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HomeMy WebLinkAbout010306 RESO Approving AA Mutual Release-Jt Exrow Inst Vinci Invest_REQUEST FOR AGENCY ACTION QduUaon tat AGENCY BOARD MEETING DATE: AGENCY SECRETARY USE ONLY: JANUARY 3, 2006 TITLE: APPROVED RESOLUTION APPROVING ACQUISITION ❑ As Recommended AGREEMENT, MUTUAL RELEASE AND ❑ As Amended s JOINT ESCROW INSTRUCTIONS WITH El on l dRead g ❑ Ordinance on 2" Reading VINCI INVESTMENT CO., INC. ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER EXECUTIVE DIRECTOR ey 2ttX�lo - 00/ adapfedd��d RECOMMENDED ACTION kew s%defod i -17e)& oarp"gedad 6y C419 2o44-003 Adopt a resolution approving Acquisition Agreement, Mutual Release and Joint Escrow Instructions with Vinci Investment Co., Inc. DISCUSSION First established in 1984, the Santa Ana Auto Mall has been an important element of the City's economic base and source of revitalization in the South Main Redevelopment Project Area. Beginning in 2002, two of the larger dealers in the mall, Crevier BMW and Honda Santa Ana approached the Agency about potential redevelopment and expansion of their dealerships onto property along adjacent Edinger Avenue. The Crevier BMW project was approved by the Agency Board and City Council in 2004, and the first phase is currently under construction. In the case of Honda Santa Ana, Vinci Investment Co., the owner of the Honda Santa Ana dealership, notified the Agency in late 2003 that they had an agreement to acquire the leasehold interest in the adjacent property occupied by Mr. J's Nightclub from the Joher family. They sought an Agency agreement to assist with the purchase of the property (if successfully acquired) and expansion of the Honda Santa Ana dealership. On March 15, 2004, the Agency Board approved license agreement with Vinci calling for properties, assets, etc. to the Agency for Vinci's acquisition from the Johers. These Honda's temporary use of the site while a Agreement (DDA) was being negotiated, based Honda had previously outlined with staff. 8 -107 an acquisition agreement and transfer of the Mr. J's $4,247,897 immediately upon agreements would allow for Disposition and Development on a non - binding Term Sheet Under the Term Sheet, the Resolution Approving Acquisition Agreement, Mutual Release and Joint Escrow Instructions with Vinci Investment Co., Inc. January 3, 2006 Page 2 Agency would proceed with the potential acquisition of the underlying fee interest in the property. The entire property would then be conveyed back to Vinci in exchange for Vinci's agreement to expand and redevelop the Honda Santa Ana dealership. However, the Johers breached their agreement with Vinci, triggering over a year of litigation. As a result, no negotiations were ever undertaken and no DDA has yet been approved by the parties. At one point Vinci was awarded $15 Million in damages for the breach, resulting in the Johers seeking bankruptcy protection. When it appeared that Vinci would be unable to consummate their agreement with the Joher family, the Agency chose to terminate the March 2004 acquisition agreement. Vinci disputed the legality of the Agency's action. Vinci has concluded its litigation with the Johers and has successfully acquired the Mr. J's property. The Agency and Vinci desire to resolve their differences and, in doing so, carry out the intent of the Purchase Agreement and the Term Sheet. Part of the Vinci -Joher settlement included a significant discount of the original purchase price in exchange for waiver by Vinci of that $15 Million judgment. Under the proposed Acquisition Agreement, the Agency will purchase the Mr. J's assets including the lease, buildings & business goodwill for originally agreed $4,247,897 (This amount will result in Vinci receiving approximately $2.1 Million of the $15 Million judgment) and then license the property back to Vinci for two years. During that time, Vinci is required to demolish all of the Mr. J improvements (including free- standing signs)and to integrate the premises into the Honda Dealership and make substantial improvements to bring it into full compliance with the Santa Ana Auto Mall specific development standards. To assist in that, the Agency will contribute $367,000 to Vinci to partially offset those costs, plus pay to Vinci $385,103 as an advance against the rental subsidy proposed in the Term Sheet. Finally, the Agency will pay Vinci $1,025,000 as a full and complete settlement and compromise of Vinci's claim for extraordinary expenses incurred in the Joher litigation and for all other disputes and potential claims against the Agency by Vinci. The Agreement calls for demolition of the former Mr. J's improvements to begin within 30 days of close of