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HomeMy WebLinkAboutVDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANYRYAN OGULNICK A-2012-133 Recorded in Official Records, Orange County AMENDED DEVELOPMENT AGREEMENT V by and between THE CITY OF SANTA ANA and VINEYARD DEVELOPMENT CORPORATION AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Dated: April 16, 2012 AMENDED DEVELOPMENT AGREEMENT BETWEEN THE 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. 1. RECITALS. The Amended Agreement is entered into with reference to the following facts: 1.1 Purpose. (1) The purpose of this Agreement is to facilitate the development of a small portion of the real property which was the subject of a Development Agreement entered into on January 4, 1988 and recorded as Document 88-260709 in the Office of the Recorder of the County of Orange (the "Original Agreement"). The Original Agreement was subsequently amended on or about June 4, 2001, by Document No. 20010429519 the Office of the Recorder of the County of Orange. The real property which was the subject of the Original Agreement is zoned by the City as Specific Zoning District No. 43 ("SD-43"). On April 4, 2005, the City entered into a Development Agreement (the "2005 Agreement") with Coastal Rim Properties, Inc. and Geneva Commons, LLC (collectively referred to herein as "Coastal Rim"). (2) A portion of the real property covered by the Original Agreement was subsequently acquired by 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, null 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 Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No. 43. (3) This Agreement will permit achievement of goals and objectives as reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all applicable Specific Plans and Specific Development District No. 43. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Agreement will allow City to realize extraordinaty 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 - Couneil Hearings. On November 22, 2004, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider Coastal Rim's application for the 2005 Agreement. 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 Conunission continued the matter to February 13, 2012. On February 13, 2012, the Planning Commission split by a vote of 3:3 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. 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. 1.7 City Ordinance. On April 16, 2012, the Council adopted Ordinance No. NS- -0 1 approving this Amended Agreement. The ordinance becomes effective thirty (30) days thereafter. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Final Design" means the final design documents for work of public art, which is set forth in greater detail in 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. J?,,Oi1- 0, L?t? , Tentative Tract Map No. Cl -0 (County Map No.(7', Conditional Use Permit , Variance No._ Zoning Ordinance Amendment No. 01' -01 (amending SD-43), and Site Plan Review No. 20111 -6 ( . 2.5 "Public Art Plan" means the conceptual Plan attached hereto as Exhibit C. The parties recognize that the Plan does not set forth certain elements of the Public Art to be installed in conjunction with this Project, including the location of the Public Art, and is therefore subject to refinement prior to the time of installation, by agreement of the Owner and the City's Executive Director of Planning and Building. 3 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Referred to Designation ation Description in Section A Property Legal Description 1.3 B Property Graphical Description (Site Plan) 1.3 C Public Art Plan 2.5 D Cooperative Agreement for Off-Site Improvements 5. 1.1 E Remaining Offsite IN/litigation Measures 5.1.2 4. GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section 8.3 below, no property shall be released from this Agreement until Property Owner has filly 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, Ryan 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. 4 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 assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty, obligation or liability to City without the written consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner tinder 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 projects, 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. Property. b. Easements or temporary permits to facilitate development of the c. Deeds of trust or other financing documents executed for the purpose of securing loans to Owner made to finance the development of the Property, and transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such deed of trust or other, similar, financing documents and any subsequent transfer by any such person or entity. 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The 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 any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from, and to the extent of Property Owner's negligent acts, omissions or 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 certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, . judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from Property Owner's negligent acts, omissions or willful misconduct in the performance of this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4.7 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest, transferees and assigns. 4.8 Relationship of the Parties, The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency or partnership. This Agreement does not create any third party beneficiary rights. 4.9 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if 6 delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6954 and, City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: VDC at the Met, LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention: Ryan Ogulnick 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, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 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 the permitted use(s) of the Property, with respect to and only with 7 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. The additional offsite mitigation measures, beyond those set forth in the agreement referenced in section 5. 1.1 of this Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement. All fiends or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said approvals, or (2) no later than recordation of the final subdivision map for the Project, or (3) issuance of certificates of occupancy, whichever comes first 5.2 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by section 5.1 of this Agreement, including without limitation: a. Regulation of the rate and amount of growth is not abrogated by the City, in that the parties agree and acknowledge that the City hereby retains the police power to provide for change in regulations, ordinances, policies, and plans relating to moratoria, building permit allocations, timing, and sequencing of development and the financing and provision of adequate public facilities at the time of development. b. