.g., 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 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 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 fiu•ther 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 apply to all units developed on the existing three and one-tenth (3.1) gross acres This fee shall be used by the City for planning (including but not lhnited 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 percent (that 11 75A-76 bei-ng45%) 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 inclusiona.ry 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 Parlc Development Fee. The Owner shall pay an in-lieu park development fee amount equivalent to the Park Dedication requirement te€e}eneed its-the-cite plan-review-letter -A Si gltt Review No. 2 N46. 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 Develepe} 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 issuasiee of the first Wilding penni 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. ~ lay.,, 11 idr t' 1 and live work 't '~9 - the - @Xt@n . ~cci~crcr.c permit*d r b z-ccxri°c~acm i shalt -renia}n~xer eeetrpiecl anall not allow rental of t y„ a (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 12 75A-77 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) 'T'erms 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., t!® tmt:~errnit#ed by4aw) 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 seg., Regaining to residential conversion projects, prior to recording of the Final Map. 5.9 Responsibility #for Costs of Wor1c 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 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 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. 5,1312 Conditions of Discretionary Approvals, The requirements imposed as conditions of any discretionary approval received though 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 Wivith Governmental Requirements. Subiect to and as otherwise provided by the terms of Section 5.1 above Owner shall carry out the design, 13 75A-78 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 etseq. ("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 terns 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; 14 75A-79 i 3 Failure to comply with Governmental { } Requirements regulation s; i (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 allege( 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) clay 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 perTormance 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 $reach 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, 15 75A-80 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 RICLEASES 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 tlue 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. QtY 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 Aggement, 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 fowl 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 16 75A-81 performance of this Agreement or its revocation or termination, air 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 Undertalcing. 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 fill 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 Larv. In the event that state or federal laws or regulations enacted after this Agreement has 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 Ci Council. Public notice of such hearing shall be given pursuant to Goverm-acnt 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 instr?mient or the application of such term provision, condition 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 A rg eement shall be valid and enforceable to the fullest extent penpitted 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 instivrnent. 9;1912 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. i 18 75A-83 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Property Owner. Dated this day of , 20-. THE CITY OF SANTA ANA By PAUL M. WAL`I'ERS Interim City Manager Approved as to Fonn: By JOSEPH A. S'IRAKA Interim City Attorney 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 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-85 EXHIBIT "A" Property Legal Descril)tion 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-989001 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 QFMCE 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 CAMEORNIA. 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 CEWI'A1N STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT RECORDED APRIL 18, 2005, AS INSTRUMENT NO. 2005000291720 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA; 75A-86 EXHIBIT `B" Property Site Plan To be inserted 75A-87 EXHIBIT "C" Public Ail Plan 1. Public ail 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 art approved by the Planning Commission in the Public Ail Plan shall be completely installed as provided in pawgmph 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. 3. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. 4. No art piece provided pursuant to the public art requirement shall include advertising of any type, including but not limited to products, services or businesses. 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 Ail 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-88 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. 75A-89 EXHIBIT LSD" Cooperative Agreement for Off-Site Improvements 75A-90 COOPERATIVE AGREEMENT FOR OPF-SITE IMPROVEMENTS THIS Agreement is entered into this day of , 2005, by and between the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public benefit and federal 501(c)(3) corporation ("Sandpointe"), (he N13XUS DEVELOPMENT CORPORATION/CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to herein as'Nexus" COASTAL RIM PROPERTIES, INC., a California corporation Geneva Commons" the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City") WITNBSSI3TH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23-residentiet 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 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. Sandpointe is a non-profit corporation that serves as a conduit between the Sandpointe Neighborhood ("Neighborhood") and outside community and political interests. Sandpointe Neighborhood is a residential neighborhood of single family and some multi-family homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of approximately 800 residences. 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 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. la. Sandpointe has identified certain physical Improvements needed In the area of the Neighborhood that arts 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 midlor construction of those improvements to the Sandpointe neighborhood In addition to and to EXHIBIT D Ordinance No, NS-2660 I Page 30 of 61 75A-91 supplement the mitigation measures and conditions of approval imposed by the City of their respective developments. Those improvements are set forth in Exhibit A, attached hereto and made a part hereof by this reference ("Improvements'). F. 