escrow. The first step in demolition will be removal of the +40 foot pole sign. Demolition is anticipated to be complete in as little as a week. At the end of the two years, if all of the improvements are made, the Agency will re- assign the lease back to Vinci. In the meantime, Vinci and the Agency will sign a new Term Sheet to guide negotiations on a DDA. � � a Resolution Approving Acquisition Agreement, Mutual Release and Joint Escrow Instructions with Vinci Investment Co., Inc. January 3, 2006 Page 3 The Santa Ana Auto Mall generates $3.9 Million (FY 04 /05)in sales taxes to the General Fund. As the two top sales tax generators, as well as the "front door" to the Auto Mall, expansion and redevelopment of Crevier BMW and Honda Santa Ana will anchor the Auto Mall as a solid long term financial and community resource. Additionally, combined with the imminent reconstruction and upgrading of Edinger Avenue and continued growth at PacifiCenter, these new and redeveloped BMW and Honda dealerships will be major contributors to revitalizing the Edinger corridor. FISCAL IMPACT Total payments by the Agency will be $6,025,000. Funds are available in the South Main Tax Allocation Bond Capital Project account (account no. 552 - 936- 6611). Patricia C. Whitaker Executive Director PCW /JF /mlr APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency H: \ACTIONS \2006 CRA \Honda Settlement 12 -27 -05 CRA 1- 3- 06A.doc 1 / THIS PAGE LEFT INTENTIONALLY BLANK L• (JWF 12/21/05) RESOLUTION NO. CRA xxxxxx A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA APPROVING AN ACQUISITION AGREEMENT, MUTUAL RELEASE AND JOINT ESCROW INSTRUCTIONS WITH VINCI INVESTMENT CO., INC., A CALIFORNIA CORPORATION, DOING BUSINESS AS HONDA SANTA ANA. BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Board of the Community Redevelopment Agency of the City of Santa Ana hereby finds, determines and declares as follows: A. In December 2003, Vinci Investment Co., Inc., Inc. dba Honda Santa Ana, ( "Vinci ") entered into an Agreement of Purchase with various members of the Joher family (the "Vinci /Joher Agreement ") for the purchase of the business and related assets at 2101 East Edinger Avenue known as the Mr. J's Night Club and Cabaret (the "Joher Assets "). B. On March 15, 2004, the Agency approved an Agreement for Acquisition of Leasehold and other interests related to the Joher Assets under which the Agency would acquire most of the Joher Assets immediately after the close of the Vinci /Joher Agreement. C. The Agency's Executive Director and Vinci previously signed a term sheet dated January 21, 2004 (the "Term Sheet ") outlining the terms and conditions of a potential Disposition and Development Agreement ( "DDA ") to be negotiated between the Agency and Vinci following acquisition of the Joher Assets. The term sheet contemplated, among other things, acquisition of the fee interest in the property underlying the Joher Assets (the "Erickson Property. ") D. The Joher Sellers breached the Vinci /Joher Agreement. Vinci initiated and successfully prosecuted litigation against the Joher Sellers to compel performance of the Joher Sellers' contractual obligations to Vinci under the Vinci /Joher Agreement (the "Joher Litigation "). E. Due to the delays and expenses created by the Joher Litigation, the Agency terminated the Agency/Vinci Agreement on August 19, 2005. F. Vinci disagrees that the Agency properly terminated the Agency/Vinci Agreement. Additionally, the Agency and Vinci disagree as to the binding effect of the 8-111 Resolution No. CRA Page 1 of 3 Term Sheet, insofar as the Agency contends that the Term Sheet is merely a non- binding letter of intent. G. Vinci has now settled the Joher Litigation and acquired the Joher Assets. H. The Agency and Vinci desire to resolve their differences and in doing so carry out the intent of the Agency/Vinci Purchase Agreement and the Term Sheet. Section 2. That certain Acquisition Agreement, Mutual Release And Joint Escrow Instructions, including all attachments and related documents, schedules and attachments, submitted to the Agency Board at the time of consideration of this resolution is hereby approved. The Agency's Executive Director and General Counsel are hereby authorized to make such non - substantive changes to the documents as they may deem necessary or advisable in order to carry out the intent the of agreement and this resolution. Section 3. The Negative Declaration, Environmental Review No, 2003 -149 was previously approved. Section 4. This Resolution shall take effect immediately upon its adoption by the Agency Board, and the Secretary of the Agency shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2006. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph W. Fletcher Agency General Counsel 0 AYES: Boardmembers 8 -112 Resolution No. CRA I--- 1 _[ O NOES: ABSTAIN NOT PRESENT: Boardmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on Date: Recording Secretary Community Redevelopment Agency City of Santa Ana 8-113 Resolution No. CRA Page 3 of 3 THIS PAGE LEFT INTENTIONALLY BLANK 8-114 ACQUISITION AGREEMENT, MUTUAL RELEASE AND JOINT ESCROW INSTRUCTIONS This Acquisition Agreement, Mutual Release and Joint Escrow Instructions ( "Agreement ") is made as of December _, 2005, by the Community Redevelopment Agency of an the City of Santa Ana, a body corporate d politic organized and existing under the Community Redevelopment Law of the State of California (the "Agency ") and Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Vinci "). RECITALS WHEREAS, Mohammed Hussain Joher, Saber Joher and 2101 East Edinger, Inc. ( "Edinger Inc. ") (collectively, the "Joher Sellers "), and Vinci (erroneously referred to as Vinci Investments Co., Inc.), as Buyer, entered into an Agreement of Purchase, Sale and Assignment and Joint Escrow Instructions dated as of December _, 2003 (the "Joher /Vinci Purchase Agreement ") for the purchase by Vinci of the entire business (the "Mr. J's Business ") known as the Mr. J's Night Club and Cabaret ( "Mr. J's ") (including the stock of Edinger Inc.; the liquor license for Mr. J's ( "ABC License "); Mr. J's business licenses; the Joher Sellers' leasehold interest in the certain Standard/ Industrial /Commercial Single -Tenant Lease -Net dated December 28, 1992 between Erickson Properties Corporation, a California corporation ( "Erickson "), as Landlord, and Mohammed Hussain Joher alca Mohammed Hussain Joher, Mohannned Zouhair Joher and Hassan Joher (collectively, "Johers "), as Tenant, covering the property commonly known as 2101 E. Edinger Avenue, Santa Ana, CA 92705 (the "Leased Premises "), as the Johers' interest was assigned to Saher Joher on March 27, 2002 (collectively, the "Erickson Lease "); all structures and site improvements (the "Improvements ") located at the Leased Premises; and all tangible and intangible property of the Joher Sellers associated therewith) (the "Mr. J's Assets "). WHEREAS, the Agency and Vinci (erroneously referred to as Vinci Investments, Inc.) entered into that certain term sheet dated January 21, 2004 (the "Term Sheet ") outlining the terms and conditions of a proposed Disposition and Development Agreement ( "DDA ") to be negotiated between the Agency and Vinci for the expansion of Honda Santa Ana's dealership at the Santa Ana Auto Mall (the "Honda Dealership "). WHEREAS, the Tenn Sheet contemplated that Vinci would voluntarily acquire the Mr. J's Business (including all fixtures, furniture and equipment; tenant's leasehold interest in the Erickson Lease and the Improvements) as part of an arm's- length transaction with the Joher Sellers. WHEREAS, the Term Sheet contemplated, among other things, that (a) the Agency, without prejudging or pre-committing itself to exercise its power of eminent domain pursuant to the court's holding in Redevelopment Agency of Huntington Park v. Norm Slauson (1985), 173 Cal. App. 3d 112, was to consider the possibility of purchasing the fee interest underlying the Leased Premises, as more particularly described in Exhibit "A" attached hereto (the "Erickson Property"), and (b) as part of the DDA, the Agency would pay Vinci its exceptional and extraordinary outside expenses (e.g., attorneys' and consultants' fees), incurred by Vinci in undertaking the acquisition of the Erickson Lease, including, if applicable, costs to demolish 6000904350 8 -115 buildings on the Erickson Property (including, if necessary, costs to abate asbestos - containing materials in said buildings) by Vinci (the "Extraordinary Expenses "). WHEREAS, the Agency and Vinci (erroneously referred to as Vinci Investments, Inc.) entered into an Agreement for Acquisition of Leasehold Interest, Alcohol Beverage Control Permit and Intangible Interest in Certain Real Property dated March 15, 2004 (the "Agency/Vinci Purchase Agreement ") for the purchase by the Agency of the entire Mr. J's Business, including Vinci's interest in the Erickson Lease (the "Erickson Leasehold "), the ABC license, and all other tangible and intangible interests related to the Mr. J's Business immediately after Vinci acquired these interests from the Joher Sellers. WHEREAS, the Joher Sellers breached their agreement to sell the Mr. J's Assets to Vinci, and Vinci initiated and prosecuted litigation against the Joher Sellers to compel performance of the Joher Sellers' contractual obligations to Vinci under the Joher /Vinci Purchase Agreement (the "Joker