HomeMy WebLinkAboutNS-2831 - Approving an Amended Develpment Agreement Between City of Santa Ana VDC at Met...(ROH 03/05/12)
ORDINANCE NO. NS -2831
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
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.
Ordinance No. NS -2831
Page 1 of 3
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 -013 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.
ADOPTED this 16th day of April 2012.
I„IQyd]
Ordinance No. NS -2831
Page 2 of 3
APPROVED AS TO FORM:
Joseph A. Straka
Interim City Attorney
By:
Ryan Hbdc
Assist rat City
J
YES
NOES
ABSTAIN
ey
Councilmembers: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
Councilmembers
Councilmembers
NOT PRESENT: Councilmembers
None (0)
None (0)
None (0)
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 -2831 to be the original ordinance adopted by the City
Council of the City of Santa Ana on April 16, 2012 and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: 0 %G; ` ,`
Clerk of the Council
City of Santa Ana
Ordinance No. NS -2831
Page 3 of 3
A- 2012 -1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Cleric of the Council.
City of Santa Ana
20 Civic Center Plaza M--30
P.O. Box 1388
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: April 16, 2012
AMENDED DEVELOPMENT AGREEMENT BETWEEN
TIRE CITY OF SANTA ANA AND
VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
This 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 VDC AT THE MET, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY (referred to herein as "Owner" or "Property Owner ") on the other hand.
I. RECITALS. The Amended Agreement is entered into with reference to the
following facts:
1.1 Purpose. (1) The purpose of this Agreement is to facilitate the
development of a sinal l 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 (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 Specie 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 Coastal Rim, who applied to the City to amend SD -43 and approve
a new tentative map, and other entitlements.
(3) The City and Owner agree that the changes Owner seeks in the
2005 Agreement substantiate the need to amend the Original Agreement with the instant
Agreement, rendering the Original Agreement and the 2005 Agreement, and any amendments
thereto, mill and void as applied to Owner's Property (as the word "Property" is defined in
Section 2.3 herein).
(4) As more particularly set forth in Section 2.4 of this Agreement,
Owner has proposed developing the northeast corner of MacArthur Boulevard and Imperial
Promenade 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 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 Codc 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 IIearings. On November 22, 2004, the
Planning Commission of the City ( "Planning Commission "), after giving notice pursuant to
Goverment Code Sections 65090 and 65091, held a public hearing to consider Coastal Rim's
application for the 2005 Agrecment. The Planning Commission recommended to the City
Council of City that it execute the 2005 Agreement. On April 4, 2005, the City Council of the
City of Santa Ana ("Council'), after providing notice as required by law, held a public hearing to
consider Coastal 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. At that time, the Planning Commission continued the matter to
February 13, 2012. On Febwary 13, 2012, the Planning Commission split by a vote of 3:3 on a
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motion to approve the project, thus creating an impasse. Pursuant to Planning Connnission
Bylaws (Resolution 01 -44, § 8e), the applicant desired to proceed to City Council. On April 16,
2012, the Council, after providing notice as required by law, duly held a public hearing to
consider the Owner's application for this Agreement.
1.6 Council Findings. The Council finds that this Agreement and its
purposes 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 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 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.
t 1.7 City Ordinance. On April 16, 2012, the Council adopted Ordinance No.
NS- L approving this Amended Agreement. The ordinance becomes effective thirty (30)
days thereafter.
2. DEFINITIONS. In the Agreement, unless the context otherwise requites:
2.1 "Final Design" means the final design documents for work of public art,
which is set forth in greater detail in Section 5.8 of this Agreement.
2.2 "Property Owner" or "Owner" means 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.
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. �1&0 - 0 41b, Tentative Tract Map
No, 4 -0 (County Map No.M7, Conditional Use Permit , Variance No._
,Zoning Ordinance Amendment No. 0 -01 (amending SD -43), and Site Plan Review
No._1,019� -6 t -6 t
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.
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3. EXHIBITS, The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
Designationn Description in Section
A Properly Legal Description 1.3
B Property Graphical Description (Site Plan) 1.3
C Public Art Plan 15
D Cooperative Agreement for Off-Site Improvements 5.1.1
E Remaining Offsite Mitigation Measures 5.1.2
GENE, RAAL PROVISIONS.
4.1 Property Subject to the Agreement. Until releasedpnrsuant to the
provisions of Section 8.3 below, no property shall be released from this Agreement until Property
Owner has fiiliy 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 Prohibition Against Assignment or Transfer and Identify of Owner.
Owner acknowledges and agrees that the qualifications and identity of the applicant (Vineyards
Development) and Developer, Ryan Ogulnick (owner of Vineyards Development) are of
particular importance and concern to City. Owner further acknowledges and agrees that City has
relied and is relying on the specific qualifications and identity of the applicant (Vineyards
Development) and Developer, Ry<w Ogulnick (owner of Vineyards Development) in entering
into this Agreement and City would not have entered into this Agreement, but for the specific
qualifications, identity and representations of the applicant (Vineyards Development) and
Developer, Ryan Ogulnick (owner of Vineyards Development). Owner represents and warrants
to City that Owner has not made and agrees that Owner will not create or permit to be made or
created any assignment, transfer or sale, except in accordance with this Section 4.3.1, either
voluntarily, involuntarily or by operation of law. Any assignment, transfer or sale made in
contravention of this Section 4.3 shall be voidable at the election of City, in City's sole and
absolute discretion. Owner acknowledges and agrees that the restrictions set forth herein are
reasonable and were offered to the City as consideration for the Agreement.
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As a consequence, Owner shall not 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 for two (2)
years from the effective date of the approval of this Agreement; except as provided in section
4.3.1 of this Agreement. Thereafter, the rights of Owner under this Agreement may not be
transferred or assigned unless the written consent of the Council is first obtained and any transfer
or assignment of the rights under this Agreement shall include in writing the assumption of the
duties, obligations, and liabilities arising from this Agreement if the City grants written consent
to transfer the rights. The rights of the Owner hereunder shall not be subject to assigrunent 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 written consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shal l 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. The parties recognize that to facilitate development of the Project,
the Property will be conveyed into an entity or entities, commonly referred to as "single purpose
entities ", as a condition to, and part of, receiving development financing. These "single purpose
entities" are called such because the only activities in which they are engaged are ownership and
development of prc jccts, including the Project. The restriction set forth hereinabove in section
4.3 does not apply to a transfer or transfers into "single purpose entities" in which the Applicant
(Vineyards Development) or Ryan Ogulnick, have, and may exercise, ownership and 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.
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4.4 • Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868.
The term " Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved and executed.
4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this
Agreement is enforceable by any party to the Agreement in any manner provided bylaw. The
City shall not be liable for, any action in damages or any costs or attorney's fees resulting from
any dispute, controversy, action or inaction, or any legal proceeding arising out of this
Agreement.
4.6 Hold Harmless. Property Owner agrees to and shall hold City, its
officers, agents, employees, consultants, special counsel, and representatives ( "City Parties ",
collectively) harmless from liability: (1) for damages, just compensation, restitution, judicial or
equitable relief arising out of claims for personal injury, including health, and claims for property
damage, which may arise due to negligent acts, omissions or willful misconduct, from the direct
or indirect operations of the Property Owner or their contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates to the Project; and (2) from airy
claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of
the terms of or effects arising from, and to the extent of Property Owner's negligent acts,
omissions or willful misconduct in the performance of this Agreement. This hold harmless
agreement applies to all claims for damages, just compensation, restitution, judicial or equitable
relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section
or due by reason of the terms of, or effects, arising from this Agreement or any approval or
cerfiifrcation 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
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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:
M'
City Manager
City of Santa Ana
20 Civic Center Plaza NI -31
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6954
'a
City Attorney
City of Santa Ana
20 Civic Center Plaza M -29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
If to Owner, to:
VDC at the Met, LLC
828 North Ogden Drive
Los Angeles, CA 90046
Attention: Ryan Ogulniek
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) clays
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 telefacsimile, any notice, tender, demand,
delivery, or other connnunication 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 the rules, regulations and
official policies governing Elie permitted use(s) of the Property, with respect to and only with
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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.
5.1.1 Cooperative Agreement for Off -Site Improvements. Coastal Rim and
the City, together with other parties, executed a Cooperative Agreement for Off Site
Improvements concurrently with the Original Agreement, a true and correct copy of which is
attached hereto as Exhibit D and incorporated herein by this reference. Owner agrees to comply
in all respects with its obligations under said Agreement, and agrees and acknowledges that a
material breach of said agreement shall constitute a material breach of this Agreement._ Despite
anything to the contrary, Owner is not required to construct any off -site improvements other than
as expressly required in this Agreement, in any environmental documentation related to this
Project, or in any condition of approval in any discretionary action related to this Project.