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with section 5.1 of this Agreement. As used herein, "Existing Development Regulations" shall not include municipal laws and regulations that do not conflict with Owner's vested rights to develop and use the Property in accordance with this Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non-conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; (3) Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city-wide basis; and (4) Procedural rules of general City-wide application. C. In recognition of the need for City services, including but not limited to police, fire and park, to meet the demand generated by new, cumulative residential development in the City, District, Owner will not object to participation in a community facilities district, assessment district, or other similar funding mechanism, to provide fiords for such services, should any such a mechanism be established. d. No vested rights as to any requirements in this section either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5.3 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Project construction, including without limitation the facilities set forth in the Public All 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 terra 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 9 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 the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs, This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, 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-2811 adopted by the Santa Ana City Council on February 22, 2011. 5.8 Development, Construction and Completion of Work of Public Art. In consideration for the extraordinary and significant benefits set forth in this Section, the Owner has been legally vested under 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 10 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 ail for other locations within the City, in which case, Owner will not be considered in default under this Agreement. 5.8.1 Work of Public Art. Items to Be Complete Triggering Event (E.., New Use or New Area) 1. Submit Final Design of Public Art. Prior to issuance of first Building Permit or five Final design must conform to Public Art (5) years from the effective date of this Agreement, Plan. whichever comes first. 2. Install Public Art. Prior to City's issuance of the first Certificate of Occupancy for any building or structure, or the expiration of the term of this Agreement, whichever comes first. With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this Agreement within the times specified above. During periods of construction of the work of public art encompassed in the Public Art Plan, Owner shall submit to the City a written report of the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City, and shall include a reasonable number of construction photographs (if requested) taken from the last report by Owner. Development scheduling or date or times of performance may be subject to revision from time to time if first mutually agreed to in writing. Such revisions do not constitute amendments requiring further notice and public hearing. 5.8.2. Inclusionary Housing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit as a condition of issuance of each building permit. This fee shall apply to all units developed on the existing three and one-tenth (3.1) gross acres. This fee shall be used by the City for planning (including but not limited to preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated existing affordable housing in the City. Alternatively, Owner may at any time cease making such payments if it enters into an agreement with the Community Redevelopment Agency or the Community Development Agency of the City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability covenants as required by State law, 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 assesses{ at the value of $35.50 per square foot of area to be dedicated pursuant to the standard established by section 34-204 et seq. of the Santa Ana Municipal Code, as specified in said City's site plan review letter; provided, however that the fee may be increased yearly beginning twelve months following the effective date of this agreement, by the average rate of increase in land costs in the City of Santa Ana, as that increase is established by the "Construction Cost Index-Los Angeles," published by Engineering News-Record, or substitute index chosen by the Executive Director of Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance of each building permit. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of amount of the fee), and seventy five percent (75%) of said fees shall be utilized by the City in the Quadrant of the City (as set forth in the City's Park A&D Fee program) in which the Project is located. If not used or appropriated this fee shall be returned to Owner, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et seq. 5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and Restrictions (CC&R's) must be provided and approved by the Plaru2ing 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 et 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, Griffin Towers, and surrounding property zoned and/or devoted to commercial use), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (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 imposed by the Home Owner's Association to any member who violates these provisions If the Project requires a conversion from rental units to condominiums at the time of recording the Final Map, the Owner must abide by and comply with the requirements and conditions of Santa Ana Municipal Code sections 34-331, et seq., pertaining to residential conversion projects, prior to recording of the Final Map. 5.9 Responsibility 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 furnish City, upon written request, copies of contracts and supporting documents relating to the work of public art. 5.12 Conditions of Diseretionail, 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 limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865. 1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 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 detennination 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 the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon the occurrence of an alleged default, City shall give Property Owner (the "defaulting party") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the mariner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) clay cure period without cure, City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. third person. (3) Non-performance shall not be excused because of a failure of a (4) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner, unless such an activity constitutes a breach of this Agreement by the City, or the City undertakes such an activity which renders impossible Owner's performance of its obligations or exercise of any of its rights vested under this Agreement. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against City upon lawful termination of this Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, 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 15 purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within thirty (30) days following the date of default. 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 firrther obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect the release. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of 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 Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 99 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 permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the City Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Severability. If 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 fiillest extent permitted by law. 9.11 Counterparts. This Agreement has been executed in one or more counterparts, each of which has been deemed an original, but all of which constitute one and the same instrument. 9.12 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) days following the effective date of this Agreement. 9.13 Estoppel Certificate. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof The City Manager of the City shall have the right to execute any certificate requested by Owner hereunder. The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees, or other parties. 