'The Agency is willing to assist in the funding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to Rind specified improvements that would reduce blight and benefit the Project Area. 0, The City's partioipation in this Agreement is limited to coordination of funding and/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to construct some of the improvements, and pay for the construction of others, as more fully set forth below ("Nexus Improvements'). I. Geneva Commons has agreed to pay for a portion of the Nexus Improvements. NOW, THER13FORE, the parties hereto do mutually agree as follows; I. SCOPE OF WORK A. Nexus shall construct and/or fund the improvements identified as "Nexus Improvements" in Exhibit A hereto according to the schedule set forth in fthibit B to this Agreement, attached hereto and incorporated herein by this reference. Nexus shall be entitled to dull use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements. B. In consideration for Nexus' agreement to oonstruct and/or fund the Nexus Improvement, Genova 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 (256/o) pursuant to those numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus Improvcmcnts, 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 Lscrow 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 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-2660 Page 31 of 51 75A-92 2. COMPENSATION AND METHOD ON PAYMENT A. Nexus shall, within sixty (60) days ofoxccution ofthis Agreement, open an escrow account at First Amerloan 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 Kurds 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 slid Genova 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 submii its dispute in writing, together with any evidence upon which ht relies to the Executive Director of the City's Public Works Agency and tho other party . Within fifteen (15) days of its receipt of said notice, the non-objecting party shall then have fifteen (15) days to submit any response it has to the City and the objecting party. The Executive Director of the City's Public Works Agency or designea shall then, within thirty (30) days of receipt of the response, if any, or the expiration of said deadline, inform both Genova 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 1.131, 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 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 Genova Commons, provided no litigation or referendum petition challenging Geneva Commons has been filed and served on the City, whichever comes later. EXHIBIT D Ordinance No. N5-2680 Page 32 of 61 75A-93 E. The Agency shall pay the City its cost incurred by the City for the Publicly-Owned Improvements set forth in Exhibit A to this Agreement; provided, however that total commitment by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE MILLION DOLLARS ($5,O00,000.00). 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 solo 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 constriction 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 regularprogress meetings to coordinate the preparation of, submission to, and review of construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as frequently as is necessary to insure that the fonnal submittal of any documents to the City can receive prompt and speedy consideration, C. Any revision or correction of plans required by late City shall be deemed approved by the Agency, Geneva Commons and Sandpointe, D. Neither the City, the Agency, Sandpointe or Genova Commons shall have any ownership interest in, or any right to use, the Preliminary Site Plans or the,Final Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity. 4. APPROVAL OF NEXUS PLANS, 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 doctnnents including any proposed changes therein. The City shall approve or disapprove such plans, drawings, and related (and any proposed changes therein) within the times established in the Schedule of Performance set forth in Exhibit B hereto. Such approval shall not be unreasonably withheld. B. Any disapproval shall state in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do not conform to the Approved Plans, the approved Preliminary plans or do not conform to Exhibit A to this Agreement, or are incomplete. EXHIBIT D 4 Ordinance No. NS-2880 Page 33 of 51 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 resubmittal. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawings or related documents in a manor 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 doetunents receiving City approval shall not be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related documents comply with all Governmental Requirements. 5. COMM13NCBMBNT AND COMPLETION OF CONSTRUCTION OF NEXUS IMFROVEMBNTS a. Nexus shall construct and/or flood, utilizing the Nextts 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, oxceeds the fends in the Nexus Escrow, Nexus and Genova Commons shall be solely responsible for said costs, with each responsible for any additional cost to the same percentage as Is act forth in paragraph I.B. of this Agreement, Noxus shall complete or fund, as the case may be; the construction of the improvements in conformance with the schedule sot forth in Exhibit B to this Agreement, b. The parties acknowledge and agree that the Block Wall identified as Item No, l on Exhibit A will be constricted on the properties of dozens of individual homeowners in the Sandpointe neighborhood, none of whom aro parties to this Agreement. The parties agree to use their best efforts to obtain permission of each of those 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 reftese to agree to permit the construction and/or exterior ivy maintenance ("hold outs'), that the Block Wall will be constructed 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 and minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents harmless from any claim by any and all property owners including such hold outs arising out of the construction of the Block Wall in which Sandpointe, or its officers, directors, employees or agents are named, Nexus shall be permitted to select counsel to defend Sandpointo at the expense of Nexus. In the event ofa potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees and costs of independent counsel selected by Sandpointe for defense of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. EXHIBIT b Ordinance No. NS-2680 S Page 34 of 51 75A-95 G. 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 Publicly-Owned Improvements as set forth in Exhibit' A. If only a portion of the residential. units have been constructed within five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the Publicly-Owned Improvements, and the City's obligation to complete these Publicly-Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fluid said work from the prejeot-specific tax increment generated'by the Nexus Project; provided, however, that City and Agency shall construct item no. La. on the list of Publicly-Owned Improvements in Exhibit A to tlus Agreement regardless of the project-speciflc lax increment received by the Agency. 7. COMMENCI3MENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS a. City shall construct the Publicly-Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency slid 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 tfic Publicly-Owned Improvements, including all design, administrative and construction costs exceed $5,000,000.00, then the City shall construct only that portion of the Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's 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. I on Exhibit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a 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. 8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INR RY 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 Ordinance No. NS-2880 Page 35 of 51 75A-96 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 fzom the negligent or wrongfid acts or omissions of Nexus or Geneva Conurions or their respective employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold harmless Agency, City and their respective offloers, 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 shaft 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 flie with the City and Agency, and maintain for tha period covered by tlils 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 coverago 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 aid 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 substa fiat 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 eceupation, 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 EXHIBIT D Ordinance No. NS.2680 7 Page 30 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 at seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). 10. DEFAULTS AND REMEDIES If any party defaults In performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with thus section. The injured party shall give written notice of default to (lie 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 with the purpose of this Agreement. 