5.1.2 Remaining Offsite Mitigation Measures. file 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 funds or costs for offshe 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 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. hunicipal 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 tune 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 an(( similar codes based upon
uniform codes incorporated by reference into the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, which regulate the manner
in which business activities may be conducted or which prohibit any particular type of
business activity on a city -wide basis; and
(4) Procedural rules of general City-wide application.
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 wilt not object to participation in a community facilities district,
assessment district, or other similar fUnding mechanism, to provide fiuids 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 fiiture regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, including without
limitation the facilities set forth in the Public Art Plan, shall be subject to applicable design
standards and guidelines in effect at the time that any development approval shall be sought for
the Project or any unit or structure contained within the Project,
5.4 FAA Approval. Owner shall obtain and maintain, during the term of the
agreement, any and all necessary approvals from the FAA for the Project. Should such approvals
lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the
City shall have the right to terminate the agreement.
5.4.1. Avigation Easement, The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigation easement in a form approved by the City
Attorney, which shall be recorded with the Recorder of the County of Orange, The avigation
easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the Project including but not
limited to noise, sound, vibration, fumes, 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 party in the avigation easement, but said easement
Z
shall be assignable by the City to a third party, including but not limited to John Wayne Airport
(SNA), without consent of Owner.
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 fie City and are not imposed solely with respect to the
subject property. In addition, this Agreement shall not prevent the City from exercising its police
power to protect the health, safety, and welfare of the public. This police power, exercised in
accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created
or existing between the parties.
5.6 Processing fees. All fees and charges intended to cover City costs
associated with processing development of the Property, including but not limited to fees and
charges for applications, processing, inspections, plan review, plan processing, and/or
environmental review, which are existing or may be revised or adopted during the term of this
Agreement, shall apply to the development of the Property.
5.7 Amendments or Additions to Citywide Tee 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 Properly 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, 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 Febr omy 22, 2011.
5.8 Development, Construction and Completion of Woric of Public Art.
In consideration for the extraordinary and significant benefits set forth in this Section, the Owner
has been legally vested under Section 5.1 with regard to the zoning, permitted uses, 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 grouped permanent work of
rut
public art (the "Public Art "). The Public Art shall conform in all respects to Exhibit C of this
Agreement.
Facilities specified in 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 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 vent LE.Z.,New Use or New Are
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 stricture, 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 Ail 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 dune to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring father notice and public hearing.
5.8.2. Inclusionaiy housing tee. 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(M) 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, inclusionaiy housing units totaling fifteen percent (15 %) of
11
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. 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. Tine 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
Owner, consistent with the provisions of (and subject to tlue 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 recording of the Final Map. Such CC &R's must
contain at a minimum, the following;
(1) No more than four residents per unit, except that for three - bedroom
units, there shall be no more than five residents per unit.
(2) No home occupancy shall be permitted in a unit, except in
accordance with section 41 -192 e1 seq. of the Santa Ana Municipal Code.
(3) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC &R's in the event of
damage.
(4) 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
12
limited to the permitted uses of the property and buildings in the immediate
area of the development (e.g., MacArthur Place, GrifFui 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.
(5) 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 that
shall be unposed by the Horne 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 for Costs of Work of Public Art. The City and Owner
agree that Owner shall be responsible for all costs associated with the design, construction,
maintenance and repair of the work of public art provided for in the Public Art 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 fiunish City, upon
written request, copies of contracts and supporting documents relating to the work of public art.
5.12 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's existing regulatory process
shall be governed by the terms of those approvals, and in no event shall such conditions be
affected by the termination, cancellation, rescission, revocation, or default or expiration of this
Agreement.
5.13 Compliance with Governmental Requirements. Subject to and as
otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design,
construction, and operation of the Project in substantial conformity with all applicable laws,
ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State
of California, the County of Orange, 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
13
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 Iimitation, 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 RE, VIEW.
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 terns 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;
(3) Failure to comply with Governmental regulations;
14
(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 (lie 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 caiuuot 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 - %vriting and signed by the Property Owner, shall be sufficient to terminate this
Agreement and a hearing on the matter shall not be required.
(S) 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 ail 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 Property Owner be
entitled to any damages against Cite upon lawful termination of this Agreement.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any default or breach, to
specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any
threatened or attempted violation of the Agreement; or-to obtain any remedies consistent with the
W
purpose of the Agreement. Legal actions shall be instituted in the Superior Could of the County
of Orange, State of California, or in the Federal District Court in the Central District of
California, Southern Division.
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 arty 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. City
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 fiirther 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 (lie plural, the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than
one signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement
constitutes the entire understanding and Agreement of the parties with respect to the matters set
forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements
between the parties respecting this Agreement. All waivers of the provision of this Agreement
must be in writing and signed by the appropriate authorities of City or of Owner. All
amendments to this .Agreement must be in writing signed by the appropriate authorities of City
and Owner, in a form suitable for recording in the Official Records of Orange County, California.
Within ten (10) days following the effective date of this Agreement, a copy of this Agreement
shall be-recorded in the Official Records of Orange County, California. Upon the completion of
performance of this Agreement or its revocation or termination, an appropriate Certificate of
Completion acknowledging such occurrence signed by the appropriate agents of Owner and City
shall be recorded in the Official Records of Orange County, California.
16
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 Govenunent Code Section
65861 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.
9A Incorporation of Recitals. The Recitals set forth in Section I 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 patty 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 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 petinits 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 65851.5. 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 Severabllity. 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
invalid or unenforceable, the remainder of the instrument, 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
17
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 deerned an original, but all of which constitute one and the
some instrument.
9.12 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)
clays following the effective date of this Agreement.
933 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 arnount of any such defaults. A party receiving a request hereunder shall
execute and retiu-n such certificate within thirty (30) days following the receipt thereof. The City
Manager of the City shall have the right to execute any certificate requested by Owner hereunder.
The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees,
or other parties.
18
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner.
Dated this -I *day of *-JU'h 0- , 20j_�,
Approved as to Fonn:
By
SONIA R. CAR ALHO
City Attorney
THE CITY OF SANTA ANA
By
AUL M. WALTERS
Interim City Manager
ATTEST:
MARIA D. HU17AR
CLERK OF THE C0 21L
VDC AT THE MET, LLC,
A California Limited Liability Company
By,
yan O xcls
Its Manager
19
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE }
On this clay of , 200 before me,
a Notary Public in and for- §aid 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 )
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COUNTY OF ORANGE 0 )
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Oil this ,,Ppd ay of '� , before me,
, a Notary Public in and fox aid state, personally appeared
'f &k— , pe pr proved to me on the basis
of s tisfactoi vidence) 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 naincd, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board,
WITNESS my Band and official seal.
A
SAIMA BAR!
COmmiSsfon # 1908290
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WITNESS m h nd and l.
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OPTIONAL
Though the Information below is not required
by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s): —
❑ Partner — ❑ Limited ❑ General
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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 IPROVEIVIENTS, 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.
EXHIBIT "B"
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EXMBIT "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 all pieces
to be placed at a final location to be determined as specified in 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 Conunission prior to the completion of the
project's first phase. All public art approved by the Planning Commission in the Public Art
Plan shall be completely installed as provided in section 5.8.1 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.
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.
ti. 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 Connnission.
7. Expenses Not Allowed from Art Allocation
i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integral to the illumination of (heart piece.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
EXHIBIT "D"
Cooperative Agreement for Off -Site Improvements
COOPI3RAT1V13 AOR131UMBRT i7OR
OFF -SITU Ii&ROVIRMBISITS
THIS Agreement Is encored into this. - -- day of -, -- - -. - -- -, 2405, by aid botwcon
[lie SANDPOINTB N1310MORHOOD ASSOCIATION, INC., a California, non- prollt publio
hauefit grid fbticral 501(0)(3) corporation (118andpoWito "), thoNDWS DBVSLOPMHNT
CORPORATION /MTttAL DIVISION, INC. a Callfori)ia corporatlon aid q10 Grand Plan 2,
UC, a Cafifbnua Limited Liability Company (colleolively roferred to herein as "Nexus "),
COASTAL RIM PROPERTIES, INC,, a Cnlifort9a corfloralion (" Conova Commons "), the
COMMUMTY RBDBV)3LOP1bIt3i4`i' AGBKCY OF THIS CdV OP SANTA ANA, apublio body
corpomle and politlo (1ho "Agony "), acid the CITY OF SANTA ANA, a chatter city andmualeipal
cotlloradolt duly organized and oxis(lug under 111e Constitution and laws of flie State of California
0110 "City")
WfTtMUTH
A. , Nexus has proposed constructing at flifflon Contar a flvo loyal r"JAwillat
condorotniatm project, hvo 23- residentlet lcvol cnnd6minium Iilot -rise and otre 24•reoldential level
condomh)iwn.(fer 4 total not to exceed 835 eondol0ihnn 01910), together will) A11011IRry retail lint
to exceed 14,000 squaro feet (01o'Tlexus Project ").