18 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Property Owner. Dated this day of JU n THE CITY OF SANTA ANA By - V--_ _ __ ----- PAUL M. WALTERS Interim City Manager Approved as to Form: By ?tl!Ut SONIA R. CAR ALHO City Attorney ATTEST: MARIA D. HUI7AR CLERK OF THP 00 CIL VDC AT THE MET, LLC, A California Limited Liability Company By 19 STATF, OF CALIFORNIA ) ) ss. COUNTY OF ORANGE } On this day of , 200_, before me, a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal, NOTARY PUBLIC STATE OF CALIFORNIA ) Ly.?s IQ j ) ss' COUNTY OF DAFT. 11 ? ) v On this day of J , before me, a Notary Public in and forgaid personally appeared L ° , pemnatty r proved to me on the basis of s tisfactor 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 named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official seal. A SAIMA BARI Commission # 1908290 z pja = Notary Public - California z Los Angeles County D My Comm. Expires Oct 15, 2014 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On ? ' before me, Date Here Insert me and itle of the Offic r ' personally appeared Name(s) of Siqner(s) SAIMA SARI Commission # 1908290 Notary Public California D Los Angeles County " My Comm. Expires Oct 15. 2014 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person whose names) is/arc-subscribed to the within instru ent and acknowledged to me that he/sh-eMtexecuted the same in his/heghair authorized capacity,0% and that by his/heLdLgir signaturp() on the instrument the personK, or the entity upo behalf of which the persory(0 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS m h nd and i al seal. Signa re Signa r N ary Public 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: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ? Individual ? Corporate Officer - Title(s): ? Partner - ? Limited ? General E] Attorney in Fact • ? Trustee Top of thumb here ? Guardian or Conservator ? Other: Signer Is Representing: Number of Pages: Signer's Name: ? Individual ? Corporate Officer - Title(s): ? Partner - ? Limited ? General ? Attorney in Fact ? Trustee ? Guardian or Conservator ? Other: Signer Is Representing: Top of thumb here 0 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT ALA" Property Legal Description REAL PROPERTY IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL. A: LOT I AS SHOWN ON EXHIBIT "B" OF LOT LINE ADJUSTMENT NO. 98.001 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 9, 1998, AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: A NON-EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS AND ACCESS, AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 9, 1998, AS INSTRUMENT NO. 19980210011 AND IN THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 15, 1998, AS INSTRUMENT NO. 19980222444, AND IN THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT AGREEMENT RECORDED NOVEMBER 11, 2004, AS INSTRUMENT NO. 2004001056213, ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A IIERE NABOVE DESCRIBED. PARCEL C: AN EASEMENT FOR THE CONSRUCTION, INSTALLATION, MAINTENANCE AND REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS, AS SET FORTH IN THAT CERTAIN STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT RECORDED APRIL 18, 2005, AS INSTRUMENT NO. 2005000291720 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. EXHIBIT "B" Property Site Plan To be inserted $911 ? g„LL Q (RaaRaRR 6 tf. ±XiLRa???RiRR4 ??de•? age:?s?? & ? ??$$a?SB?s$flae a? ;seas a?saaaaa asasssssaaasss ,;8898' 8888889@ 9Q?Q89DQBB?1948 4 3 a F F § ? g 4 .. ... A311 V9NIt11X? .......... _ ., - ................ v .9i 1" .9 W, fl ? i W i I 9 - a d ' 1 1 ? m i I ? .o•stz - - - - - - - - - - - - - EXHIBIT B Detailed Site Plan Pending EXHIBIT "C" Public Art Plan Public art valued at one-half of one percent (0.5%) of the total Project building permit valuation is required. Public all shall be comprised of a single art piece or grouped art pieces to be placed at a final location to be determined as specified in section 2.5 of this Agreement. The public art should invite participation and interaction, inspire, add local meaning, interpret the conrlnunity by revealing its culture or history, and/or capture or reinforce the unique character of the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public art approved by the Planning Commission in the Public Art Plan shall be completely installed as provided in section 5.8.1 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. 6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the project site and may not be removed without the approval of the Planning Commission. 7. Expenses Not Allowed from Art Allocation i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees. iii. Landscaping around a sculpture that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. v. Lighting elements not integral to the illumination of the art piece. 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 COOPERATIVE AGREEMENT FOR OFF-SITE WROVBMBNTS THIS Agreement is entered Into this day of-, 2405, by and between the SANDPOINT13 N13IGHBORHOOD ASSOCIATION, INC., a California, non-profit publio henefit and federal 501(e)(3) corporation ("Sandpointo"), the NEXUS DEVELOPMENT CORPORATION/CBNTRAL DWISTON, INC. A California corporation raid'f ie Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"), COASTAL RIM PROPERTIES, INC., a California corporation CVenovn Commons"), the COMMUNITY REDEWLOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corpordte and politic (ihe "Agency"), and the CI'T'Y OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (tile "City"). K'ITN) SSBTH A. . Nexus has proposed constructing at Hutton Center a five level residential condominium project, Wo 23-residential level condominium high-rise and one 24-residential level condominium.(for a total not to exceed 835 condominium wilts), together with ancillary retail tiot to exceed 14,000 square feet (the "Nexus Project"). B. Geneva Commons has proposed constructing at the northeast comer ofMackthur Boulevard and Imperial Promenade an approximately 278-u nit condominium project consisting of an 18-residential level high rise project and an eight-story building, together with ancillary retail (tho "Geneva Commons Project"), C. Sandpointe Is a non-profit corporation that sorves as a conduit between the Sandpointo Neighborhood ("Nelgliborhood") and outside community and politioal Interests, Sandpointe Neighborhood is a residential neighborhood of singlo family and some nnulti-family homes in the southeast portion of Santa Ana. The SandpointeNoighborhood consists of approximatoly 800 residences. Sandpointe does not have the authority to bind any individual resident of the SandpoinieNeighbor}rood. D. The Agency is a community redevolopnmeit agency, as that term is defined in California Health & Safety Code § 33100. In 1982, the Ageney created the South Main Redevelopment Project Area ("Project Area"), and Nexus and Genova Commons aro located within the Project Area. I;. Sandpointe has identified certain physical Improvements needed In the area of the Neighborhood that am necessitated by or would in some way offset the unpaot of the two development projects. Nexus and Geneva, Connnons desire to contdbuto towards tho cost and/or construction of those improvements to the Sandpointe neighborhood in addition to and to EXHIBIT D Ordinance No. NS-2680 t Page 30 of 61 supplement the Mitigation measures acid conditions of approval imposed by die City of their respcolivo developments, Those Improvements are set forth in Exhibit A, attached hereto and inado a part hereof by this rclterence ('Ifmprovomente ). F, The Agency is willing to assist in the finiding of the improvements but only from a portion of the tax inorcmonl actaally generated by the Nexus and Ceneva Commons Projects and to fluid specified improvements that would reduce blight and benefit the Project Area. 