Litigation "). WHEREAS, the Agency terminated the Agency /Vinci Purchase Agreement on August 19, 2005. WHEREAS, Vinci disagrees that the Agency properly terminated the AgencyNinci Purchase Agreement. WHEREAS, Vinci has now settled the Joher Litigation and acquired the Mr. J's Assets (including the Mr. J's Business, all goodwill of Mr. J's and any actual or potential claims for relocation benefits by the owners of the Mr. J's Business pursuant to the California Relocation Assistance Law) from the Joher Sellers, debtor and debtor -in- possession in Case No. SA 05- 14249 -RA and James J. Joseph, Chapter 11 Trustee ( "Trustee ") of the Bankruptcy Estate of Mohammed Hussain Joher and Saher Joher, Case No. SA 0511201 -RA (the " Joher Transferees "). WHEREAS, the Agency and Vinci disagree as to the binding effect of the Tenn Sheet, insofar as the Agency contends that the Tenn Sheet is merely a non- binding letter of intent. Vinci contends that the Term Sheet, when coupled with the Agency /Vinci Purchase Agreement, is a binding and legally enforceable contract which requires, among other things, that the Agency execute a DDA and reimburse Vinci for its Extraordinary Expenses. WHEREAS, the Agency and Vinci desire to resolve their differences and commence non - binding negotiations for a DDA for the future development of the Erickson Property located at 2101 and 2051 E. Edinger Avenue, Santa Ana, California, and the CRA's property (the "CRA Property ") adjacent thereto (APN #402 - 101 -43). In connection therewith, the Agency is willing to purchase certain of the Mr. J's Assets (as more particularly described below as the "Vinci Property "); Vinci is willing to integrate the Leased Premises into the Honda Dealership and make substantial improvements (as more particularly described below) to the Leased Premises (the "Vinci Improvements "); the Agency is willing to contribute Three Hundred Sixty -Seven Thousand Dollars ($367,000) to Vinci to partially offset the costs of the Vinci Improvements; the Agency is willing to pay to Vinci Three Hundred Eighty -Five Thousand One Hundred Three Dollars ($385,103) (subject to adjustments) as an advance against the Erickson Lease Subsidy); -2- 600090435v6 8 -116 and the Agency is willing to pay Vinci One Million Twenty -Five Thousand Dollars ($1,025,000) as a full and complete settlement and compromise of Vinci's claim for Extraordinary Expenses and all other disputes and potential claims against the Agency by Vinci. NOW, THEREFORE, in consideration of the covenants and promises herein contained, and other good and valuable consideration, receipt of which is hereby acknowledged, the Agency and Vinci agree as follows: Purchase of Vinci Property. A. Subject to and upon the terms and conditions herein, Vinci hereby agrees to sell to the Agency and the Agency hereby agrees to purchase from Vinci: (i) All of Vinci's right, title and interest in the Erickson Lease; (ii) All of Vinci's right, title and interest in the Improvements; and (iii) All of Vinci's right, title and interest in the Mr. J's Business (including, without limitation, any goodwill associated with Mr. J's and any actual or potential claims by Vinci for relocation benefits pursuant to California Relocation Assistance Law (Government Code Section 7260, et seq.), but excluding any furniture, fixtures and equipment of Mr. J's ( "FF &E ")). The Erickson Lease, the Improvements and the Mr. J's Business are hereinafter collectively referred to as the "Vinci Property." B. Purchase Price. The total purchase price for the Vinci Property shall be Four Million Two Hundred Forty-Seven Thousand Eight Hundred Ninety -Seven Dollars ($4,247,897) (the "Purchase Price "). C. Title Insurance Policy. Upon the Close of Escrow (as hereinafter defined), title to the Erickson Leasehold shall be insured by an ALTA leasehold policy of title insurance (the "Title Policy ") issued by the Title Company with liability in the amount of Seven Hundred Fifty Thousand Dollars ($750,000), insuring title to the Erickson Property to be vested in Erickson, and insuring title to the Leasehold estate to be vested in the Agency, as tenant under the Erickson Lease, subject only to current real estate taxes not delinquent and the exceptions set forth in the title commitment/pro forma title policy attached hereto as Exhibit "B" (the "Proforma Title Policy "). D. Prorations. (i) Rentals and operating expense pass - throughs owing under the Erickson Lease shall be prorated, effective as of 12:01 a.m., on the Closing Date (as hereinafter defined). (ii) Security and other deposits and unused portions of advance rentals, if any, paid by Vinci or any predecessor under the Erickson Lease (as assigned to Vinci) shall be