B. Geneva Colrnuons has proposed constmoting at the norihoast eornor ofMIwAtlhur
Boulevard And imperial Promenade an approximately 278 -uOt eondomInium project cunsisiing of
an 18- rosidenliMl love( high rise project and an olgbl -story building, logothorwith attolliary retail
(ilia " Ceneva Commons Project "),
C. Sandpolnto Is a no)t- proflt cotporallon that serves as a conduit bolweon tho
Sandpointo Nelghborltood ( "Nelghborltood") and outsidu community and political lntorosts,
SAUdpohrte 1161gliborhood is A rasldonital noigllborh6od of singlo family and sotto multi- family
homes in the southoaat portion of Smile Ana. The SandpointeNoighborltood consists of
approxbnaioly 800 residences, Sandpointodoes not have lice authority to bind any individual
rasidont of the, Snndpo Into N0lghborllaod,
D. T110Ag0ney Is a cornmtalltyredovolop »font Agonoy, as that Conn is Maw In
California Health & Safety Cade § 33100, in 1982, rho Agenoy oreatcd the South Main
Redevolopmont Projeot Arca ( "Projeot Aron "), and Nexus and Genova Commons aro Wonted within
[Ito Projeot Area,
E• Sandpolnle has Idenilfled eorWo physical Improvoments needed In ilia Area of Iho
Neigllbothood MACAro necessitated by or would 1n same way offset theNipaol ottho two
dcvclopindnt projeots. Nexus And ConevA•Commons'destro to contdbuto towards 010 rest Andlor
construcllon of thesolmptovemants to tlle,Sandpolnto neighborhood in addition to and to
' LXCIlt3lx D
Ordinance No. N$-2040 t
Page 20 of 61
supplement the »kiligation measures and conditions of approval imposed by the City of their
rospcolido dovo(op- monts, Thoso lmmprovoments are set forilt in Exhibit A, attached hereto and inado
a part hereof by tills ralbraneo ("hnprovemon(e ).
F. The Agonoy Is willing to assist In the Autding of file Improvoments but only from fi
portion of ttto lax lnoromaill aottiolly gonerated by theNoxtts aii4 penova Coiriniols Projects turd to
Nnd spwlfled Improvoments that would reduce. blight and benef(l tho projcot Area.
Cl, The City's partio(pattoi In this Agtcomont is limited to coordinotlon offuriding
m d/or consituatlon of eetialn, With speoffled publioly owned improvements
11, Noxus has agrocd to constniot some of Vie Improvenionts, andpny for (ho
construellon of others, as more fitily sat forth below ( "Nexus Improvements' ),
I. Genova Cottntons has agreed to pay for a pgrilun of the Noxtts bnprovonron(s,
NOW, TllRRUFORB, the padlos hereto do nmtt(ally agroo as follows;
SCOM OIL WORK
A. Noxus shall cottstniol and/or fluid the hnprovetnctils Idctititicd as "Nexus
Iniprovomonw" In Udbit A horoto according to the schodulo set forllt In 33al6103 to this
Agroomo(t, allaolied herato and htootporated heroin by tins roforonco, Nexus shall bo ontilled to
M111190 of 1.110 hutch doposited in Illo NoxusAsorow (o undarlako tho Nexus Improvements,
B. In considorallon for Nexus' agroe)iien( to consituct and/or ftnul tho Nexus
Improvonotit, 420110ya Coaunotis agrees to vontdbute it sum equal to its pro -rata sharo ofresidendal
units belweon itself and Nexus (whlah is oturently twouty -livo porcont (25 %) purstiant to those
nunibera act forth In aootlons A and B of the Reollyds above) oftlto cost of rho Noxus
Improvements, towards (lie cost 1hereotpayable at the time called 1br below, Notwithstanding (ire
forogohig, if Nexus hes.not oxeculed tills Agreomoul prlor to the data this Agreemont becomes
binding on donova Commons (wh(oh the patties agreashall conoluslvoly deemed to to Iho Brat day
upon wbioit tluo Agreement lira been oxecuted by Geneva Coninrots, (ho City; lhgAgotioy and
Sandpoinip), then C'ronova Co]nin0lts pro -rata share conhibullon to the Noxts )?Morow shall be
conclusively fixed at twenty -five (25 %) regardless of Iho aotttai nutmbor ofxosideiiilel (snits
approved tour It and Noxtts,
C. If the enilro Noxus and C3oneva Conuuons Projeo.18 fire 00114(moted, Agency shalt
031130 rho c011*110Non oftlto fmprovonlonts idontlfied as "1'ublloly -0wned Imliroventcnts" Ili
13xl9611 Aherelo according to the scheduloset forth Inlixhibil C to this Agreotnont, attached hereto
and incorporalcd heroin by this reforonoo. 'The patties aoknowledgo raid agrco that the lolat east_ of
the publioly owned Improvotnonts, inoluding aludles, dosign and overhead , shall riot exceed .Vivo
Million Dollars ($6,000,000.00),
F�BIT A
Ordinance No, NS -2800.
Page 81 of 81
21 COMPENSATI0N AND lvlSTROD OF PAYM13NT
A. Nexus shall, ivAhlnsixty (60) days ofoxebutionofthis Agreement, upon an escrow
aocount at ititst Amorioan Title Insurance Company, 2 First Amorlaalt Wny, Santa Ana, Collfomla,
or an ego1valent escrow company approved In advance by Genova Conuttons and Sattdpointo, for
deposit ofRulds to be used to pay for the Noxuslmprovemcrt(s (roferred to horoln m iho 'Noxus
Escrow'),
D. Sandpohtto shall deposit $1,000.003nto'ticeNexus Dscrow on tho Kwrow
Subnitssloli Date no later [hall trio date (Ito of of
this Agroumon(,
C. prior to thodoadlinospeolfled ht paragraph 2.D, of this Agreement, Noxus nud
Genova Commons shall sleet and c 1MV In good faitb to ogroo upon Vie cs(hnated cast of tho
Nexus ilnprevamanEs, if, t<t arty Elute, 0fglorGcnovat;.`ottmtons or Ncxus dctermJttos thatsllolt
agmentant is not possible, Uten the objecting patty shall submit fit dispute In wilting, tegethor wilts
airy eviclonco upon �vhloh 1t relies to City's Pablio Works Agency and
1110 olhor party. Wllhln fifteen (15) days of lls receipt ofsald ualco, ilia non- objeoting party shall
thenhave ffteen 05) clays to submit anyresponso It has to the City and Titoobjootingpony. The
>Elxeoutivo Dkeolor of the City's Public Works Agonoy or d mlgttco shalt titan, wlthJn d*iy (30)
days ofre0olpt of the response, if any, or 11-to axpiration of sald deadline, ini'orm both Genova
Commons and Noxus In writing of iho flont dolorl»hlation oflho esilmaled total cast, which► all
panics agree shall ba cottchisivo and binding upon both iTexus acid douova Commons, 171arestior,
Nexus attd Clonova Colnntons shall doposit Iholrrespective shnres of RIO oslimated cost of-tho.
Nona ImNrovonlonis as sot forth in paragmph 1.13. of this Agreoment, (ass $1,000,00, Into lice
Noxus Escrow no later that[ tho date speolficd In paragmph 2.D, of this Agreement,
10, Noxuss}tall pay Into the Nexus Lsorow no later than (1) Iho date the fitst building
pormit Is Issued by the City for Rho Ncxus Project, or (11) it data idnoty (90) days after the issuance
of enllilemen(s to Noxus, provided no 1111801lon or f0foronduni pelillon challengh)g Noxim has been
flled and served on the City, whichover conies later. Goneva Conunons shal( pay htto the Non's
Esorow no later than (i) the clato tho Mat bttllding pomi(t Is Issued by the Ct(y for tho-Genova
Conunons Project, or (li) a date nhiety (90) days ago, tho 1a,9uanco of onlitlemonts to aonova
Cotnmona, provided no litip,atton or roferOndum perttfoa oilollengblg i30110VA Comm0118 hex been
riled and served on tho City, whichever comes later.