12. APPLICABLE LAW This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California mid 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. PdOHTS AND REMEDIES ARE CUMULATIVE Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. EXHIBIT D R Ordlnance No. NS-2880 Page 37 of 61 75A-98 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 Genova Commons in the performance of this Agreement and shall not-extend to compensation for loss of future income, profits or assets. 15. NOTICES, DEMAND AM COMMUNICATIONS Formal notices, demands and commWeations 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 ft'om time to time designate by mail as provided in this section. City: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M-20 Santa Ana, CA 92702 Attn: Steve Harding, Executive Director Phone: (714) 667-2700 Fax: (714) 973-1461 with copy to: City Attorney 20 Civic Center Plaza, M-29 Santa Ana, California 92702 Agency: Community Development Agency City of Santa Ana 20 Civic Cantor Plaza, M-25 Santa Ana, CA 92702 Attn: Patricia C. Whitaker, Executive Director Phone: (714) 647-5360 Fax: (714) 647.6549 with copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, California 92702 EXHIBIT D Ordinance No. N3-2880 9 Page 38 of 69 75A-99 Sandpointo: Sandpointe Neighborhood Association, Inc. P.O. Box 27122 Santa Ana, California 92799 Attention: Bob Black 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 now address, If sent by mail, any notice, tender, demand, dolivery, or other commmucation shall be effective or deemed to Dave been given three (3) days after it has been deposited in the United States mail, duty 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, BXHWIT D t0 Ordinance No. NS-2880 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 takeover Nexus' obligations to construct a portion of the Noxus Improvements under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Geneva Commons twenty-five percent (25%) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and acknowledge that all references horein to Nexus shall be deemed to be references to Geneva Commons, If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointe shall meat 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-Rve 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 date ninety (90) days after the issuance of entitlements to Noxus and Geneva Commons (whichever canes later). The Commencement Date shall be tolled should a valid referendum petition be presented challenging either project, or timely litigation be filed and served challenging any of the entitlements, including approval pursuant to the California Environmental Quality Act. 18, INTEGRATION This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreement between the parties with respect to all or any the matters addressed herein. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by the appropriate authorities of the parties, 19, ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in whole, to arty 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 i t Page AQ of 61 75A-101 i . the City grants written consent to transfer the, rights, Nor shall the rights of Nexus or C3eneva 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 affect unless such written consent thereto be obtained from the City Councii. Such, transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons, Any and all approved successors and assignees of Nexus or Geneva Commons shall have all of the some rights, benefits, duties, obligations, and liabilities of Nexus or Geiteva 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 Ocnava Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNMS WHEREOF, the parties hereto have executed this Agreement the date and year first above written, I SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By ~CJI'L~ Name Its NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC, By Name Its t2 Ordinance No. NS-2eeo Paso 410 61 75A-1 02 the City grants written consent to transfer tho rights, Not shall the rights of Nexus or Genova Commons hereunder be Subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, mid 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 Counoil. 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 0enova Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement, If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee, shall be joint and several. IN WITNESS'WHERHOP, the parties hereto have executed this Agreement the date and year fast above written. SANDPOINTE NBiGHBORHOOD, ASSOCIATION, INC. By Name Its - NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC. HY Zk-, ao „iL.j.---W Name Its Ordinance No. NS-2680 12 Page 42 of 61 75A-103 A178ST: COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF SANTA ANA - By Patricia E. Healy Patricia C. Whitaker Secretary ofAgeney Executive Director APPROVED AS TO DORM: Joseph W. Fletcher Agency General Counsel EXHIBIT D Ordinance No. NS-2680 14 Page 44 of 61 75A-104 EXHIBIT A OFF-SITE IMPROVEMENTS NeXuR Imprnvpmentx 1. Block Wall a, Main Street between Murphy & Sunflower, and houso looated at 101 W. Murphy b. North side of Sunflower between Main & alley adjacent to four plexes, excluding sections ofwall at cornor of Main & Sunflower at rear of commercial building e. 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 extorior-wall maintenance easement, This payment shall be made by Nexus at the time the individual property owner executes the construction easement in favor of Nexus and permanent maintenance casement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement, Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out. e. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association, f Remove and replace 4 sections of white concrete block wall along West Alton Avenue and paint with one color selected by Association. g, Noxus 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 wail. h. Wall replacement specifications shall be established pursuant to paragraph 4 of this Agreement. L Nexus shall maintain, and replace as necessary, the climbing vines during a ninety (90) day plant establishment phaso 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 this Agreement, b. Nexus shall assist Sandpointe in obtaining/proparing necessary construction bids, documents and permits. e. Allowance will be paid by Nexus to Sandpointe for any applicable home upon recoipt of bona fide construction or material involcos. d. Allowance shall expire 12 months following tho completion of the concrete wall EXHIBIT D 15 Ordinance No. NS-2680 Page 46 of 61 75A-105 replacement improvements. e. Window specifications shall be established pursuant to paragraph 4 of this Agreement. 3. Taft Blementary Loading Zone a. Nexus shall construct all improvements necessary to effectuate Definitive Basement Agreement between Santa Ana Unified School District, Nexus and South Coast Church. b, Improvements to loading zone shall include driveway approaches, traffic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, etc. as provided for in plans included as part of Definitive Easement Agreement. 4. Pay City $200,000 for City to implement a Neighborhood Traffio Management Plan ("NTMP") to mitigate changes in traffic patterns or increased cut through traffic resulting from the Nexus and Geneva Commons Projocts in the Sandpointe Neighborhood. N`1'MP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the construction of appropriate traff3o calming devices, including but not limited to semi-diverters, diagonal diverters, and street closures. The Implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shall pay the City the Rill cost (seo Exhibit B) for the Installation of a Traffic Signal at the Intersection of MacArthur Boulevard and Birch Street. fuhlte y,nwned Tinnrnvementa I Utility Undergrounding a. Main Street MacArthur to Sunflower b. MacArthur - Main to Flower e. Sumflower - Main to blower (north side of street) EXHIBIT D Ordinance No. N$-2680 16 Page 46 of 51 75A-106 EXHIBIT A-1 List of 49 Residential Units List of 1111gible Homes fbr WindowReplac m b• Along Main and Sunflower 3fnSh 1+,n,ltyliomgt 1. 101 W. Mvryby (sides to Maan) 2, 37018. Alder (backs to Main) 1 $703 S. Alcor (hooks to Main) 4, 3709 3. Alder Rmclu to Main) S. 3713 S. Alder (beslctt to Main) 6. 3717 4. Atria (kdm to Maln) 7. 37118. Aldet (becks to Main) 0. JM S. Alder (backs to Main) 9, 3729 S. Aida (backs to Mein) 10. 