transferred to the Agency without additional consideration by the Agency. -3- 600090435v6 8 -117 E. Vinci's Warranties. Vinci hereby covenants that the following representations and warranties of Vinci are true as of the date of this Agreement and shall be true and correct as of the Close of Escrow. The Agency's rights with respect to the following representations and warranties shall survive the Close of Escrow. (i) Power and Authority of Vinci. Vinci is a corporation duly organized and existing under the laws of the State of California and duly qualified to conduct business activities in the State of California. Vinci has the requisite right, corporate power and authority to sell, convey and transfer the Vinci Property to the Agency, as provided herein, and to enter into and carry out the terms of this Agreement and the execution and delivery hereof and of all other instruments referred to herein. The performance by Vinci of Vinci's obligations hereunder will not violate or constitute an event of default under the terms and provisions of any material agreement, document or instrument to which Vinci is a party or by which Vinci is bound. All proceedings required to be taken by or on behalf of Vinci to authorize it to make, deliver and carry out the terms of this Agreement have been duly and properly taken. No further consent of any person or entity is required in connection with the execution and delivery of, or performance by Vinci of its obligations under this Agreement, including, without limitation, the consent or approval of any bankruptcy or other court having jurisdiction over Vinci or the Vinci Property. (ii) Validity of Agreement. This Agreement is a valid and binding obligation of Vinci, enforceable against Vinci in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the rights. of creditors generally. (iii) Erickson Lease. The copy of the Erickson Lease delivered to the Agency pursuant to this Agreement is a true and correct copy thereof. There are no amendments or modifications to the Erickson Lease that will be binding on the Agency. The Erickson Lease is in full force and effect. To the knowledge of Vinci, the Erickson Lease is the only lease affecting the Erickson Property and Vinci is the only tenant under the Erickson Lease and the only tenant of the Erickson Property. To the knowledge of Vinci, there are no other agreements, written or oral, with respect to the tenancies, or the Improvements on the Erickson Property. There are no defaults under the Erickson Lease nor have events occurred which with notice or passage of time, or both, would constitute a default thereunder. Vinci has not made any previous assignment, transfer or other disposition of all or any part of its interest in the Erickson Lease and there are no encumbrances covering Vinci's interest in the Erickson Lease that will survive the Close of Escrow. (iv) Hazardous Substances. Except as set forth in the environmental reports described in Exhibit "C" attached hereto (the "Environmental Reports "), to Vinci's actual knowledge, without any duty of inquiry or investigation: (a) no Hazardous Substances (as hereinafter defined) are present in, on or under the Erickson Property, and there is no present Release (as hereinafter defined) or threatened Release of any Hazardous Substances in, on or under the Erickson Property; (b) the Erickson Property and every part thereof, and all operations and activities therein and thereon and the use and occupancy thereof, comply with all applicable Environmental Laws (as hereinafter defined), and neither Vinci nor any person using or occupying the Erickson Property or any part thereof is in violation of any Environmental Laws with respect to the Erickson Property; (c) no claim, demand, action or proceeding of any kind -4- 600090435x6 8-118 relating to any past or present Release or threatened Release or any past or present violation of any Environmental Laws at the Erickson Property has been made or commenced, or is pending, or is being threatened or contemplated by any person; (d) no notice of any order, directive, complaint or other communication, written or oral, has been made or issued by any governmental or quasi - governmental agency nor has Vinci received a written notice from any other third party alleging the occurrence of any activity on the Erickson Property in violation of any applicable Environmental Laws or demanding payment or contribution for environmental damage or injury to the Erickson Property. As used in this Agreement, the following definitions shall apply: "Environmental Laws" shall mean all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C. § 9601, et seq. ( "CERCLA "), the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., the