EXHIBIT))
Ordinonoo No. NS-2600 3
Pago 32 of 511
R The Agenoy aliall Itay the City its cost hioarred by Ilto City for Ilio Publicly -Owned
huprovements sot forth lit BAdbit A to Oils Agreontcid; provided, bowevortliat total Coimni[Imenl
by the City and Agency toward the Publloly4hvned lnnprovomords shall not oxcccd EVE
MILLION DOLLARS ($5,000,000,00) If 1110 items set forth as Publioly -OwIW Linprovotnonle ht
Exhibit A Pro Ibund to cost morn than. Oils suin, thon ilteAgenoy shall, in The oxerolse of [Is solo mid
absolnlo discretion, limit or elfminato 1'ttbiloly�Otvnecl lniprovartteuis sot forth In Exhibit A;
provided, howover, that the Agenoyshall proceed with ihornibllo lyOwt.edknprovoimctits III the
ordor as set .forth ii. said I3x1011.
NBXUS CONSTRUCfiON DUtAW1N09 AND IMLATBD DOCUMENTS'
A. Naxos shall proparo and submit constrnclfon drawings and roloted dooutnonis for -
Homs hated on Exhibll A to the City for roviow (lnoluding, but not Ifntflcd to, archi(echal rdvieiv)
and wrilion approval as and at the times established ht Iho Suhadulo uPPorforntattoa sot forth In
Bxlilbit 13 to this Agreement. The consintotion drawings and related doctunonle shall besabntlttod
lit Iwo stogos :- (1) the Pfollmittary Silo Plana mid (11) Final Silo Plans.
R, During the preparallon of ail drawings and plants, City staff and Noxos shall hold
rogulavprogrese rncetings to coordinato the properntlon of submission to, and rovtew of .
construction plans and related documents by the City. Tho City staff and Nexus shall ootninun[cato
and consult infonlially as tlquently as is nccossary to Instue that tho fonnal subanitial of any
dooumonts to the City orui rccolvo proitipt and speedy conalderatlon,
C. Any revision or correotton of plans regnJred by Iho City shall bo deemed approved
by tho Agency, Cenova Commons and Sandpolnto.
D. Nellhor (lie City, tho Agonoy, Sandpolnto or Gonova Commons shall havo any
owntorship Interest 1n, or any right to ueo, tlieProllmtnoty Silo Plans or tho-Irfnal Silo flans
subimitted by Noxos, norshall [lie City, tlne Agortoy, Sandpolnle or Cleneva Commons oUUtorizo tiro
right to use any 4uohplons or drawings to any porson or onlity.
APPROVAL. OF NUXUS PLANS, DRAWiNa$ AND R13LATI3D DOCUMENTS
A. Mho City shall havo the right of reasonablo rovlow (Inoludbrg, but not limited to,
arohlwitrai roviow) of all plans, drawings And rolated docuatonls Moluding any proposed changes
theroln. 'Tho City shall approve or disapprove sucltplatts; drawingy, attd roJaled (arid airy proposed
changes 1horo[n) ivilWo IN tones established In rite Solredulo of P ribmianco sot forth In U0103
horoto. Such approval shall not be unroasonably withheld.
B, Any disapproval stall state In writing Il.o reasons for disapproval, Tho City shall
have the right to disapprovo, in its roasonablo discretion, any of tho Final Plans if Ilse Final Plaits do
,tat conform to rho Approved Plans, the approved Prellminaty Piano or do riot conform to BA)Ibit A
to this ASmoinent, or aro incornpleto,
BXHll3'1'1' D
A Ordinance No, NS -2080
Page 33 of 01
C. The City shall state In writhlg the reasons for disapproval of lite Final Plans within
sixty (60) days of reQelpt Of copies Of S1101) final Plans. Fallute to xespand wltl>fn this sixty (60)
da} period shall not he grounds forresllGnthlal,
V. Noxtts, upon receipt of a ttollco of disapproval, shall rovlso such portions of the
Plans, dMIvings orrelated dooltments In a wannor that reasonably satlsfios the, reasons for
disapproval and shall resubmit such rovised porltous to 1110 City as soon as possible anorrtccipt of
the noilco of disapproval, Plaits, drawings, audrelated dootunonts ra:oiving City approval sltalinot
be 4tiN luonlly disapproved. Nexus.shali 01161114 that all of Its plaits, drawhmgs and related
documents comply with all Clovorlunenlal Requirements.
COUMBNCEMBNT AND COMPI; TION OF CONSTRUCTION OF NEXUS
IMPROY MBNTS
H. Nexus shalt construct and/or fl►nd, utilizing the Noxus )Uoro%v, file hnprovemenls In
confortnanco Nvlth Bxhibit A to Ihts AW0111cnt and Iho approved Final Plans, 10 We extentlhat (110
cost of tho Nexus hilprovomonts, eonatntoted In mufornmattee with RAlbit A to this Agreement and
the approved final Plans, exceeds the lands In the Nexus M —orow, Nexus and Genova Commons
shall bo solely responsible for sold costs, whit each responsible for any additional cost to 1110samo
peree110P as is sot forth In paragraph I.D. of Oils Agroorttent, Noxtls shall ooJnpicto or flub!, as tho
case may -bo; the constructlon of the llnpl ovelnunts in conformaneQ with lite scitedule set forth in
1301bit I3 to this Agreement,
b. The pamlles aeknowlalgo gild Agroo that Iho Blook Wull Identified as ItontNo, l on
Exhibit A will be constructed Q)1 Via proporllos of dozons of individual hotneovntots In iltu
Sattdpohtte 1101811borltood,110110 afwho)Im W parties to this Agreement. Thapartles agree, to use
their best effbris to obtain permission of oach. of tltesu Indtvidual prolwtiy owners to constnlct this
Block Wall and to permit the City to pormancnily malwaln flto olintbhtg ivy along tlto exlorior of
tho vrall, However, it is lite partlostlnderelandhmg and Intent thAt should atty property owner reAlse.
Io agree to pennit file constntollon nnAr oxlorior Ivy mal11tellanee (Jtold outs "), thdt the, Block
Wall will be constructed rogardlass otwiy hold•otlts, fwd Mal None shall cnrtatrtmct the Block Wail
In such fttsMott as to John the Blook Wall to existing wall segments owned by hold outs raid
nlhdlnlze filmy ilegativo aosthetio Jrnpact caused bysuclt hold outs, Nexus agrees to hold Sandpolnle
and Its otileers, direolow, ontployeos turd ageutshatmlcss front any claltmt by any and alt proporty
owners Including such holdouts arising out oftile eonslmoilon of thokllook'Wail In which
Sondpohlte, or Its otfficets, directors, employees or ngonts are named. No= shall be perniltted to
select goutmsol to dofond Sandpolnto at 1110 oxponso of Nexus, In time event of a potential conflict of
interest bonveon Sandpolnto and Nexus, Statldpolnte shall h4vo the rlgfmt fo solcol indopondont
counsel. All toes altd costs of independent counsel selected by Saudpolnto for dofenso of any cfafm
arising out of of relating to any olahns dosoribed heroin shall be paid by Nexus oft behalf of
Salndpoh►to,
13X iIBITT D
Ordinance No NS -2eoo S
Pape 34 of 81
6. A.GI OY NOTICE TO PROCHED VOR IDItSIGN AND CONSTRUCTION OF
PUIM,TCLY OWNED 1WROVEMBNTS
Upon tho lssuattoo of a cerlifneato of oceupattoy pursuant, to Ilse Call fornla.BuIlding Codo
f'o'r (1) Ali residential 1111118 In a lnhilnuun oftwo of iho th000 high -rise towotg In the Nexus Project,
sold (l1) all realdonlfal. units In the Genova Commons Projool, dio Agency snail givo tho City a
Iloilo# to proceed to dosign and construct [tip l'ltblioly0wue(1 bnplovenrclrls as sot forth, InExiflbil'
A. If only a portion of the realdentint. units have been consnvoled within (Ivo (5) years ofthe (Into
of the Coninioncomont Date, then the, Agency shall only give the, City a 11otico to proceed with it
pnillat list of Items as set forth in Billlibit C to this Al reentont. The Agency's obligation to pay for
thoPubliolyOwned hnprovontouls, and (ho City's obligoll611 to ooinpleto tlilxsvPubltofy- (,viled
Iniprovontonts, or MV part thereof, shall be, limited by tho Agony's ability to Auld sold Nvork Roln
1116 projcot- speolflo tax iuorenlont gonorated "by the Nexus Project; provided, however; Mat City mid
Agony shall consRuol {toot no. Ln, on the list ofPublioly -Owned Improvements in Exhibit A to
ills Agreelnont regardl6ss ofdtoprojeet- speclfle tnx inoron,entracoivcd by the A$onoy,
7. COMMENCEMENT AND COWLISTION OF CONSTRUCTION OF PUBLICLY
OWNED 110ROV) MIiN'MS
a. City shall consttuot thu Pttblicly -Owned Anprovemonis 111 eotlformancowidi tho -
sulmduto set fortli in RAM( C to this Agreement and the approved Meal Plans; provided, howover,
that iho Agency slid City shall havo no obligation once tho cost of the Publloly -Owned
Improvements exceeds Vivo Million Dollars ($5,000,000.00). I(f t11e cost of tho Psblloly- O,vned
Improvements, hioluding all design, admhilstrAve and eonstnlctlon'eosts oxcccd $5,000,000.00,
61e11 tho City Shall consirnct only dint portion of site Publloly Owned Improverawlt,'s as speolgvd In
ExIM C In iho exoroiso of illo Agoney's solo mid absolute. disorollon.