'G, The City's participation in this Agreemont is limited to coordination of funding and/or construction of certain, horoin specified publicly owned improvements, Ii, Noxus has agreed to constnict some of the improvements, and pay for the construction of others, as more filly set forth below ("Nexus Improvements). Geneva Coninions has agreed to pay for a portion of the Nexus Improvements, NOW, T1112REFORE, the, parties hereto do mutually agree as follows. SCOPE OF WORK A. Nexus shall eoitstruct and/or fluid the improvements identified as "Nexus Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit E to this Agreoraont, oltaclied hereto and Incorporated herein by this roforonco. Nexus shall be entitled to foil use of duo fluids deposited in the Nessus Fscrow to undertake the Nexus Improvements, B, In consideration for Nexus' agreement to construct and/or fund the Nexus Improveuttont, Gcnava Commons agrees to contribute a sum, equal to its pro-rata share of residential units between itself and Nexus (which is currently twenty-five percent (25%) piusuant to those numbers see forth in sections A and B of the Recitals above) of the cost of duo Nexus Improvemcnts, towards due cost thereofpayable at the time called for below, Notwithstanding the foregoing, if Nexus has•not executed this Agreement prior to the date this Agreement becomes binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day upon which this Agreement has been executed by Geneva Commons, the City; tho.Ageney and Sandpointe), then Geneva Cornmotns pro-rata share conhibAniion to the Nexus Escrow shall be conclusively fixed at twenty-five (250%) regardless of the actual number of residential turns approved for it and Nexus. C. If the entire Nexus and Qeneva Commons ProjooA are eominioted, Agency shall muse the consirucNon of die Improvements identified as "Publioly-Owned Improvements" hi Exhibit A hereto according to the schedule sot forth in Iixhibit C to this Agreement, attached hereto and incorporated herein .by this reforeneo. Tho parties acknowledge and agree that the total cost of the publicly owned Improvements, including studles, design and overhead , shall not exoeed Five Million Dollars ($6,000,000.00), EXHIBIT D Ordinance No. NS-2680 Page 31 of 81 2, COMPENSATION AND lViMOD OF PA'YMBNT A, Nexus shall, within sixty (60) days of oxevution oftlus Agreement, open an escrow account at First American Title Insurance Company, 2 First Attteriean Way, Santa Ana, California, or an equivalent escrow company approved in advance by Cleneva Convnons and Sandpointo, for deposit of lends to be used to ray for the Nexus Improvements (referred to herein as tho "Nexus F-scrow"). B. Sandpointo shall deposit $1,400,00 into thoNexus Escrow on tho Escrow Submission Date no later than Hie dnte the of the first payment made piquant to paragraph 2.D, of this Agreement, C. Prior to the deadline specified in paragraph 2.D, of Us Agreement, Nexus and Genova Commons shall meet and confer In good faith to Agree upon the estimated cost of dto .Noxus Igtprovemonts. If, of any limo, either Gcnova.Conimt ns or Nexus determines that such agreement is not possible, then the objecting party shall submit its dispute in writing, together wilt? any evidence upon which'it roller to the Executivo Director of the City's Public Works Ageney and rho other party , Within ilileon (15) days of its receipt of said notice, the non•objectlng party shall then have flftcen (IS) days to submit any response it has to the City and the objecting party, Tho Executive Director of the City's Public Works Agoncy or design co shall then, within thirty (30) stays of receipt of the response, if any, or the expiration of said deadline, inform both Gonova Commons and Nexus in writing of the final determination of the estimated total cost, wltioh all parties agree shall be conclusive and binding upon both Nexus and Geneva Cotnnions. Thoreafler, Nexus and Geneva Coimnons shall deposit their respective shares of the estimated cost ofihe. Noxus Improvements as set forth in paragraph 1,13. of this Agreement, less $1,000,00, into the Nexus Escrow no later than rho data specified in paragraph 2.D, of this Agreement. D. Nexus shall pay into thoNexus Escrow no later than (1) the date tho first building permit is issued by the City for the Noxus Project, or (ii) a date tunety (90) days alter the issuance of enlitlemenis to Nexus, provided no litigation or referendum petition challenging Noxus has been filed and solved on the City, whichever comes later. Geneva Cointnons shall pay into (fie Nexus Escrow no later than (i) tho date tho first building permit is issued by the City for the Oeneva Conunons project, or (ii) a date ninety (90) days afftr the issuance of entitlements to Genova Commons, provided no litigation or roferondum petltlort challenging Geneva Cornmons has been filed attd served on the City, whichever comes later, BXI-l1BIT D Ordinanos No. NS-2680 Page 32 of 51 E, The Agency shall pay the City its cost incurred by the City for tho Publicly-ONviied Improvements set forth in B)tlubit A to this Agreement; provided, however that total Commitment by the City and Agency toward the publicly-Owned Improvements shall not axceed FIVE MILLION DOLLARS ($5,000,000,00), If the items sot forth as Publicly-Owned Improvcmonts in Exhibit A are found to cost mare than this sum, (lien Tito Agency shall, in the exercise of its sole and absolute discretion, limit or eliminate Publicly-Owned Improvenients set forth in Exhibit A; provided, howover, that the Agency shall proceed with the Publloly-Owned Iiiiprovetnetnts in the order as set forth in said Bxlu'bil. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS A, Nexus shall prepare and submit construction drawings and related documents for items listed on Exhibit A to die City for roviow (Including, but not limltcd to, architechirah review) and written approval as and at (he times established In the Schedule of Pcrformanee set forth in Bxhibit B to this Agreement, The constnietlon drawings and related doctunonts shall be submitted in two stages:- (1) the Preliminary Site Plans and (ii) Final Site Plans, B3 During the preparatlon of all drawings and plans, City staff and Noxus shall hold regularprogress meetings to coordinate rho preparation of, submission to, and review of . construction plans and related documents by the City. The City slatTand Nexus shall communicate and consult informally as fiquenl ly as is necessary to insure that the fonnal submittal of any documents to the City can receive prompt and speedy consideration, C. Any revision or correction of plans required by the City shall be deenied approved by the Agency, Geneva Commons and Sandpointe, D. Neither (tie City, tho Money, Sandpointo or Goneva Commons shall have any ownership Interest in, or any right to use, ilia Preliminary Site Plans or the, Final Site plans submitted by Nexus, nor shall the City, the Agenoy, Sandpointe or Oeneva ConunQns authorize the right to use any iuoh plans or drawings to any person or entity. APPROVAL OF WXUS PLANS, DRAWINGS AND RELATED DOCUMENTS A. The City shall have the right of reasonable review (Including, but not limited to, architectural roviow) of all plans, drawings and related documents including any proposed changes therein, The City shall approve or disapprovo such plans, drawings, and related (acid any proposed changes therein) within the times established hi die Schedule of Perfoimanco sot forth In Exhibit 13 hereto. Such approval shall not be unreasonably withheld. B. Any disapproval shall slate in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of the Pinal Plans if the l inaI Plans do not conform to the Approved Plans, the approved Preliminary Plwis or do not conform to Whlbit A to this Agreement, or aro incomplote. EXHIBIT D d Ordinance No. N5-2880 Page 33 of $I C. The City shall state in writing the reasons for disapproval of the Final Plans within sixty (60) days of receipt of copies of such Final Plans. Faihrre to respond within this sixty (60) day period shall not be grounds for rosubmittat. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawhrgs or related documents in a inannor that reasonably satisfies tho rmotis for disapproval and shall resubmit such revised portions to the City as soon as possible aftarreccipt of the notice of disapproval. Plans, drawings, and related dootunents receiving City approval shall not bo subsequently disapproved. Nexus shall ensure that all of Its plans, drawings and related documents comply with all Goveniniental Requirements. 5. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS IWROV13MENTS a. Nexus shall construct and/or fend, idilizing the Nexus Escrow, the improvements in. confortuance with Exhibit A to this Agreomont and the approved Final Plans. To the extent that the cost of tho Nexus Iniprovetnents, constructed In conformance with Bxhlbit A to this Agreement and the approved Final Plans, exceeds the funds in tlto Nexus Morow, Nexus and Genova Commons shall be solely responsible for said costs, with each responsible for any additional cost to the same percentage as Is set forth In paragraph I.D. of Qds Agroement, Noxus shall complete or Rind, as the case may be; the construction of the Improveinonts in, conformance with the schedule sot forth in Exhibit B to this Agreement, b. The parties aeknow]Wge and agree that tho Blook Wall Identified as Item No. I our Exhibit A will be constructed qn the propctties of dozens of individual homeownots in tho Sandpointe neighboritood, none ofwhom are parties to this Agreement, The parties agree to use their best efforts to obtain permission of each of theso individual prolrouty owners to construct this Block Wall and to permit the City to permanently maintain the climbing Ivy along tho exterior of tluc wall, Nowever, It Is the parties undorstanding and intent that should any property owner refuse to agree to pernnlt the constxuctlor and/or extorior ivy maintenance ("hold outs), that the Block Wall will be constructed regardless of arty holdouts, and that Noxus shall construct the Block Wall in such fashion as to join Qho Block Wall to existing wall segments owtted by hold outs said minimize airy rnogativo aosthotic impact caused by such hold outs. Nexus agrees to hold Sandpointe. and its officers, directors, employees and agents lramiless from any claim by any and all property owners including such holdouts arising out of the construction of the BlockWall in which Sandpnhtte, or its officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to defend Sandpointo at the oxponsc of Nexus. In the event of a potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees and costs of independent counsel selected by Sandpointe for defenso of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. EXHIBIT D Ordfnancs No. NS-2680 5 gage 34 of tit 6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMBNT.S Upon the issuance of a cerlificatc of occupancy pursuant to the California Building Code f& 0) ail residential units in a minimum of two of the three high-rise towers in the Nexus Project, raid (R) all residential. units in the Genova Commons Project, the Agency shall give the City a notice to proceed to design and construct pia PubliolyOwrnad lmprovements as set forth In Bxhibit A, If only a portion of the residen#ial-units have been constructed witlun five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement, The Agency's obligation to pay for the Publicly-Owned Improvements, and the City's obligation to complete these Publicly-Owned Iniprovomonts, or any part thereof, shall be limited by the Agency's ability to hard said work ftom the project-speoifle tax increment goncrated'by (lie Nexus Project; provided, however, that City and Agency shall construct item no, La, on the list of Publioly-Owned Improvements in Exhibit A to this Agreement regardless of die project-speclfio tax increment recelved by the Agency, COMMEN'CPMBNT AND COWLIVION OF CONSTRUCTION OP PUBLICLY OWN13D IMPR.OVBMf3NTS a. City shall construct the Publicly-Owned hnprovemonts Ir conformance with the schedule set forth In Exhibit C to this Agreement and the approved final Plans; provided, however, that the Agency and City shall havo no obligation onco the cost of the Publicly-Owned Improvements exceeds Dive Million Dollars ($5,000,000.00). If the cost of the Pubiioly-Owned Improvements, including all design, administrative and construction costs exceed $5,000,000,00, their the City shall eonsinict only that portion of the Publicly Owned Improvements m specified in Exhibit C in tine exercise of the Agency's solo said absolute disom ion, b. City shall, at the conclusion of the plant establishment phase specified in Exhibit 13, additionally maintahr the climbing vines and irr€gntlon eonstrueled by Nexus along the outside of the block wall, referenced In item no. I on Exhibit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a fagade easelnent with !ho City In a form approved by the City Attorney permitting the City to maintain said climbing vines and indonuiifying the City from any liability caused by said olimbing vines and/or irrigation, Sandpohite. shall be responsible for obtaining signatures from these Individual homeowners, LIABILITY AND IND13MNIFICATION DURING CONSTRUCTION; BODILY INJURY AND PROPERTY DAMAGE INSURANCE A. From and after tho Effective Date, Nexus and Geneva Commons agree to and shall indemnify and hold Agency, City and Sandpointe, and their respective officers, direotors, agents acid employees harmless from and against all damages to praporty or injuries to or doatir of arty parson or.persons, inoluding employees or agents of Agency or City, and shall defend, indemnify EXHIBIT D h Ordinance No. NS-2880 Page 35 Of 51 and Savo Agoncy, City and Sandpointo, and their officers, agents, and employees, from any and all claims, demands, suits, actions, or proceecihigs of any kind or nature, including, but not by way of limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting front the negligent or wrongful acts or-omissions of Noxus or Geneva Commons or their raspective employees, agents or subcontractors. For itsolf and no other, Sandpointo agrees to hold liminless Agonoy, City and their respective officers, directors, agents and employees from and against all damages to property or injuries to or death of any person or persons, in any way resulting from the negligent or wrongful acts or onilssions of Nexus or Geneva Commons, or their respmfive employees, agents or subcontractors. This Agreement shall not be interpreted or construed to obligato Sandpointe, its otfleors, directors or agents, or the Neighborhood to defend, Indemnity or to answer in any way for the Agency flit City or tlrtir raspective officers, directors, agents or employees for such claims, 13, Prior to the commencement of constntction, Nexus br any other party working within the real property of the City or Agoncy, shall obtain at its solo cost and file with the City acid Agency, and maintain for the period covered by tills Agreement, a policy or policies of liability insurance or a cortifieate of such Insurance, consistent with this Agreement, naming Agency, the City and Sandpointe, their officers, directors, agents, and employees, as insured or additional insured, which provides coverage not less than that