3101 S. Allot (backs to Main) 11, 3105$.Alder (bukstoMain 11, 3149 S. Alder (books to Win) 13. 3113 S. Aida (becks to M04) 14. 3117 s. Afdw (bade to Maln) 15. 3121 S. Alder (backs to main) 16. 3325 S. AW (iwclw to Alder) 17. 3119 S. Alder (ltadts to Maln) 3. 39018. Alder (becks to Main) 19. 39W S. Alder (backs to Main) 20. 3909 s. Alder (blela to Main) 21. 142 W, Stet M (backs to Main and ManiMs") 29. 104 W. Stavem (backs to Mean KA Mint Market) 23. 1 t 0 W. Blwsna (bum to Maip a,d Mini Market) 24, 114 W. Slovens (barks to Sunflower and Mini arkel) 2S. I 1 i W. Memo (packs to tlunflwow) 26. 122 W. &4vou (backs to sunflower 27. 207 W. Stavafa (boats to OunnWV.u) 21. 244 W. Stevens (bade to sunn"W) 29. 214 W. Stevan (buks to Sunflower) 30, 214 W.Stevm (backs to 9un}lov.w) 31. 3926 a.l7mbor (sides to sunRouw) 37. 341 W. gtovona (basks to Sonnower) 33. 306 W. Stevan hckA o3unfawff) 34. 310 W. yens t98unnowa 33. 314 W. StsWN (bsu its to Star Row) 36. 34 S. 8tevcro (backs to BunQoww) 37. 39218. Qfmh (becks to sunlltrwa) Tfoarplem 31. 3925 S. Rots (aides to Sunflowu) 39. 401 W.SunnowRr (fiattssunnower) 40. 403 W.8unQmw (fi nbSunRowa) 41. 409 W. 3undo%w 0mu Sunflower) 42. 301 W. Sunflower (Aoma suallower) 43. 30S W. $Mlowrs (14anu Sunflower) 44. S09 W.3unffo er (Roots 8unflowee 4$. 313 W. Sunflowwr (fronts Sunflower Mein Attt•udon Cottdamrttfuma 46.3624 AS. Mein (alders to main) 47.3632 A S. Main (finnls Matn) 48.36321! S. Main (rmt; M41n) 49.3632 C S. Main (!Fonts main) 17 Ordinance No. NS-2680 Pago 47 of 61 75A-107 EXHIBIT B SCHEDULE OF NEXUS IMPROVEMENTS 1. Construction of Item No. I to Exhibit A shalt 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 Basement for review of City and Sandpointe. d. Building Permits, Construction Right-Of-Entry (in favor of Nexus), and Permanent Maintenance H+asement 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: H. Final building permit plans shall be submitted by individual Sandpointe homeowners to City no later than construction 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. Construction of Item No. 3 to Exhibit A shall conform to the following schedule: a. Nexus shall submit executed Definitive Easement Agreement to all parties no later titan one hundred eighty (180) days of the Commencement Date. If Nexus fails to meet this deadline, which may be extended in writing by Nexus and Sandpointe, then Nexus shall deposit $11 million from the Nexus Escrow into a separate escrow with terms providing for its withdrawal by Sandpointe, i0ieh•are mutually agreeable to all parties, for use by Sandpointe on other projects to benefit the Sandpointe neighborhood, b. Nexus shall complete this item not later than eighteen (18) months from the i EXHIBIT D Ordinance No. NS-2880 1 R Page 48 of 51 75A-108 Commencement Date. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final map for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Council. 5. Construction of Item No. 5 to Exhibit A shall confonn to the following schedule: a. The City shall provide Noxus 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 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 snap for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupancy for the Nexus Project, Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and the City Manager or designee. BXHIHIT D t 9 Ordinance No. NS-2880 Page 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 later than June 2005, 2, City shall complete item no. l.b. on Exhibit A of Publicly-Owned Lnprovemonts 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. Le. on Exhibit A of Publicly-Owned Improvements not later than five (5) yeah after the Agency provides City with the then estimated cost of the project. Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate the completion of these Publicly-Owned Improvements (which, under current law. must be designed and constructed by Southern California Edison and not the City) prior to the dates specified above, i EXHIBIT D Ordinance No. NS-2880 20 Page 50 of tit 75A-110 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' styled First American Way Dedication for 25'x 25' comer cut-off NIB comer of MacArthur & Imperial Promenade Sidewalk easement 10' along property frontage of MacArthur Blvd. Street dedication 6O' from street centerline along MacArthur Blvd. depressed curb Emergency access on MacArthur Blvd, Triple-left traffic mitigation measure, Southbound Imperial Promenade at MacArthur including sign bridge, signal modification, Blvd updated detection, and signing and striping on both streets -Pavement Rehabilitation (tninitnum 21" On Imperial Promenade and First American grind and overlayl Way along property frontage from curb to streel centerline • Installation of new public fire hydrants Along MacArthur Blvd. and First American way I i i 75A-111 9 :13S NnJ „1. ZI t0h0 ,:r:><:.1,...>,,:..::.,..•w.F- EgEg t! S t G 3; 3 g k 4 ~ ` ! 6~~ ~~sE85E&8fi8&fi9E~i i ~ ~ ' IIIIII a:T ~g 1 1 1 III I l l l l l, ~ ~ 8 ¢ ~ ~ tlIs iii I`tlllllllt'{~ e s h ILE rx cr>-,crnr g ~5 ~t1 !pp6 ~an ~ ' ~ ~ ~ 6 B~ gzs I Nt18 sg~~ ¢ x ~s y 8 h 4 9 ba$ e %I 4! gg pppp S g@ s gg e nA Sg E ~ ~YS~' a 37 M! '3}k LL. -ill. J Y cr- V_ ~uj l ` ~i ~t 1 ri) CI IIW VJ !n to _ $ 'U, U O z ! 7 i' I T / J IIr~ rA' J I Y e CL C) _LU O '1.. S~ Ir / S I`1;F,~ tl:~i f 'c~~i Jn Arrtl tit p o ig tlr• i @NCl :4 J w j ~ {i~~' I 1"~ - it j Jji f 1N7-~ r E ! ~ ;I ~e E 1 t A5 X'- 12 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 I 1 f 75A-113 M N N N N N N N N N N p N N N N N N N N w zq wM~ ofN. PNN^w •h T N cV Pi o Z ZS ~I•~ p ~i vi ~ika•NhP000M N W L w t W J IL /L IL Y. Y.ILwm- J ~ M Ni/f VI N ~ N Vf N NNNNNN NN > in o W, 0 0 M'tNti^ef N ^ ^ U m ou ~i W N Y Y Y1 w 0 8 tt 0 o Z Z O g O 4L N Ilk8 N aC d° z 0 t QQ N.E _ V t pL ®r `O H mi V IrL01 DO; ZW t e' ~a'`•~ p O N V • • • 0 8. Q H J'U N a~ O Q 0 U6J<61~e[Y 7 ¦ Q Y 3 tl 051 i :-r . r f 3:)vld vnHivvJvw 7a%fgR-%Isf 14 VINEYARDS DLVEI.OPMLNT COMPOILAT I ON 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 310.571,P 227 • V~NLYARI?SCC COh: 75A-115 I 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 basheler all units. 2.3 off stfeet narking enanes `ire reg sired for two heidroom ZniF and 2.5 off street narking spaces shall ho rei. ire'I . In addition, guest parking shall be provided as follows: 9.5 space e°nh unit up throe gh ten X10) unit 0.22 space for each unit +a evness of ten (10) units up thre gh one hu.. lred (100) i snitsr and 0.1 sn T eaGh it on eX~ss one h~ ~ndFed (100) i ~ni4c 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 lev 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. SUGh usable open spaGe shall be divided betNeen GOMmon and nri~ ippen cnano DriYate and open Ceshall G required to be provided f"r eaGh „nit at a rate of no loss than ninety (90) square foot of the total open spaGe required." 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 By: 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 12012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney By: 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 that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 3 of 3 75A-123 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 RESTATED AND NOVATED AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND COASTAL RIM PROP I Q, A CALIFORNIA CORPORATION, AND GENEVA C-OMA40 VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY This RESTATED AND 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 RA4 , INC., A CALIFORNIA CORPORATION and GENEVA CO a ONSVDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (callectivel) referred to herein as "Owner" or "Property Owner") on the other hand. 