b. Chysl tall, at tho, concloslon of tho plant otablishmont phaso speoffled inBAlbit B,
additionally tnalnlaht iho ellnrbing vincs and Irdgatlon con8tnioted by No= along tho outside of
the block wall, referenced 1n.1ten, no. t on INIJbit A hereto, but the City's obligation to ntalnluln
the, olimbing vhlcs shall only apply to thoso property owners who oxecuto a IRgade oasonient Ath
Iho City In a form approved by the City Attornoy petmitifug the City to maintain said allmbing
vitas aild htdomn i ying Uto City rron, any Ilobility oaused by said olimbing vinos and/or Irrigalion.
Sandpoiittoshall be responsible for obinhdngslgnataro from lhesolndivlddalhomoo,vners,
8, LIA131LITY AND IND13MNIFICATION DURING CONSTRUCTION, BODILY
INJURY AND PROPERTY DAMAUB INSURANCI;
A. Prom, and AM 111013M0011vo Date, Nexus and Genova Commons agree, to and shall
hndenurtty and hold Agonoy, dly and Sandpohnto, slid tholr rospeotive ofileere, dlreotore, ngonts
and omployees harmless frorn and against all damages to pmporty or iujurlo to or (1941 of any
person or.persons, ltioluding employees or agents ofAgenoy or City, and shall defend, Indemnify
EXHIBIT D
6 ONInpnce No. NO.2660
page 36 of 61
and Savo Agoncy, City and Sundpohllo, and tltolr offloots, agents, and oniployoos, from any and all
clahns, demands, soils, actions, or proomihlgs ofany kind or naturo, Including, bill not by way of
limitatlon, workors' componsalion claims of or by anyone whomsoever, In any tray 1'osull#ng hont
the nogilgent or wrongAil acls or•oullssions of Nexus or ponova C.onlnions or their rospeotiYe
cinployees, agogtts or sttbootilractors, Iror itsoltand no ollro,; Satndpolnto agrcgs to lipid latumloss
Agoncy, City and their rospeotive officers, direclors, agents and ellipioyeos &oil and against nil
damages to proyody or irl1Ww to or doalit of any person or pemons, In any way resulting from iho
f ogligcnt or wrongful acts or otnlssfoiis ofNoxos or cionova Coniftim, or their roneolivs
employees, agonls or astibconiraotors-, This Agreement sliall not bo Intorproted or consisued to
obllgalo Swidpolnlo, its offlaers, direolors or egonls, or the Neighborhood to defend, Indonuilty or
to answer in any way for lino Agonoy tfta City or thole respootivo ofrtleom, directors, agetiis or
employees for 911th claims,
D. Prier to file coinmencettienl ofconitiltolloll,Nexus drany otherpadyworkbig
wlibin the real property of tho City or Agonoy, olitill obtain al it$ 5010 Cost and file Willi file City And
Agonoy, and malnlain for the period covered by Ibis Agreement, a poltoy or polioios ofllabliity,
Insurance or it eortiflonte ofstiolt insuronco, consistent with this Agroement, naming Agency, tho
City and Sandpointe, tholr oliicors, direotors, agonls, and ompioyees, as insured or addlitonsl
Insured, which provides coverage not less than that provided In tfto form of a coniprohorlslvo
gonorat liability Ittsurfutco policy against liability for any acrd till olalnns and sullq for ditm, -tM or
Injuries to persons or property resulting fi'oin or arising out of operations of ]Nexus, Its officers,
directors, egonw, oromployces. Sold policy orpotioios of insumnao shell provide covoratgo for both
bodily lujutp a1111propotty (1,1111880 In not loss than 0110Mlllton ]Dollars ($1,000,000) combined
single llmil, or Ito equivalent, Said policy or poitoles shall also contain a provlslon thnt no
torminallon, ctutccllallon, or chautgo of eovorugo oftnaurcd s11811 ho ufll.otivo until PRor lbirty, (30)
days naf ioo (itoreoflins been givon In wrl ling to City and Agency. Nexus shall give to Agonoy and
City prompt and lin►oly notice ofclaltn mado or still instltitted arising out of Nexus operations
heremidor. Nexus may procure and mahtlohl, tat its own oast sold expense, ony eddilional kinds wed
amounts ofinsumneo, wltloh In its own,ludgniont may bonecessaty for Its proper proteotlon i ►I iho
proswitlion of Vie wont, All hisurailea poileles shall be writton by rosponsiblo and solvent
lnsuwice companies and shall Include, wi addiiionnt Insured cndurse►ncrrt ini substanlially the form
of Bxhlblt D, attached hereto and incorporated heroin by Ibis rofcrettce
COMPi'.YANCI3 VATO COVTsTtM13NTAi, RflQUIIt13iv1SNT,S.
Nexus shall carry out the designpconal,roodon, and operation of tho Noxils Lnprovomonis in
aubslanllal oonfornitly will) oil tapltlleablo laws, ordluatnces, slatutas, nodes, rules, regulatlons,
orders, and doorees of the Vigled Slates, into State of California, ilie County of Oran$o, the City, or
any other politioai subdivision in which the Property Is located, and of a►►y oliterpollHeal
subdivlsloit, agonoy, orinstnimtrtnolity oxerclsing jiirisdtcttai over Ile City orNoxas, inaludhig all
apnlIeable federal, sloto, and local occupation, snfoty and lioalth laws, ratios, rogulaHrnrs anti
standards, applloabfo stato acid laborsiandm-da, applloablo provallbtg wagorequirowents, the City
ironing and dovolopinent standards, City pemlile slid approvals, building, plumbing, ineolianloal
EXHIBIT D
Ordinance No. N8,2080 7
PA0a 30 of t33 -
aid olectdcul.eodes, and ull oilierprovislons of the City and its Municipal Codo; and all applicable
disnUed wid handicapped access requirornenls, lneludipg, -sviihout Clio llmttaflon,thoA.medcaus
With Dlefibli ty Aot, 42 U,S.C. § 12101 et seq., (lovominwil Code § 4450 et scq., and tho Unwh
Civil Rights Act, Civil Code § S1 at seq. C'Coventinonial Requiremonts ").
10, DB1+AULTS AND IMMED188
If any party Mantis in performance ofiis obligations, covananis or agreeutenis hereunder,
1ho defaulting party shall be ontilled to cure tho doWlt In accordatio0ilih this seodon. Thoiijured
party shall give written jtolice of default to the party In dolanit, speoitjriug the default cornplaitled of
by tllo ir�nrcd party. Dolay in giving suoli noltco shall not conatituto n walver ofany default uor
shall it ohange tho limo ofdofaull. Tan dolholtingparly inust, within thirty (30) days, following
sorvico of said notice, conunonco to cure, coneot or romedy suoh tailors or delay and *hail oomploto
snolt curo, eorreatton, or remedy with reasonable dlllgouco.