Hazardous Substance Account Act, California Health and Safety Code § 25300, et seq., the Hazardous Waste Control Law, California Health and Safety Code § 25100, et seq., the Medical Waste Management Act, California Health and Safety Code § 25015, et seq., and the Porter - Cologne Water Quality Control Act, California Water Code § 13000, et seq. "Hazardous Substance(s)" shall mean any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant or infectious waste, or words of similar import, in any of the Environmental Laws, and includes asbestos, petroleum or petroleum products (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and chemicals which may cause cancer or reproductive toxicity. "Release" shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the enviromnent, including continuing migration, of Hazardous Substances into or through soil, air, surface water or groundwater. (v) Liti ation. To the best of Vinci's knowledge, there are no pending or contemplated actions, suits, arbitrations, claims or proceedings, at law or in equity, affecting all or any portion of the Vinci Property or the Leasehold Estate or in which Vinci is or will be a party by reason of Vinci's ownership of the Vinci Property or as the tenant of the Leased Premises, including, without limitation, judicial, municipal or administrative proceedings in eminent domain, unlawful detainer, breach of lease, breach of contract, collections, alleged building code, health and safety or zoning violations, employment discrimination or unfair labor practices, or worker's compensation, personal injuries or property damages alleged to have occurred on the Leased Premises or by reason of the condition or use of the Leased Premises, and, to the best of Vinci's knowledge, no events have occurred which might give rise to such actions, claims or proceedings, except for any non - compliance, if any, by Vinci with City Ordinance No. NS -2650 (the "Vinci Violations "). (vi) Compliance with Laws. To the best of Vinci's knowledge, except for the Vinci Violations, the Leased Premises are being operated in full compliance with all Govermnental Requirements (as hereinafter defined). No notices of violation of or exemptions from any Governmental Requirements relating to the Leased Premises or Vinci have been issued -5- 600090435x6 8-11-9 to, served upon, received by or entered against Vinci and, except for the Vinci Violations, no such violations or exemptions exist. (vii) Other Contracts. Vinci has not entered into any other contracts for the sale of the Vinci Property, nor do there exist any rights of first refusal or options to purchase the Vinci Property. (viii) Insolvency. This Agreement is the product of an arms- length transaction and the Purchase Price represents the fair value of the Vinci Property. Vinci has not taken any action relating to the Vinci Property which would invalidate this transaction or the transfer of the Vinci Property to the Agency. Vinci is currently solvent, and shall not be rendered insolvent by virtue of the sale of the Vinci Property to the Agency, and Vinci has not otherwise taken any action which may subject Vinci to applicable bankruptcy or similar laws affecting the rights of creditors generally. (ix) Vinci Property. Vinci is the owner of the Vinci Property. Vinci has not made any previous assignment, transfer or disposition of all or any part of its interest in the Vinci Property (including, without limitation, its right to any actual or potential relocation benefits, pursuant to the California Relocation Assistance Law (Government Code Section 7260, et seq.)), Vinci has not encumbered the Vinci Property, and Vinci is not aware of any encumbrances covering the Vinci Property that will survive the Close of Escrow. (x) Adverse Matters. Vinci is not aware of any material adverse facts or information concerning the Vinci Property which would be relevant to the Agency with respect to the Agency's determination to acquire the Vinci Property. F. The Agency's Warranties. The Agency hereby covenants that the following representations and warranties of the Agency are true and shall be true and correct as of the Close of Escrow. Vinci's rights with respect to the following representations and warranties shall survive the Close of Escrow: (i) Power and Authority of the Agency. The Agency is a body corporate and politic duly organized and existing under the Community Redevelopment Law of the State of California. The Agency has the requisite power and authority to enter into and carry out the terms of this Agreement and the execution, performance and delivery hereof and of all other agreements and instrurnents referred to herein to be executed, performed or