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 (hereafter 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 referred to herein as "Coastal Rim"). (2) A portion of the real property covered by the Original Agreement was subsequently acquired by Owner Coastal Rim, who hm applied to the City to amend SD-43 and lie 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 replae® amend the Original Agreement with the instant Development Agreement, rendering the Original Agreement and the 2005 Agreement, and any ef-4 amendments thereto, null and void as applied to Owner's Property (as the word "Property" is defined in °tio Section 2.3 herein). (4) As more particularly set forth in seetien Section 2.4 of this Agreement, Owner has proposed eonstr-uefiiig developing the northeast corner of MacArthur Boulevard and Imperial Promenade tely 278 unit condominium project eonsistin of an 18 residential level high rise projeet and an eight stery building, together- wi appr-eKimalely 13,000 s"afe fee! ef aneillaiy retail, of w-hieh ne more flian 3,000 8"are f~o M be devated to "fast food" er "tales e * s with a 5-story, multi-family apartment community consisting of 278 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 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 throuizlr 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 this 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 t"~erCoastal 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 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, ddulyheld a public hearing to consider the Owner's application for this Agreement. 1.6 Council Findings. The Council finds that this Agreement and its purposes 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 uncertainty in planning for 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 Property, ensure attainment of the rhaximum effective utilization of resources within the City at 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 April1-8, 200-5 [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 pa-ragmph Section 5.8 of this Agreement. 2.2 "Property Owner" or "Owner" means Coastal D epercios, Inc., a California Corporafien, and Geneva Commen 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 CoastalProperties, lHO.'srsueees~ro n interest. 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. 2002 215 , Tentative Tract Map No. 2984-05 (County Map No. 165 56 Conditional Use Permit 75A-128 2094-02 , Variance No. 20011 11 , Zoning Ordinance Amendment No. 2804-05 (amending SD-43), and Site Plan Review No. 2804-06~ 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 (10) years from the date that the Council adopts its ordinance approving this Agreement ("Effective Date" ; 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 4.3.1 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 -'ofha!1 '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 tern "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 provided . Seed,, 8.4 fihi n shat not i . lode n 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 exeep' as may-be pr-evided in Section 6.3(5) of this Agreement. 75A-1 30 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: (t) 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 negli ent acts, omissions or willful misconduct in the performance of this Agreement. This hold harmless Agreeman# 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 paragrap 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 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 75A-1 31 telefacsimile (714) 647-6954 and, City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: Coastal Rim Weperties, ine-; 1-39 East Ai n Ave g t Ana, Galifiamia 92707 telet mile: (714) 708 0872 VDC at the Met, LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention: Ryan O ug 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 asset 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 OWR Coastal Rim and the City, together with other parties, haye eerie ffexecuted 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 Rinds 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 Camarillo (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 Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non-conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; 75A-1 33 (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, fames, fael 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.^2Limit on Fast Food and Talie Out Restaurants. At no time shall the Oy,%er permit more than 3,000 sq:ua-re feet of the fetail spaeo in the Pf-ojec-4 f-A deveted to "fas food" and "take out" restatirai#s. For purposes of this Agreement, a resta-urant shall no! be 75A-134 deemed to be a c"fast -15) or ccW" out" , c.4n ff4 if it provide, s:? .a., .l:r, .,n n o.-.rl t~ ex0i'd5iVe tRble serviee for ordering and delivering meals and beverages, nnd tL 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 ivelfare 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, er 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 Proiect. 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 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 754-135 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 seetien 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 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 E.g., 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 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 from the last report by Owner. Development scheduling or date or times of performance maybe subject to revision from time to time if first mutually agreed to in writing. Stich 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 apply to all units developed on the existing three and one-tenth (3.1) gross 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 percent (91* 75A1136 being-l5%) 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 referenced ' the .t „l^„ review lett fn. Site Plan Review N 2004 0r. 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 Develop 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 issti ee of the first building permit recordin og f the Final Mme. 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) To the extent permitted by lav~-, all rvsidepAial and live work unit shall remain . . ad and shall nE4 allow renta. of the entire 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 75A-1 37 damage. (34) 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: 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., the mitte 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 Ffor 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 Property or Project, shall toll the time periods set forth in this Agreement. 5.11 City to Receive Contract Documents. Owner shall fiirnish 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 terns 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, 13 75A-138 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 sect. ("Governmental Requirements"). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the tern 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; 75k-139 (3) Failure to comply with Governmental l iremenAs 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 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 Properly 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 16 75A-141 'L 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 has 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, reaps, 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 Seyerability. If any term, provision, condition, or covenant of this Agreement, or the application thereof to any party or circumstances, shall to M 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 Ceilificate. 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. 758143 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Property Owner, Dated this - day of , 20_. THE CITY OF SANTA ANA By PAUL M. WALTERS Interim City Manager Approved as to Form: By JOSEPH A. STRAKA Interim City Attorney VDC AT THE MET, LLC, A California Limited Liability Company By 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 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 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 1. 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 art approved by the Planning Commission in the Public Art Plan shall be completely installed as provided in paragrapl3 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. 3. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. 4. No art piece provided pursuant to the public art requirement shall include advertising of any type, including but not limited to products, services or businesses. 