11. INSTITUTION Olt LIIOAL ACTIONS
Sub�cct to tau lrrovisions of Seeiion 13.Itercof, fn addition to any otharrlglits or remedies, either
padyrnay Insiituto 108611 action to Onto, correct or comedy tiny dvfaull to tneover datnugos for any
default, or to obtain any other romedy coltstatout. with the pwposo of this Agrcenrottl•
12. APPLICABLE LAW
'1'lds Agtuemont told all questions rolaHng to Its validity, Intorprolallon, performance, slid
enforoontont shalt ba governed and constmed ht accordance with tho laws of the State of California,
'Phis Agreement has been executed and delivered In the Stato of California and tho validity,
inteilmiailon, porforrnanco, turd ontbreemeni of any of tho olausos of Us Agreoment shall be
dotertnined tool governed by rho lotus of Ilte Slate of CAtiforttia, All parties further agree that
Orange County, California, shall bo 1110venue for any notion or proceeding that inay be brought or
arise out of, In connection with or by mason of WeAgrcamanl.
13, N{3I-1TS AND IMUBDIUS ARB CUMW ATWH- -.
Bxcept with respeat to rights and romedlos oxin'Mly deolared to ho oxoltisivo in this Agreement, the
rights and romecllos of rho p0lcs arc owmi tativo and the oxorolso by olthor party of one or more of
such d8lits or romedtes shall not preoludo the oxomiss by It, at thosamo or different times, of any
othor rights or romedies for (lie samo dofautt or any other default by the ocher putt',
BXHIt3IT )
R ordinance No. N8.2884
Page 37 of 61
14. DA1v1AO)38
In the ovont hint tlto Agency or City is liable fordaniages to N'oxus, Sandpolnte and/or Ceneua
Comnluns, sttoh tiabilityshall not exceed costs incurred by Nexus, Sandpoinie and /or Geneva
Contntons'ln tho perfoitinaitco of tilts Agreontcnf mid shall not- extond to compensalton for loss of
Aftra Encomo, profits orftwis.
15. NOTIO13S, DUMAND AND COMMUNICATIONS
Ponnal noticos, dontands and eominunfeallons between Cite parti4s shall bo sutiiolenlly given if
dispatohedby roBletcred or certified in all, postageprepaid, rehim receipt requested, to tho poltclpal
oillees of tlio Agettey turd tlio Developer ns desigonted bolow. Suoli wdUen iiotteos, detttatdn and
contniuiloatlous inny boseltt !n Ibo aloha ve nlor to such otiter addressos as olthor party ntay from
tuna to timo daslgilato by mail as provided in lhls seotlon.
City: City ofSanta Ana
Platulbtg and Building Aaonoy
20 Civic Cantor Plaza, M -20
Santa Ana, CA 92702
Atha Stove, Harding,l3xeoulivQ Director
Pltono: (714) 661 -2700
Fax: (714) 973 -1461
with ovpy to: City Attorney
20 Civic C000. 1a7.a, M -29
Santa Aun,'CaNfomla 92702
Agency: Comnttutity Development Aganay
City of Santa Ana -
20 Civlo Cantor PWA, M -25
Santa At CA 92702
Alhi: Patricla C. VA9(akot, I3xoadivo))irccior
Phono: (714) 647 -5360
Fax: (714) 647-6549
Mill copy to: Agency c3onoral Cotutsol
Con- anwivity Redovolopinent Agency of tlto
City of Srutto Ana
20 C1vlo Cwttor Phiz%- M -29
Santa Ana, California 92702
k3X1.11BXT D
Ordinance No. NS -2080 9
Page 00 of 61
sandpolnte: Sandpointo No]ghborhood Assoolallon, Inc,
PA Box 27122
Santo Ana, Callforidn 92799
Attention: Bob Blank
Nexus. Noxus DovolopM001 CorporatlonJCenlral Dlvlalon, lira.
'file QrandPlatr 2
1 Maakthuy-Plaeo, Suite 300
Santa Ana, California 92707
Atlonlidaa: Cory W. Alder
denevn Commons: Comial PJmPropertles, Ina.
13913asi AltonAvemre
SiliviAnn, Calitlomia 92747
Attention: l mnoo Mola
A panty may ohanso 118 address by giving nonce ]it writing to ilio other partlos, 7'horonflor, tiny
nofice, lender, demand, delivery, or other cornmunloallon aliall be addressed and iransmilted 10 file
rraw address, Mserit by ninit, ally notico, tondoe, domm id, dollvery, or other conimonioation shall be
offeoiivo or deanied to ]love berm given three (3) days After It has been doposkd in theUntted
States mall, duly registered or cerli fled, with postage prepaid, and addressed as sat forth above. If
,%gill by fao.9imilo, any riolico, tender, demand, dolivory, or other commrinicatlon shall be offeotive
or dccnied to havo been given twonlyfour (21) hours alter the ttriteset forllt on 1110 tMISI issEon
report issued by Vie transnillling ihoshril le machine, addressed as set forth above. For purposes of
caloulating Ihese lime frmmes, weekends, fedoras, stale, County or City holidays hiffl b0 vxvhidcd.
13XI-11DIT D
l p Ordrnanco No. NS-2600
Paga A .1 61
16. ' BFFJ3CTlVE DATB ANID THRM OF A()RH13MBNT
Tlils Agreontent shall take offeot from fled aRor (ho dato of adoption and approval by the
City and tM Agonoy pursuant to o1'flolal action oftitogoverning bodias thorcofand shall ho
effeoilve wail oomplellon and noel }lance of iho Nextts•Improvomonts and Publicly - Owned
Tinprovoments; IfClelteva Commons is approved by the City find Nexus is not, then Geneva
Conunons shall take over Nablus' obligations to eonstniet a pwilon oftho Naxos Improvettiouts
under this Agrcomcnt, buf shall bo requirrd to (1) meet iv d confor wlih Iho Agonoy aid Sandpointo,
and using the order of tboNomm hnprovemonls speoilled In Exhibit o a guide, doslgnatewidol►
of tl ►o Noxus Improvomculs shall bo coustwoled using Genova Commons twonty -fl ve percent
(25 %) shara of [he csihmted cost of the Iotal Nexus I'n►provontcnts, And (ii) llto partlos agroo raid
aoknowledge that all roioronoos lioroln to Noxus ohall'ba doomed to beroforeneus to Genova
Conunons, TMoxus is approved and Goneva Commons Is not, then Noxu4, tho Agonoy and
Sandpohito shall moot and confor In good faith, and using the order of theNoxus Improvomonts
speolfled in Milblt. A ae a guldo, dosianote whioh of 1110 - Nexus Improvemenls AMU oortatwated
using Noxus sovonty- ftvopereont (754/0) (limo of tllo estilimted cost of Illo lolal Nexus
Tmprovottlonls,
17. COMMBNCBMBNT UATR
For pm-poses of tads Agreonzont tho tom► °Conunencomont Uato" shall refor to the period
alter issuance of City enfillomonts and shall be deemed to boa date ignely (90) days after the
Issuance of ontitlotnonis to Nexus and Cerium Commons (whichever comes later), lice
Conuitoucen►cnt Onto shaft be tolled should it valid reforondntn potllion be prosontcd ohallenglug
oilhor project, or tin►oly tiligaHo►i be tiled and served ehallcnging any oftho entltlontents,)noluding
approval pursuant to the Callfondn Bnvlrontnontal Quality Aar,
18, INTRORATION
Tlds Agreement Integrates all of the terms rind conditions mentioned horein or iricfdontal harola,
and supersedes all nogoliatlons or provious agroomont betwoon Ihopadlos with rospool to all or
any the maltose addrossed haroln, All walvMrs of the provisions of this Agreement ►trust be In
writing and sighed by the opproprlale. authorities of the parties, and all amendnionis hereto niusl
be in willing and signed by Iho appropriate nuthorillos of the panics,
19, ASSIONM13NT
Noxus and Geneva Commons shall have iho right to transfer or assign this Agrcomont, in
whole, to any person, Wilily (public or private), partnenf 1p, johtt venture, firm or eorporatloa
who is the ownar of the road property roforonced in tho Reoltol lierato at any [into during the tern
of this Agroomont, provided, however, the rigltls of Noxus or Ceneva Commons under 11118
Agrcon►ont may not be transferred or ausigned unloss lire ►vritten consent of il►e City Counoll is
first obtpined And ally tri ttsfor or assigiufrenl of tho rights under this Agreoment shall Inotudo lit
BXHLBIT D
prdlnanoo No. NS -2890 i t
Page 40 of 61
Ute City grants written aonsont to tratisfor rho rights, Igor shnll ihorighis of Nexus or Ooneva
Commons horeiindor be aubjeot to nssipment by nttooltmeut, oxooutlon, or proceedings under
wq provislon oftho Dnnkruploy 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 Connell.
Stroh transfer or assignsnant shall not relieve Nexus or Cleave C9nunons of any duty, obligallon
or liability to City w1thout rho cotisont of tiro City.