provided In the form of a comprehensive general liability Insurance policy against liability for any acrd all claims and suits for damages or injuries to persons or property resulting f9om or arising out of operations of Nexus, Its officers, directors, agents, or employees, Said policy orpolioics of Insurtuioe shall provide coverage for both bodily injury raid property damage In not less than OneNfillion Dollars ($1,000,000) combined single limit, or its equivalent, Said policy or polioias shall also contain a provision that no termination, cancellation, or chmigo of covoragc of itisured shall bo cffCctive until after thlrty (30) days notion thereof lifts been givon in writing to City slid Agency. Nexus shall give to Agency and City prompt and timely notice of claim made or suit instituted arising out of Nexus operations hereiuider. Nexus may procure and malatain, ut its own cost and expense, any additional kinds and amounts of insurance, which in Its own judgment may be necessary for its proper protection in the prosceution of the work. All insuranec policies sliall be written by responsible and solvent insurance companies and shall include an additional insured endorsement in substantially the form of Exhibit D, attached hereto and incorporated herein by this reference 9. COMPLIANC13 WJTfl GOVfsTtNly ENTAL REQUIREMENTS, Noxus shall carry out the design,.consinie(ion, and operation of the Nexus Improvements in substantial conformity wIW ail applicablo laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, lire Stato of California) trio County of Orange, the City, or any other political subdivision in which the Property is located, and of airy other political subdivision, agency, or instrumenlolity axerclsing jurisdiction over the City or Noxus, including all applicable federal, state, and local occupation, safety and health laws, rules, regulatione and standards, applicable state and labor standards, applicable prevailing wage requirements, Oie City zoning and development standards, City permits acid approvals, building, plumbing, mechanical EXHIBIT D Ordinance No. N&2680 7 Pago 30 of 61 and electrical codes, and all other provisions of the City and its Municipal Code, and all applicable disabled and handicapped access requirements, Including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 el seg., Goverrnneii(Coda § 44$0 et seq., and the Umdt Civil Rights Act, Civil Code § 51 of seq, C Covernmental Requirements"). 10. DEFAULTS AND REMEDIPS If any party defaults In performance of its obligations, covenants or agreements hereunder, the defaulting parry shall by entitled to cure the defatilt ill accordancei0h this section. The injured party shall give written notice of default to the party in defliult, specifying the dofault complained of by the iii urcd party. Delay in giving suoh notice shall not constituto a waiver of any default tior shall it change the time ofdofault. Tho defaulting party trust, within thirty (30) days, following scrvico of said notice, conmzonce to cure, correct or remedy such railtire or delay and shalt complete such cure, correction, or remedy with reasonable diiigonco, 11. INSTITUTION OIL LEGAL ACTIONS Subject to tho provisions of Seotion 13. hereof, tit addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy aq default to rceover damages for any dofault, or to obtain any other remedy consistent with the purpose of this Agt'centont, 12, APPLICA.BI.,B LAW This Agivemont attd 811 questions relating to its valldtty, interpretation, performance, and enforcement shall be governed and eonstmed in accordance with the laws of the State of Californla 'T`his Agreement has been executed and delivered in the State of California and the validity, itttetpretation, porfonnance, and enforcement of any of the clauses of this Agreement shall be datorntined and govented by the laws of Cite State of California. All parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of thls Agreement. 13, RIGPITS AND REMEDIES A" CUMULATIVE. Except with respect to rights and remedies expressly dcolared to he oxolusive in this Agreement, lite dg}tts raid remedies of tiro pariles are etuttulativo and the exercise by either party of one or more of such rights or remedies shall not prealudo the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. EXHIBIT D R Ordinance No. NS-2880 Page 37 of 61 14. DAMAGES In tite ovottt that the Agency or City is liable for damages to Nexus, Sandpointe and/or Ceneva Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva Commons in the perfortnatnco of this Agreement and shall not-oxtend to compensation for loss of fithtre Income, profits or Mels, 15, NOTICES, DEMAND AND COMMUNICATIONS Formal notices, demands and conntnWeatlons between the patios shall be suffloiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to theydnclpal offices of the Agenoy wld the Developer ns designated below. Such written natless, demands and communloatlons may be sent in tho same manner to such other addresses as either party may from timo to timo designate by mail as provided in this motion, City: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M-20 Santa Ana, CA 92702 Atht, Steve Yarding, I3xecutiva Director Phono; (714) 667-2740 Fax: (714) 973-1461 tiv€th copy to; City Attorney 20 Civic Contor Plaza, M-29 Santa Ana,'Callfornla 92702 Agency: Community Development Agency City of Santa Ann 20 Civic Center Plaza, M-25 Santa Atta, CA 92702 Attn:.Patricia C. WM(aker, Executive Director phone: (714) 647-5360 .Pax: (714) 647-6549 With copy (o: Agenoy Goneral Cow)sel Community Redevelopment Agency of the City of $anta Ana 20 Civic Centor Plaza, M-29 Santa Ana, California 92702 EXHIBIT D Ordinance No. NS-2980 9 Page 38 of 61 Sandpointe; Sandpointe Neighborhood Association, Inc. P.G. Box 27122 Santa. Alfa, Cnliforrria 92799 Attention: 13ob 13iack Nexus: Nexus Dovolol>mastt Corporatlorr/Centrai Dlvislon, 'no- The Grand Plarr 2 1 MacArthur-Place, Suite 300 Santa Ana, California 92707 Allentidn: Cozy W. Alder Geneva Commons: Coastal Rim Properties, Inc. 13913ast Alton Avenue Santa Ann, Califomin 92707 Attention: Franco Mola A party may change its address by giving notice In writing to the other parties. 't'hereafter, any notice, tender, demand, delivery, or other communication shall be addressed and trnrrstnitted to the now address, If sent by mail, airy notice, tender, demaud, delivery, or other communication shall be effective or doomed to have been given three (3) days after It has been deposited in the United States mail, duly registered or certified, with postage prepaid, acrd addressed as set forth above, It sent by facsimile, any rto ca, fonder, demand, dol"rvory, or otltcr communication shall be offeotive or decnted to havo bwn given twenty-four (24) hours after the time set forllt on tltc transmission report issued by the transmitting facsimile machino, addressed as set forth above. For purposes of calculafing these time frames, weekends, federal, stale, County or City holidays ball be exehuded, EXHIBIT D in Ordinance No. NS-2680 Page "of 61 16. ' EFFECTIVE DATE AND TBRM Ol+ AGRBEMBNT This Agreement shall take offeat from and after the date of adoption and approval by the City and the Agency pursuant to. oMolel action oftho governing bodies thereof and shall he effeotive until completlon and acceptance of the Noxus-Improvemenis and Publiely-Owned Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva Conunons shall take over Nexus' obligations to construct a portion of the Nexus improvements under this Agreement, but shalt be required to (i) meet slid confer with the Agency and Sandpointo, and using the order of tlroNexus Improvements specilled in ExhibitA as a guide, designate, wluch of the Nexus Improvements shall be constructed using