5. All public art provided pursuant to the public art requirement shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. 6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the project site and may not be removed without the approval of the Planning Commission. 7. Expenses Not Allowed from Art Allocation i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees. iii. Landscaping around a sculpture that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. 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 IMPROVEMENTS THIS Agreement Is entered into this day of 2005, by and between the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public benefit and federal 501(c)(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 ("Geneva Commons"), the COMMUNITY' REDEVFLOPMENT AGENCY OF THE CITY OF SANTA ANA, apublie body corporate and politic (tile "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City") WITNESSETH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23-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-tuiit 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. 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. Sandpointe does not have the authority to bind any individual resident of the Sandpointe Neighborhood. D. The Agency is a community redevelopment agency, as that tern 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. R. Sandpointe has identified certain physical improvements needed In the area of the Neighborhood that am necessitated by or would in some way offset the impact of the two devetopmdnt 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-2680 I Page 80 of 51 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 11inding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to fond specified improvements that would reduce blight and benefit the Project Area. 0. The City's participation in this Agrecrricnt is limited to coordination of funding and/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"). 1. Geneva Commons has agreed to pay for a portion of the Nexus Improvements. NOW, THEREFORE, the parties hereto do mutually agree as follows; 1, SCOPE OF WORK A. Nexus shall construct and/or fluid 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 fund the Nexus Improvement, Geneva Commons agrees to contribute a sum equal to its pro-rata share of residential units between itself and Nexus (which is currently twenty-five percent (25%) pursuant to those numbers set forth In sections A and B of the Recitals above) of the cost of the Nexus 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; tho Agency and Sandpointe), then Geneva Commons pro-rata share contribution to the Nexus Escrow shall be conclusively fixed at twenty-five (25%) regardless of the actual number of residential units approved for it and Nexus. C. If the entire Nexus and Geneva Commons Projects arc constructed, Agency shall cause the construction of the improvements identified as "publicly-Owned Improvements" in Exhibit A hereto according to the schedule wt forth in Exhibit C to this Agreement, attached hereto and incorporated herein by this reference. The parties acknowledge and agree that the totat 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-2680 Page 31 of 51 75A-152 2. COMPENSATION AND METHOD OF PAYMENT A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow account at First American Title Insurance Company, 2 First American Way, Santa Ana, California, or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for deposit of fonds 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 pur,;uant to paragraph 2.13. 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 faitli to agree upon the estimated cost of the Nexus Improvements, If, at any time, either Geneva Connnons 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 roll" to the Executive Director of the City's Public Works Agency and tho other party , Within fifteen (15) days of its receipt of said notice, the non-objecting party shall then have fifleen (15) days to submit any response it has to the City and the objecting party. Tlic 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 Genova Commons. Thereafter, Nexus and Genova Commons shall deposit their respective shares of the estimated cost ofthe. Nexus 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 2.1), 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 lite 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_aftgr the issuance of entitlements to Goneva Commons, provided no litigation or referendum petition challenging Geneva Commons has been filed and served on the City, whichever comes later. EXHIBIT D Ordtnence No, NS-2680 3 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 Bxhibit 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 Publiely-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 Plants and (ii) Final Si to Plans, B. During the preparation of all drawings and plans, City staff and Nexus shall hold regular progress meetings to coordinate the preparation of, submission to, and review of . construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as frequently as is necessary to insure that the foranal 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 right i p n, any to use, the Preliminary Site Plans or the Final Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity, 4. APPROVAL OF NEXUS PLANS, 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 Bxhibit B hereto. Such approval shall not be unreasonably withheld. 13. 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 4 Ordinance No. NS-2880 Page 33 of fit 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 mannor 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 Govenunental Requirements. 5. COM MBNCJ3N4FNT AND COMPLETION OF CONSTRUCTION OF NEXUS 1WROVEMENTS a. Nexus shall construct and/or hind, utilizing the Nexus Escrow, the improvements iri 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 finds in the Nexus Escrow, Nexus and Genova 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 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, l on Exhibit A will be constructed on the properties of dozens of individual homeowners in the Sandpointe neighborhood, none of whom are parties to this Agreement, The parties agree to use their best efforts to obtain permission of each of these individual property owners to construct this Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the wall, However, it is the parties understanding and intent th6t should any property owner refuse to agree to permit the construction and/or exterior ivy maintenance ("hold outs'), that the Block Wall will be constructed regardless of day hold-outs, and that Nexus shall construct the Block Wall in such fashion as to join the Block Wall to existing wall segments owned by hold outs and minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents harmless from any claim by any and all property owners including such hold outs arising out of the construction of the Block Wall in which Sandpointe, or its officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to defend Sandpointe at the expense of Nexus. In the event of a 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. I EXHIBIT ID Ordinance No. NS-2660 S Page 34 of 61 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 for (i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to proceed to design and construct the Publicly-Owned bnprovemet?ts as set forth in Exhibit* A. If only a portion of the residential. units have been constructed within five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to tliis Agreement. The Agency's obligation to pay for the Publicly-Owned Improvements, and the City's obligation to complete these Publicly-Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from the project-specific tax increment generated'by the Nexus Project; provided, however, that City and Agency shall construct item no, La. on the list of Publicly-Owned Improvements in Exhibit A to this Agreement regardless of the project-specific tax increment received by the Agency. 