During tho term of ails Agrwinont, any approved assipoe or transferee of the
rlahls undot (Iris A.greoment shell observe and porform all of the, duties and obligations of Nexus
or clanova Cuinmons conlained in ibisAgreeniont ns such duties and obligations podattt to the
Nexus or Coneva Commons. Any aril all approved sucaunsors and nssigveos of Noxus or
tloitova Commons shall have all of the some rights, benoOls, duties, obligations, raid liabilitles of
Nexus or Geneva Coninions ilndor this Agreogiont, if thi Property is subdividod, ally subdivided
parcel may bo sold, morlgaged, l)ypotheeated, assigned, or transferred topexsons for
dovolopmont by them. Upon assignment of transfer of the rights of Nexus or Oeuava Commons
under tbls Agreemont, tho obligations of the asslgvor and tale transferee, or assignee shall be Joint
and several.
IN WITMSS W,F� R110lr, Me parties hereto havo oxeellted this Agreement the dale and
year first above wditen,
SANDPOMT19 Nl,TODDOM100D,
ASSOMATION, INC.
r
�r
NEXUS DBVBLA]'1vlT NT CORPORATION/
0 l3NTRAL DIVISION, INC.
By
Now
Its
t 2 Ordinance No, N$ 2080
Page 41 of 61
1110 City grants witted consent to transfer tha rigllts, Nor Anil 1116- rights orNaxus or penova
Commons horeunder be subJoot to assignment by attachment, exeoutlon, or proceedings undor
oily provision of the Bankruptoy Aot, and nny sacl) assigonront Or frausfershall be who))y void
told Of "O force and effect unless such written conseut thereto bo obtaiuvd from the City C0U11911.
'Such Transfer or essignmout shall riot re)leve Nexus or Geneva Commons of Puy duty, obligation
or iiability to City without tbs oonsont of iito City.
Dmi» g the tcrin of this Agreemont, tiny Approved assignors or transl`oreo of ilto
rights ender tills Agreentont Anil observe and perfoml all of the duties and obligations of Nexus
or 001114 ti Commons contained in lhis Agreement as such dlttics and obligations podalu to the
Nexus or Ot Nova Commons. Any and nil upprovad successors and assigrlcos of Nexus or
Go)IOVA Colninons Shall )lave All of the sOmo rights, WWII, duties, obligations, will liabllltles of
Nexus or Geneva COMMOns under tills Agroonront: ff the Pxoparty is subdtvided,'ony subdivided
Moot MAY be sold, mortgaged, llypodleoated, assigned, or trawforred to persons for
deVolopmerit by thous. Clpo» assipimlt or transfer of the rights of Noxus or Csenovn Connllons
under Oils Agreement, d1e obligations of the assignor and tho trag9f'orco or nssigneo shall bo joint
and several.
IN WITNBSS WHBIWOP, the parties hereto have executed this Agrcotttoot tho (into and
yeAr Am Am written.
SANDPO]NTB M10111130RHOOD,
A850CIATION, MC,
-By -
Nante
Xis
NEXUS D}3 BLOPMBNT CORPORATION/
CRNT12AL DIVISION, INC.
By
Na o
Ita
Ordinance Flo. tt5.211t)o 12
NCO 42.0f 61
ATT)3ST;
._--- ..00ly ---- .,..�.. M�..____.
PntrlaiH �� Noaly
Scorolary ofAgenoy
APPROVED AS TO FORM:
Josoph W. Fletcher
Agency Ocnaral Counsel
Ordinance No. MS 2880
Page 44 of 61
COMMUM U13V1 LOPI iTWNTAGINCY
On TIM CITY OF SANTA ANA
pulrloin C. miltnker
Buoufte Urcctor
) H BIT-b
14
f3 URBIT A
MIS1TH IMP1t0VBMBNTS
Blook Well
A. Main St-rccl boliveali Murphy & Smuflower, and houso loontod At 101 W. Murl111y
b. North side ol'Sunflower behvcon Main & alloy adjaconl to lour plexo, oxolttding
soelions of wall at �oruor of Main & Sunflowor at rear of eommetclal bullding
Q. P)Astar and paint lvith ono color selcoNd by Assoolallon -
d. $3,000 per house paymelit for repa9r/ replacotnontoflandscapingossoolatodAlh
well imProvoinonis open oxectlNon ofNoxus rlgltt -of entry for constntotfon ;utd
oxtet`loi�walt ulflintonanco Oa30rneMt. 3'f11s payment shall bo made by 1�Ioxus allho
thno llto individual property omior excoulos the constraotfon 048011110nt III favor of
Nexus and permanont maintenance easoment (for the ollmbing vhtos) in favor of
1110 Clty. For any "hold anti" (as deilned In paragraph 6.b, of this Agreement,
Noxus shall niake the $3,000 paynlont to Sotldpointe in trust for eaoll hold ou6
o, Remove and replace 16 sections of white cortoreto block wall lit iirunedlato area of
MaoArthurBoulevard and Flowor Slscol, and paint with ono color soleotod by
Association
f, Removo and roplaco 4 scotions of white concrete block watt along Weal Allen
Avonuo and pand with one color Mooted by Assoolation,
g, Nexus shall install climbing virlos, speoles Idonlifled by the City, along tho outor
edge of tho wail, install inigadon to feed said ollrnbing vines which shall he
cowleeted and metered by Noxus at 1110 neatest City water supply, and shall
reoonstntot thosldowaLk to tho City's speoiffcaitollg aflor lustaflailon of the
irrlgafloll Rites and blook wail,
h. Wall-roplaaoinont speolfleations shall be established pttrsttant to paragraph 4 of
this Agrecnlow,
I. Noxus shall maintain, and replacb as necessary, lire olimbing vines during a ninety
(90) day plant vstabl S10110nt phaso to]low1ng Item 110, 1.8.
Window Roplaootnonts
a. Noxus shall provide $3,500 oonsinlotion aliowaltoo per house for sound proof
Mudow replaceinonis for up to 49 residential units located along Mali) Street and
Sttnflowor Avenue bohind 1110 oxiMing eoncrolo wall to be ropineod. Tho 40
residoutlal units are Identified in BAN( A•1 to 1149 Agreomont,
b. Nexus 911a11 assist Sandpointo In oblaining/propering necessary oonstruetion bids,
doountants And permits,
o, Allowanco wilt be paid by Noxus to Sandpointo t'or any applicable home upo11
rcoolpt of Bona fide conslrtiollonormatorial hlvoloos,
d, Allowance shall expire 12 months following the eompfodon of the oolloroto wall
13XH1131T D
15 Ordinance Flo. HU -2060
Pays 46 of 61
roplacoment Improvements,
o. Whidow spcolf oatlons shall be establishod pursuant to paragraph 4 of ibis
Agreement,
Tail I31eniontary Loading Zone
a. Nexus shall eonstruot all Improvauonts necossary to effeohta(o 09fidflivo
Lasommit, Agroomont betwean Saita Ana Uniiled Sohool Gistriot, Nexus mid
South Goest Churob.
b, Iltnprovements to loading zone shall inolude ddvoivay approaches, *trntl'io longs on
site, striping, ohurch building ronovatiotis, poriablo olosiroom rolooatlone,
oomputor lab on school and church proporl1w, Wo, as provided for In plans
inoluded as part ofDofiul0vo Rosemont Agreoniont.