Geneva Commons twenty-five pereent (25%) share of the estimated cost of the total Nexus Improvemonts, and (ii) the parties agrcjo and acknowledge that all re arcnccs }tcreiu to Nexus sltall'bo deemed to be roferences td Genova COmn ens, IfNoxfts is approved and Geneva Commons is not, then Nexus, tho Agency and Sandpointe shall meet and confer in good faith, and using the order of the Nexus Improvements specified in Bythibit. A as a guide, designate which of thoNexus Improvements shall be eortatrucled using Nexus sevcnty-five percent (75%) share of the estimated cost of the total Nexus inrprovome,M. 17, COMMENCEMENT DATE . For purposes of lies Agreement the town "Conunenccment Data" shall refer to the period after lssuanee of City entitlements and shall be deemed to be a date fxlnety (90) days after the issuance of entitlcmcnts to Nexus and Geneva Commons (whichever comes later), T'he Conunencement Date shall be tolled should a valid raferondum petition be presonted challenging either project, or timely litigation be filed and served challenging any oftho entitlements, including approval pursuant to the California Environmental Quality Act. 18, INTEGRATION This Agreonrew integrates all of the torms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreomont betwoon the parties with roepoot to all or any the matters addressed horoln, All waivers of tho provisions of this Agreement must be in writing and sighed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by (lie appropriate authorities of the parties, 19, ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agrcgtnerrt, in whom, to any person, entity (public or private), partnership,, John venture, firm or corporation who is the owner of the real property referenced in tho Recital hereto at any time during the term of this Agreomen, provided, however, the rights of Nexus or Geneva Commons under this Agreement may not be transferr$d or assigned unless the written consent of the City. Council is first obtained and any transfer or assignment of the rights under this Agreement shall Include In .EXHIBIT D Otdlnanoo No. NS-2680 t 1 Page 40 of 61 fie City grants written consent to transfer the rights, Not shall iharights of Nexus or Oeneva Commons hereunder be subject to assignment by attachment, executlou, or proceedings under any provision oftho Aankruptoy Act, Ud 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 Couneil, Such transfer or Assignment shall not relieve Nexus or Geueva CQnunons of Guy duty, obligation or liability to City without the consent of the City, wring tiro tarru of this Agrwinant, any approved assignee or transferee of the rights undee this Agreement shall observe and perform All of the duties and obligations of Nexus or 0oneva Commons contalrxed in ibis Agreement m such duties and obligations pertaw to the Nexus or Geneva Commons. Any and all approved successors Grid ossigneos of Nexus or Gonp,va Comtrtons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geueva CoMnrons onder tbfs Agreement, if the Property is subdivided, any subdivided parcel may be sold, mortgaged, bypotheeated, assigned, or transferred to pexsotrs for development by them. Upon assignment or' transfer of the rights of Nexus or Geneva Commons under this Agreement, fho obligations of the assignor anti the transferee or assignee shall be joint and several. W WITNESS WMRBOP, the parties hereto have executed this Agreement tiro elate and year first above written. SANDPOINT8 Nfb1011laaiMOOD, ASSOCIATION, WC. By? Name Tts ??'`l_lRllti/ ?? NEXUS DEVELOPMENT COItW ATION/ CBNTRAL DIVISION, INC, By Name Its 12 Ordinance No, 1431080 Page 41061 Il?e City grants witterz consent to transfer tha rights. Not shalt the rights of Nexus or Genova Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Banktuptcy Act, and tiny such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto bo obtained from tho City Counnil. 'Such transfer or assignment shalt not relieve Nexus or geneva Commons of any duty, obligation or )lability to City without the eonsont of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties an([ obligations of Nexus or Gcneva Commons contained itx this Agreement as such duties and obligations pertain to the Nexus or Geneva.Commons. Any and all approved successors and assignees ofNexus or Oetteva Commons shall have, all of the satno rights, benofits, duties, obligations, and liabilities of Nexus or Geneva Commons under Oils Agreement; If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypotitecated, assigned, or transferred to persons for development by them. Bison assignment or transfer of the, rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignor shall be joint and several. IN WITNESS WHEREOF, Otte parties hereto have executed this Agrcoweitt the elate slid year first above writien, SANDPOINTB NEIGHBORHOOD, ASSOCIATION, INC. By .,.. Name Its NEXUS DBVELOPWNT CORPORATIONI Cl?NTRAL DIVISION, INC. By -©e. --?. Nance Its 0(dinance No. NS•2080 12 Paga 42 of 61 ATTEST: COMMUNITY D8VLLOP12tWNT AGENCY OF T 11B CITY OF SANTA ANA By - - Patrloia B, Hoaly Patriola C. Whitaker Secretary ofAgoney Executive Director APPROVED AS TO POW- losoph W, Fletcher Agency General Counsai ' }?XH3BIT I? Ordinance No. NS-2660 14 Page 44 of 61 EXHIBIT A OFF-SITE 1MPROV13MENTS Block Wall a. Main Strcct between Mutphy & Sunflower, and howo loontod at 101 W. Murphy b. North side ol'Sunflower botwoon Main & allay adjacent to four plexcs, oxoluding sections of wall at eornor of Main & Sunflower at rear of comrnerclal building e. PJaster and paint with one, color selected by Association d. $3,006 per house payment for repair/replacement of landscaping associated with wall Improvements upon execution of Nexus right-of entry for construolionand extorlor-wall mointenanco easement. This payment shall bo ma& by Nexus at the thno the individual property owner executes the, construction easeutont in favor of Nexus and permanent maintenance easomont (for the climbing vhtes) in favor of the City. For any "hold nuts" (as defined in paragraph 6.b, of this Agreement, Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out, o. Remove and replace 16 sections of white conereto block wall in immediate area of MacArthur Boulevard and Plower Slrect, and paint with ono color selected by Associatloo, f, Remove mid roplaco A sections of white concrete block wall along West Alton Avenue and paint with one color selected by Assooiatiom g. Nexus shall install climbing vines, species Identified by the City, along rho outer edge of the wall, install irrigation to feed said ellmbing vines which shall be cormce(ed and metered by Nexus at file nearest City water supply, and shall reconstruct the sidewalk to tho City's speoifleations after installation of the irrigation lines and blook wall, h. Wall replacement specifications shall be established pl=iant to paragraph d of this Agreement. L Nexus shall maintain, and replace as necessary, the olimbing vines during a ninety (90) day plant establishment phase following ltam no, l,g. 2. Window Replacements a. Nexus shall provide $3,500 construction allowance por houso for sound proof window repincements for up to 49 residential units located along Malt) Street and Sunflower Avenue behind the existing cortcroto well to be replaced. The 99 residential units are identified in Exhibit A•1 to this Agreement, b. Nexus shall assist Sandpointe in oblaining/prepadng necessary construction bids, documonts and permits. C. Allowance will be paid by Nexus to Sandpointo for any appllcablo home upon receipt of bona fide construction or material invoices. d. Allowance shall expire 12 months following lho eornplotion of the conorote wall EXHIBIT A 15 Qrdlnance No. W3.2680 Page 46 of 61 replacement improvements, e. Window specifications shall be established pursuant to paragraph d of this Agreemen(. 