7. COMMENCEMENT AND COMPLBTION OF CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS a. City shall construct. the Publicly-Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final flans; 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 constnrction•costs exceed $5,000,000.00, then tho City shall construct only that portion of the 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. I on Exhibit A hereto, but the City's obligation to in the climbing vines shall only apply to those property owners who execute a fag-ado 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 liabilitycaused 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 6 Ordinance No. NS-2880 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 land or nature, including, but not by way of limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting front the negligent or wrongful acts or omissions of Nexus or Geneva Commons or their respective employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold 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 Agoncy, shall obtain at its solo cost and file with tho City and Agency, and maintain for the period covered by tltls 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 fYom 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 fox 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 ties 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 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 exerclsing jurisdiction over the City or Nexus, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical EXHIBIT D Ordinance No. NS-2680 7 Pago 36 of M 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 §x1450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 of seq. (Vovemmental 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 accordanoo*11h this section. The injurcd 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-dcfault. Tile, 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, corrector remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 12. APPLICABLE LAW This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. All parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 13. RIGHTS AND REMBDIES ARE CUMULATIVE Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party, 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 Civic Center Plaza, M-20 Santa Ana, CA 92702 Attn: Steve Harding, Executive Director Phone; (714) 667-2700 Fax: (714) 973-1461 with copy to; City Attorney 20 Civic Center Plaza, M-29 Santa Ana,-California 92702 Agency: Community Development Agency City of Sant a Ana 20 Civic Center Plaza, M-25 Santa Ana, CA 92702 Attn: Patricia C. Whitaker, Executive Director Phone: (714) 647-5360 Fax: (714) 647-6549 with copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, California 92702 EXHIBIT D Ordinance No. NS-2680 9 Page 36 of 61 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: Cdry W. Alder Geneva Commons: Coastal Rim Properlies, Inc. 139 But Alton Avenue Santa Ana, California 92707 Attention: Franco Moia A party may change its address by giving notice in writing to dic other parties. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the now 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 W excluded. EXHIBIT D to Ordinance No. NS-2680 Page 39 of 61 75A-160 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 consiruct a portion of the Nexus Improvements under this Agreement, but shall be required to (i) meet acid confer with the Agency and Sandpointe, and using the order of tho Nexus Improvements specified in Exhibit: A as a guide, designate which of the Nexus Improvements shall b6constructed using Geneva Commons twenty-five percent (25%) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and acknowledge that all references herein to Nexus shall bo deemed to be references to Geneva Commons. IfNexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointe sliall meet and confer in good faith, and using the order of the Nexus Improvements specified in Exhibit, A as a guide, designate which of the Nexus Improvements shall be constructed using Nexus seventy-five percent (75%) share of the estimated cost of the total Nexus Improvements. 17. COMMENCEMENT DATE For purposes of this Agreement the 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 herein. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing slid 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 tho 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 shal l include in .EXHIBIT D Ordinance No. N5-2880 t t Page 40 of 61 75A-161 1 - 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 Bankruptoy Act, and any such assignment or transfer shall be wholly void and of no force and affect unless suer written consent thereto be obtained fxom the City Council. Such transfer or assignment shall not relieve Nexus or Genova Connnons of any duty, obligation or liability to City without the consent of the City, During the term of this Agreottrent, 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 n such duties and obligations pertain to the Nexus or Geneva Commons. Any and all approved successors and assignecs of Nexus or Geneva Commons shall have all of the same rights, benefits, duties, obligations, acrd liabilities of Nexus or 0eneva Commons under this Agreement, If the Property is subdivided, any subdivided parcel may be sold, mortgaged, bypothecated, 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 WIMIZE017, the parties hereto bavo executed this Agreement the date and year first above written, SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By ICJ ~-,r Namev Its GS/j91~/? NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC, By Namc Its 12 Ord(nance No. NS-2880 page 9 i of 89 75A-162 the City grants writteii 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, Lind 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 Nvithout the consezxt of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or Geneva Commons shall have all of the same rights, benofits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement; If the Property is subdivided, any subdivided parcel may be said, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee, shall be joint and several. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written, SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By Name Its NEXUS DEVELOPMENT CORPORATION/ CJ3NTRAL DIVISION, INC. By -a Name Its Ordinance No. NS-2880 12 Page 42 of 61 75A-163 ATTEST: COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF SANTA ANA By Patricia E, Healy Patricia C, Whitaker Secretary ofAgeney Executivo Director APPROVED AS TO FORM: Joseph W. Fletcher Agency General Counsel EXHIBIT D Ordinance No. NS-2680 14 Page 44 of 51 75A-164 II I EXHIBIT A OFF-SITE IMPROVEMENTS NPYI~c Tm~~yementn 1. Block Wall a. Main Street between Murphy cwt Sunflower, and house located at 101 W. Murphy b. North side of' Sunflower between Main & alley adjacent to four plexes, excluding sections ofwall 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 exterlor-wall maintenance easement, This payment shall be made by Nexus at the time the individual property owner executes the construction easement in favor of Nexus and permanent maintenance easement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement, Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out, e. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association. f, Remove and replace 4 sections of white concrete block wall along West Alton Avenue amid paint with one color selected by Association. S, 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. L 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 Malt) Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A-1 to this Agreement. b. Nexus shall assist Sandpointe in oblaining/proparing necessary construction bids, documents and permits. c. Allowance will be paid by Nexus to Sandpointe for any applicable home upon receipt of bona fide construction or material invoieos. d, Allowance shall expire 12 months following the completion of the concrete wall EXHIBIT D 15 Ordinance No. HS-2840 Page 46 of tit 75A-165 replacement improvements. e. Window specifications shall be established pursuant to paragraph 4 of this Agreement. 