d, Pay City $240,000 for City to Implotnont a Nolghborhood TrofTto Managoment
Plan C NTMP ") to mitigate ohnn$es In Irafltc patterns or inoroased out through
Itafiio rosulting from 1hoNextis and Ooneva Conunons Projeole In tho Saudpoluto
NeIghborhood. NTMP cools shall inoludo trafiio shidios, staff limo toprooess
neighborhood traffioplan, and Iho eonsituollon of appropriate trafiflo eahtiittg
devices, Inoloding but not lhnitod to semi- divertors, diagonal divetters, raid street
olosuros, Tito implemontalloii of'tlioNPMP shall bo pursuruyt to procedures
adopted by the City Council,
5, Nexus shall pay the City tho AM cost (scgfthlbit -t) for the installation of a
Traf lo, Signal at the intersection of MaoArthur Boulevard and Airch Stroot,
p11111int SynAd YmnE nvenislltg
Utility Undor$ rounding
a, Maln Sireel — MaeAriliur to Su,tflowor
b. MaoAxlhur Main to Flower
o, Stu,flower —Main to Flower (north lido of'straot)
RXHIDIT A
Qrdtnance No. N6-2080 t
POGO 46 0161
01116 MarAlly lromtyt
1. 101 Yl, A(vrpby
2 3'/013', Alder
3. 3703 8, MW
4• 37093,Aldcr
s, a�rxs,Aten
15. , 39f78.Aldrr
7. 3731 S. Aldu
8, 3743 S. Aldo
9. 37298, tr
10, 310)S.A ce
I1, 3i0S$,AW
12, 3e09S.A14a
13. UISS.Aldt1
14. 36118. AI4a
13. 34219. Alfa
16. 9bz3 S, A14or
17, M rti. A1dor
18. 3901 S. AkW
14. 3906 S. Alder
20. $909 3, A14a
21. 142 W. Sl tvenx
29. 105 W. Sttvmu
23. 110W,St ")
24. 114 W, simo►
25, 111 W.alams
24. MW, Stevan
21. 902 W. SWms
18. 206 W.Stawns
19, aloW.stevau
30. 214 %stevfq$
3i, 392dS,'1'imDar
32. 303 W. Stavau
33. 3081Y.9tmm
34, 310W.tSlevall
35, 414 W .<t4w?k%
36. MOs.swcm
A 39}.3 8. 101A
Mau tpleres
38, 9925 8, PM4
39. 401 W.soai mr
40. 40S 1Y„ Sumflom r
41, 409 W, SunRowr
44. $01 W, SuhtlOW
43. 303 V1, SveQowa
44. 509w.smfl r
45, 511 W.SvRRotititr
MilnAttrxAn Coedsrolxlumr
46.36211 AS, farad
4q.1d32n$ Main
49.3532 C S, b(rte
I47 TBIT A -1
List of 49 Residentia I W(s
Mil oF8$elale irgnet Ibl•
YrmdaW AC,lmwnh,
. Atom6�lsinsn4Swiloarr
tbxrau to Meln}
thleks to hhis)
I ekr W Mrin)
I(4 to Alr[n)
tkf to MNlnjj -
M to Mtn)
(bcalt) to Ma(n)
tohlslm)
I ckA (t1 !flare
laatt M Mtn {n)
(NAsto M)1e)
Ada to Mrin)
to Alder
IMtksioAlsln
n (brtltilobf�
P tks (o Mal n
4 5k1 to WIN '
lcf !o Ma6t 916 b1t41ldatk4l)
.3U to brain aid M1111 Mallet)
MAO to bl'Opard Mtnl muhl
OuhlIQSun raMtt•WMInl {1ki1)
(bt , (o t(wtil Wxr)
N10 td sua0oawj}
(b.tks to filARO'.UN
faidatosunlIcA )
(Euks (0 $Vmpottrt)
IArckt to 9anRoaw)
(eldts (0 Stntllow)
(Rodli sva0owts
(4kcnls StlnRowet;
(4"U 14 mftot+w)
Odnu svoowa
ilmal 5vnnoti►l
Raatta sunllowu
(fronts sull"Olm
II Wl10 Mmin)
jrWu MI(h)
jj th rule))
Irronu MelnS
17
ordrnanoe No. NS-2660
t , gape 47 of 61
BXHIBIT 13
SCHEDULE AFNBXUS IMPROVEMENTS
Constmollon ofltcm No. I to Axhtbll A shall conform to lhefollowing sohedolet
A. Proliminary Sllo Nlwrs —D110 within Utly (30) days of Ilro Commencement Date.
c. Final Plans Due within sixty (60) days of City Approval of prolhninary Silo
Plus, togolhorwith proposed Bight= Ol:Bntry and Maintenanco Basomont for
rovfow of City And Sandpoinio.
d. Bulloing Permits, Constnicilon ltiglrl -Of Entry (Infivor of Nexus), and
Formanent Maintenance FAsomeirt for Rxiorlor of Wall (in favor of City) w
Application, right of entries and ongemonls shall bo sobinitted ne Into Zhu sixty
(60) days Door City approval of Final flans,
o, Constrl,olion Cotnnlencontont -- Within flirty (30) days after approval of Building
Pormits.
f, Constntcilon Complalo — Within ono, lruldred twenty (120) days of
commoncement ofcomiruoilon,
g. Nlloty (90) dAy plant establishmont phaso after completion o.fconslmotion of
climbing vinos slid irrigation,
2. Constniollon of Isom No. 2 to Exhibit A shall conform to tho following sohcdule:
.Final building pormlt plans shall bo submitted by indlv)duol Sandpointo
homeowners to City no later than conslruolion eomplctodato for item no. 1, .
abovo,
Cou"W11otlon snail ho completoptusuant within one, hundred tyvonly (120) days of
lssururco of City Building Ponuft,
3. ConsMtotlorr of Itom No. 3 to Exhibit A shall aonfonn to the, following sohcdule:
Nexus shall submit exeouted Doliniflve Basamont Agreoment to all panics no
later than oue huudred eighty (180) days of1ho Commencomont bate. YfNexus
fails tonncot this doadlhia, whloh may booxiondad fir ivritlna byNoxus and
Sandpolnto, then Nexus shall depo8lt$1.2,nil(lo» from tko Noxus Bsorow into it
separate oscrow with loans provldhrg Ibr Its withdrawal by SandpOnto, ivhich'ara
mutually asroonblo to all parkas, for use by Sondpollto on ofllor projeols to
bone(it tho Sandpohite neighborhood,
Nexus $hall complero 11118 ftom not later than olghtoon (18) months turn tho
8�31�axx la
Otdinence No, NS-2000 18
f ago 48 of 61.
li0111lnellco111eilt Data.
4. Nexus shall pay City for item no. 4 1013xblblt A not later tha1i approval oftho first 111181
inap for the Nexus Project, The City shall follow the Neighborhood Trafllo Management
Plan Potloy adopted by the City Counoll.
5. Constnlotlon ofZtem No. 5 to Exhibit A shat# conform to illo following scllednle!
". File City shall provide Noxtls with o preliminary estimato of this cost i01411 thirty
(M) days of tiro Conunal►comorn Dato, Thls prelunbmry es1(mato shall bo opdated,
If necessary, upon file City's reoo(pt of Nexus applioatloll to final Fury poH(on of its
tunlalive traot neap. ;said estimate shall be conclusive.
b. Nexus 811"11 pay the City tho t4hualud cost of ibis i1v1n not later iharr approval of
the first final snap for tho Nexus Projew.
Q, The City shall c0nlp141e oallstnlot(osx of thir item prior to the first corlitlo"te of
oeoupa+roy for the Nexus Projeol.
Any deadline nnrstlant to this LWilbil C trlay be oxlonded by nlulllal written sgroemonl ofNoxus
gild IIto City manager or designee.
13XHIBIT D
19
Ordame No. tNS•2eao
Page 49 of 61
BXHIBIT C
SCHi',t'1ULB FOR PUBLICLY•OWNBA 11APROVi3WNTS
1, City shall eompleto item no, 1,a. on Bxhlbll A of Ptlblioly- Owited lmprovcments not la14r
tlinnJttne�005,
2, City shall complete Jtom na. Lb. on WAR A of Publlely -Owned Luprovemonts not tutor
thatt five (5) years after the Agency provides City-wlth the than eslimaled cost oftho
projeot,
3, City 811011 eomplele,ltem no. l,o. on Mbiblt A of Publioly- Otvncd Tirnprovgmettts not later
than five ($) yoats aflor the Agency provides City with the then osiltnatcd cost of the
projeol,
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eomplotlon of thelopubllely -Owned improvotttonts (Wdoh,undercurrent law. roust bo designed
and comMictcd by Soulhem Calliemin Ildison tuld not Iho C(y) pilor to lho dales speoif (A above,
IRXHIBIT la
OcOnanco No. N8 -2980 70
Page 60 of 61 -
EXHIBIT "E"
Remaining Offsite Mitigation Measures "
The Met at South Coast Public Improvements
Improvement
New sidewalk
New driveway ( "pan" style)
Dedication for 25'x 25' comer cut-off
Sidewalk easement
Street dedication
4" depressed curb
Triple -left traffic mitigation measure,
including sign bridge, signal modification,
updated detection, and signing and striping
on both streets
Pavement Rehabilitation (minimum 2"
grind and overlay)
Installation of new public fire hydrants
Location
Property frontage on First American Way
First American Way
NIE comer of MacArthur & Imperial
Promenade
10' along property frontage of MacArthur Blvd.
60' from street centerline along MacArthur
Blvd.
Emergency access on MacArthur Blvd.
Southbound Imperial Promenade at MacArthur
Blvd
On Imperial Promenade and First American
Way along property frontage from curb to street
centerline
Along MacArthur Blvd. and First American
Way