3. Tail Elementary Loading Zone a. Nexus shall construct all Improvements necessary to effeotuatc Definitive Easement Agreement between Santa Ana Unlfied School District, Nexus and South Coast church. b , ltnprovements to loading zone shall inoludo driveway approaches, traffic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, etc. as provided for in plans included as part of Definitive Easement Agreement. Q. Pay City $200,000 for City to implement a Noighilvrhood Traffic Management Plan ("NTMP") to miflgate ohan$es in traffic patterns or increased cut through traffio resulting from the Nexus and Geneva Commons Projects in the Sandpoh to Neighborhood. NTMP costs shall inoludo traffic shtdlos, staff time to process neighborhood traffic plan, and the construction of appropriate traffic ealmitig devices, including but not limited to semi-diverters, diagonal diverters, and street closures. The i?ttplementation of tlio NTMP shall bo pursuatt to procedures adopted by the City Council. 5. Nexus shall pay the City the Rt11 cost (sco )WAbit }3) for the installation of a Traffic Signal at the Intersection of MacArthur Boulevard and Birch Street. P1111111'. y"nwnpd 1(mnmm me b Utility Undergrounding a. Maitt Street --MacArthur to Sunflower b. MacArthur Main to Plower o. Sunflower- Main to Flower (north side of street) EXHIBIT J) Ordinance No. N$-2980 16 Page 46 of 61 EXIMIT A-l List o(49 Residential Um s StnY1d ParAltyll'aMgr 1. 141 W, b(vtpby 2 3701 S, Atria 3, 3703 0, Atria d, 3709 S. Alder S. 3713 S, Aldan 6. - 3417 S. Alder 7, 37215. Alder 8. 3M S. Alder 9. 3729 8. Mar 10, 32013, Alder 11, 336S 3, Alder 12. 3809 S. Alder 13. 3313 S. A1du 14. 3614 s. Aid" 13, Jag) S, A)dv 16. 3623 A1dcr 17. 1829 1. A1441 18. 3901 S. Akin 19. 3905 S, Atdcr 20. $909 8. A Mir 21, 102 W Mtvtm 21. lob W. Siavuu 23. 11 a W, S N"s 24. 114 W. Stavais 25, 118 W,S14'+T a 26. 122 W. ftAw 27. 202 W.Sbsvens 24, 206 W. Stevens 29, 2to W.Stovats 30. 114 NY.5ttiww Al. 3926 S, 7rmt a 32. 303 M S w au 31 306 W. Stow 34. 3 10 W. $tcvdss 33, 314 W. 6" m 36, 31$ S. Sid" 37. 3912 S. 8lmh List ot41101bto hones ft Window Replaatsncrb' Almi;Ysin and Swwilori er (stria to M,tn} (IxA 1 to Main) (hula to lritf,t) (4scks two MaGs) (" to hip D) (btttk-t Vs Main) (bac)u to Main) (bida to Main) (backs to Mein) (baciut to Milo) (biv Main (books to Main) (a44h to Main) (brio m Min) (badui to main) (fucks to A1dcr) (M44 to MAN) (back.:. to Win) P cics to Main) mm to b(oln) (backs to Main strd MlnlMarkN) (bock! to Maln and Mini Mafia) (barks to hiafv OA Mini Mrrkcl) (tssr3cs to Sunnower mJ Mint Mtrkv) (facia to SUnngwa) (backs to Surtfiacw) (backs to bllnnacxij (bade to 3mttourx) (bit-vi to $unlimt) ft>,scks 1n,9vnno>titcc} (01jo to sullawm) (backi to SUrtflo+tier} OvAtaSvn(la or) (bec)rrc to Sunnovts (backs to Svntro+na (bads: to Sun{fotvcr} (WAs to sunnm w) Abarptexa 38, 9925 6, Rags (A Ides to Sunnower) 39. 401 W, San now (r'rmu Sommer) 40. 40S W, Sumf1mm (rlvnts sunflower) 41. 409 W. SunAo%wr 4ol, Stmnowv) 41. $01 W. Sunflower Frosts Svnilatvtr 43. 303 W. Sunflower I fronts 5vnnlwtf 44. $99 W.3votlo5,v r1atW sunflower 49. MAW.Sunnoucr (lromsSUnnotver hfa(nAtirxctton Conddmlxtunu 46.3621) AS, Wain (:trios to bittn) 47.3632 AS. Main (fmnis Main) 40.36321) $. Main llonts brain) 49.3632 t: S, Wn, {fronts Main) 17 Ordinance No. NS-2680 , Page 47 of 61 F,XHIBIT )3 SCHBDULE OFNBXUS IMPRQVBMBNTS 11 Constntction of Item No, 1 to Rxhibit A shall conform to the following schedule; a, preliminary Site plans - Uuo within thirty (30) days of tho Commencement Date. C. Final Plans - Due within sixty (60) days of City approval of Preliminary Site flans, together with proposed Right-Of--Bntry and Maintenance Basement for revlew of City and Satidpointo, d. Bulloing Permits, Construction Right-Of--Bntry (in favor of Nexus), and Permanent Maintenance Basement for Exterior of Wall (in favor of City) - Application, right of entries and easements shall be submitted no Into titan sixty (60) days after City approval of final pies, o. Constmolion Commencement - Within thirty (30) days after approval of Building POr1111t3. f Construction Complete- Within ono hundred twenty (120) clays of commoncoment of construction. S. Ninety (90) day plant establishment phaso after completion ofconsintotion of climbing vines and irrigation. Construction of Item No. 2 to Exhibit A shall conform to the following sohcdule; a, Final building permit plans shall be submitted by individual Sandpointe homeoNvaicrs to City no later than construction complete date for item no, 1, above, b, Constntotion shall be complete piusuant within one, hundred twenty (120) days of Issuance of City Building Pecnnit. 3. Construction of Item No, 3 to Exhibit A shall conform to the following schedule: Nexus shall submit exeeuted Definitive Easement Agreement to all partles no later than our hundred eighty (180) days of the Commencement Bate. If Nexus fails to meet this deadline, which may be extended in ivrlting by Nexus and Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Eserow into a separate escrow with terms providing for its withdrawol by Sandpointe, Milch are mutually agreeable to all parties, for use, by Sandpointe on other projeots to be?te[it the Sandpointe neighborhood, b. Nexus shall complete this item not later than eighteen (18) months from tho EXHIBIT D Ordinance No. NS-2880 t R Page 48 of tit. Conumencoslient Dato. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of tho first final snap for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Council. 5. Constnretion of Item No. 5 to Lxhibit A shall conform to the following schedule! a, Tire City shall provide NEXUS with a prel`uninary estitnato of this cost Nvitiuri thirty (30) clays of the Conunonccmcnt ]date, This preliminary estirnato shall he updated, if necessary, upon the City's receipt of Nexus applicallon to final any portion of its Wntative tract map, Said estimate shall be conclusive. b. Nexus shall pay the city the estitvatcd cost of Ibis item not later than approval of lire first final map for tho Nexus Project. G, The City shall eotnpfeto coirstnictiolr of this item prior to the first certificate of occupancy for the Nexus Project, Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Noxrts and 1110 City Manager or designee. 13XHIBIT D 19 Ordinance No. NS-2680 Paps 49 of 61 EXHIBIT C SCHEDULE FOR PUBLICLY- OWNED IMPROVEMENTS 11 City shall complete item no. La. on Exhibit A of Publicly-Owned Improvements not later tlian June 2005. 2. City shall complete item no. Lb. on Bxhibit E# of Publicly-Owned Improvements not later than five (5) yews after the Agency provides City with the then estimated cost of the projeot, 3, City shall cornplete.i(em no. I o. on BYJ)iblt A of Publicly-Owned Improvements not later than five (5) years aflor the Agency provides City with the then estimated cost of the project, Notwithstandhig this schedule, City shalt mako a reasonable good faith o5btt to offeotuate the completion of thcsopubliely-Owned Improvements (which, undercurrent law. inust bo designed and cotistnieted by Southern Callibmia Edison and not tho City) prior to tiro dates specified above, EX-MBIT D Ordinance No, N8-2884 2t? 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 L oration Property frontage on First American Way First American Way NIE comer of MacArthur & Imperial Promenade Sidewalk easement Street dedication 4" depressed curb Triple-left traffic mitigation measure, including sign bridge, signal modification, updated detection, and signing and striping on both streets Pavement Rehabilitation (minimum 2" grind and overlay) Installation of new public fire hydrants 10' 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