3. TO Elementary Loading Zone a. Nexus sball construct all improvements necessary to effectuate Definitive Easement Agreement between Santa Ana Unified School District, Nexus and South Coast Church. b . Improvements to loading zone shall include driveway approaches, traffic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, etc. as provided for in plans included as part of Definitive Easement Agreement. 4. Pay City $200,000 for City to implement a Neighborhood Traffic Management Plan ("NTMP') to mitigate changes in traffic patterns or increased cut through traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointo Neighborhood. NTMP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the constnrction of appropriate traffic calming devices, including but not limited to semi-diverters, diagonal diverters, and street closures. The implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shall pay the City the full cost (see Exhibit B) for the installation of a Traffic Signal at the intersection of MacArthur Boulevard and Birch Street. Puffille y..nwned rmnrnvemgILb 1 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 EXHIBIT A-1 List of 49 Residential Ultits List of migl6lo Homes for Window Replaccmeah' A1oag1.laia and surt{toaw 5tn8}e [~>,rnlfylfiaasat , 1_ 101 W. mu,mbY (stria to Milli) 2. 37015, Alder (backs to Main) 3. 3703 S. Alder (hacks to Mehl) 4. 3709 S. Aldo (back! to Main) 3. 3713 S. Alder x M Media) 6. • 3117 S. Aldrr (baa.4% to M010) 7. 5721 & Alder (baekt to Main) 8. 3=3. Alder (bcekt to Main) 9. 3729 S. A14er (bake to Mein) 10. 38013. Alta (backs to Mcin) 11, 33034-Alder (backs to Maln 12. 3849 8. Alder (bocm to Mato) 13. 3813 S. Alder (444 to Mein) I4, 3819 S. Aldan (bath to Main) 13. 382) S. Alder (back; to Main) 16. 3828 S, Aldo (hacks to Alder) 17. 3829 S. Aida (hicks to Makin) 18. 3901 S. Aldcr (backs to Makin) 19. 3903 S. Alder (basis to Main) 20. 3909;3. Alder (btdcr to WIN 21. 102 W. Stevan (backs to Matti aklid MlniMatktt) 22. 106 W, Stevan Omoks to Main cad Mlni Maket) 23. 1 t0 W, Stevene (Wo to Alsip mid Mini MwW) 24. 114 W, Stovers (Ucks to Suanowar and Mlnt Merkst) 25. 1IS W.Stovaa 0444 to sunflower) 26. 122 W. Stevens (backs to Sunflower) 27. 202 W.Sbwem (backs to Nntlow!:r) 28. 206 W. Stevens (bcela to 8unitewer) 29. 21 a W, Stevens (bulcs to Suntl"W) 30. 214 W.Suwm (links to sunfl0%W) 31. 3926 S. Timba (Iidw to sunflower) 32. 302 W. Stovpu (bac)4 to -Wflliower) 33. 306 W. SWmU (bntits (03unAOW-) 34. 310 W. Slcvteti (beets to sunnova 33. 314 W. Stcvena (backs to Sontiom ) 36. 318 S. 5taverks (backs to sun(1mver) 37, 3922 S. Etreh (bub to Sunflower) Ranrpk~tr~ 38, 392$ S,1toe4 (a lder to Sunflower) 39. 401 W.Sunflowgr (rrontsSonflower) 40. 40s W. 3unitowv (Bomb sunRowee) 41. 409 W. Sunflower (fonts sunflower) 42. $01 W. Svnflower trdnls svanower) 43. 303 W. Sonflowes fronts 9vnflower) 44. 509 W. Sunflower (Abner sunflower 4$. 513W.SunflaueT (frontsUnflower) UsIn Attmcfton CondrmIxturna 46.3620 AS, Main (ruche to Mein) 47.3632 A S. Main (hymb Main) 48.3632 n S. Main (&OALS Mali) 49.3632 C S. Makin (fronts Main) 17 Ordinance No. NS-2680 Page 47 of 61 75A-167 EXHIBIT 13 SCHEDULE OF NEXUS IMPROVEMENTS 1. Constniction 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 Sandpointo. d. Building Permits, Construction Right-Of-Entry (in favor of Nexus), and Permanent Maintenance Basement for Exterior of Wall (in favor of City) Application, right of entries and easements shall be submitted no late than sixty (50) days after City approval of Final Plans. C. Construction Commencement - Within thirty (30) days after approval of Building . Permits. f Construction Complete - Within one hundred twenty (I20) days of commencement of construction, S. 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 construction 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. Conslxuctiun of Item No. 3 to Exhibit A shall conform to the following schedule: a. Nexus shall submit excouted Definitive Easement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to meet this deadline, which may be, extended in writing by Nexus and Sandpointe, then Nexus shall deposit $ l.2 million from the Nexus Escrow into a separate escrow with terns providing for its withdrawal by Sandpointe, which are mutually agreeable to all parties, for use by Sandpointe on other projects to beneflt the Sandpointe neighborhood. b. Nexus shall complete this item not later than eighteen (18) months from the EXHIBIT D Ordinance No. NS-2680 t Page 48 of tit. 75A-168 Commencement Dato. 4. Nexus shalt pay City for item no. 4 to Bxhibit A not later than approval of the first final map for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Council, 5. Construction offtcm No. 5 to Exhibit A shall conform to the following schedule: a. The City shall provide Nexus with a preliminary estimate of this cost within thirty (30) days of the Commencement Date, 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 ibis item not later than approval of the first final map for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupancy for the Nexus Project, Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and the City Manager or designee. EXHIBIT D 9 Ordinance No. NS-2680 Page 49 of 61 75A-169 EXHIBIT C SCHEDULE FOR PUBLICLX•OW'MD IMPROVEMENTS I , City shall complete item no. I.a. on Exhibit A of Publicly-Owned Improvements not later than June 2005, 2. City shall complete item no. I.b. on Exhibit A of Publicly-Owned Improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. 3, City shall complete item no. I .e. on Exhibit A of Publicly-Owned Improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate tho completion of those Publicly-Owned Improvements (which, under current law. must be designed and constricted by Southern California Edison and not the City) prior to the dates specified above, EXHIBIT D Ordinance No. NS 2680 20 Page 50 of 51 - 75A-170 EXHIBIT "E" Remaining Offshe 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 10' along propegy frontage of MacArthur Blvd. Street dedication 60' from street centerline along MacAfthur Blvd. 4" depressed curb Emergency access on MacArthur Blvd. Triple-left traffic mitigation measure, Southbound Imperial Promenade at MacArthur including sign bridge, signal modification, Blvd updated detection, and signing and striping on both streets Pavement Rehabilitation minimum 2" On Imperial Promenade and First American grind and overlay) Way along grope , frontage from curb to street centerline Installation of new public fire hydrants Along MacArthur Blvd. and First American Way 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-173 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: i. 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. ii. 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). 1. 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 12012 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Resolution No. 2012-xxx 75A-1 77 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-178 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 prior to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in the revocation of the vesting tentative tract map. 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 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. i 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 7V 'tP79 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 7WA f o 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. it '~'81 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 _15A-f62 VTTM NO. 2012-01 MARCH 5, 2012 PAGE 5OF7 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. 70Abit63 VTTM NO. 2012-01 MARCH 5, 2012 PAGE 6OF7 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 1. 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. 75bit114 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. -F,xii~it'~85 75A-186 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 prior 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" 75A-188 SPR NO. 2012-01 MARCH 5, 2012 PAGE 3 OF 7 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" 75A-189 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. Exhibit "B" 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 1. 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