delivered by the Agency and the performance by the Agency of the Agency's obligations hereunder will not violate or constitute an event of default under the terms and provisions of any material agreement, document or instrument to which the Agency is a party or by which the Agency is bound. All proceedings required to be taken by or on behalf of the Agency to authorize it to make, deliver and carry out the terns of this Agreement have been duly and properly taken. No further consent of any person or entity is required in connection with the execution and delivery of, or performance by the Agency of its obligations under, this Agreement. (ii) Validity of Agreement. This Agreement is a valid and binding obligation of the Agency, enforceable against the Agency in accordance with its terms, subject to the effect -6- 600090435v6 8 -120 of applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the rights of creditors generally. (iii) AS -IS. THE AGENCY ACKNOWLEDGES AND AGREES THAT, OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, VINCI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE VINCI PROPERTY, THE LEASED PREMISES OR THE ERICKSON PROPERTY. IT IS UNDERSTOOD AND AGREED THAT, WITH RESPECT TO THE PHYSICAL CONDITION OF THE VINCI PROPERTY, THE VINCI PROPERTY IS BEING SOLD AND CONVEYED HEREUNDER AND, UPON THE CLOSING, THE AGENCY AGREES TO ACCEPT THE VINCI PROPERTY "AS IS," "WHERE IS" AND "WITH ALL FAULTS" AND SUBJECT TO ANY CONDITION WHICH MAY EXIST, WITHOUT ANY REPRESENTATION OR WARRANTY BY VINCI EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE AGENCY HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE AGENCY IS RELYING SOLELY UPON ITS INSPECTIONS, EXAMINATION, AND EVALUATION OF THE VINCI PROPERTY BY THE AGENCY IN PURCHASING THE VINCI PROPERTY ON AN "AS IS," "WHERE IS" AND "WITH ALL FAULTS" BASIS. G. Covenants of Vinci Prior to Closine. During the period from the date of mutual execution of this Agreement until the earlier of (a) Close of Escrow or (b) the termination of this Agreement, Vinci shall, in addition to the covenants set forth elsewhere in this Agreement: (i) Maintain adequate insurance coverage for the Vinci Property; (ii) Not permit or suffer to exist any encumbrance, charge or lien to be placed or claimed upon the Vinci Property; (iii) Not execute any lease in the Improvements or on the Leased Premises or amend, modify, renew, extend or terminate the Erickson Lease without the prior written consent of the Agency, which consent may be withheld in the Agency's sole and absolute discretion; (iv) Not enter into any service, management or other contract relating to the Vinci Property which will survive the Close of Escrow without the prior written consent of the Agency, which consent may be withheld in the Agency's sole and absolute discretion; (v) Continue to operate and maintain the Leased Premises as an automobile dealership consistent with SD 60 zoning requirements; (vi) Promptly notify the Agency in writing if any of the representations and warranties set forth in this Agreement are no longer true and correct; (vii) Not sell, convey, assign, transfer, encumber or otherwise dispose of the Vinci Property, including, without limitation, the Erickson Lease, the Improvements, the Mr. J's Business or any part thereof or interest therein, and shall not, without the prior written consent of the Agency, make any modifications or alterations to the Vinci Property or the Erickson Property; -7- 600090435v6 8 -121 (viii) Not take any other action which may have an adverse effect upon the Vinci Property or upon the Agency if the Agency acquires the Vinci Property; (ix) Not commence any action with respect to the Vinci Property or the Erickson Property, without first obtaining the prior written consent of the Agency, which consent may be withheld in the Agency's sole and absolute discretion; (x) Not use, produce, process, manufacture, generate, treat, handle, store (except for gasoline in the tanks of automobiles and trucks) or dispose of any Hazardous Substances in, on or under the Leased Premises, or use the Leased Premises for any such purposes, or release any Hazardous Substances into any air, soil, surface water or groundwater comprising the Leased Premises; and (xi) Comply with all Environmental Laws applicable to the Leased Premises, or the use or occupancy thereof, or any operations or activities therein or thereon. H. Brokera eg Fees. Vinci hereby represents and warrants to the Agency, and the Agency hereby represents and warrants to Vinci, that no broker or finder has been engaged by it, respectively, in connection with any of the transactions contemplated by this Agreement or to its knowledge is in any way connected with any such transactions. In the event of any claims for brokers' or finders' fees or commissions in connection with the negotiation, execution or consummation of this Agreement, then Vinci shall indemnify, save harmless and defend the Agency from and against such claims if they shall be based upon any statement, representation or agreement by Vinci, and the Agency shall indemnify, save harmless and defend Vinci from and against such claims if they shall be based upon any statement, representation or agreement by the Agency. I. Costs. The Agency shall pay the Escrow fees, the cost of obtaining the Title Policy, all documentary or other transfer taxes, sales taxes, deed preparation and recordation charges. 2. Vinci Improvements Payment. Upon the Close of Escrow, the Agency shall pay to Vinci the sum of Three Hundred Sixty -Seven Thousand Dollars ($367,000) (the "Vinci Improvements Payment ") to help offset Vinci's anticipated costs of making the Vinci Improvements, including consultant fees incurred in connection therewith. 3. Erickson Lease Subsidy. Upon the Close of Escrow, the Agency shall pay to Vinci Three Hundred Eighty -Five Thousand One Hundred Three Dollars ($385,103) (the "Erickson Lease Subsidy Advance ") as an advance against the "Net Present Value" of the rent differential between the monthly rent owing to Erickson under the Erickson Lease and Twelve Thousand Two Hundred Dollars ($12,200) per month (with said amount escalated every five (5) years at a rate tied to the compound growth rate in the Consumer Price Index (CPI) between each escalation period up to a maximum cap of three percent (3 %) per annum) for the period from the expiration of the License Period (as hereinafter defined) until the expiration of the Erickson Lease, including all Option rights thereunder (the "Erickson Lease Subsidy "). The parties agree that the Erickson Lease Subsidy Advance is subject to increase by the Agency or partial refund to the Agency. The parties agree that the final calculation of the Erickson Lease Subsidy shall be -8- 600090435v6 8 -122 decided by a mutually agreeable third party source with expertise in making such calculations (the "Third Party") within three (3) months after the Close of Escrow. In the event the parties are unable to mutually agree upon the Third Party within thirty (30) days after the Close of Escrow, either party may request that the American Arbitration Association ( "AAA ") appoint the Third Parry in accordance with the criteria set forth above, and the selection of the Third Party by the AAA shall be binding on the parties hereto. Furthermore, in the event the Agency purchases the fee interest in the Erickson Property, Vinci agrees to promptly return to the Agency such portion of the Erickson Lease Subsidy actually paid by the Agency to Vinci in addition to the Fair Reuse Value (as hereinafter defined) so that it can be applied toward the purchase price of the Erickson Property. 4. Extraordinary Expenses. Upon the Close of Escrow, the Agency shall pay to Vinci One Million Twenty -Five Thousand Dollars ($1,025,000) in full and complete satisfaction of any claimed Extraordinary Expenses by Vinci (the "Extraordinary Expenses Payment'). 5. Termination of Prior Agreements. The Agency and Vinci agree that upon the Close of Escrow, the Term Sheet and the Agency /Vinci Purchase Agreement and all other agreements entered into by the Agency and Vinci with respect thereto shall be terminated and will no longer have any force and effect. 6. Release of Claims A. Release of Claims by Vinci. Upon the Close of Escrow, other than the ongoing obligations of the Agency Parties (as hereinafter defined) hereunder, Vinci, on behalf of itself, and on behalf of its respective successors, assigns, attorneys, accountants, officers, directors, shareholders, employees, agents, and servants, past, present and future, hereby releases, discharges, and acquits the Agency and the City of Santa Ana (the "City ") and their respective successors, assigns, attorneys, accountants, officers, directors, shareholders, employees, agents, and servants, past, present and future (the "Agency Parties "), of and from any and all past, present and future causes of action, rights, claims, or liabilities of any kind or nature whatsoever arising out of or connected with the matters described in this Agreement (including, without limitation, claims arising out of the Term Sheet, the Agency /Vinci Purchase Agreement, the termination of the Agency /Vinci Purchase Agreement and the Erickson Property) which Vinci owns, holds or possesses as of the Close of Escrow, or may, following the Close of Escrow, claim to own, hold or possess against the Agency Parties. B. Release of Claims by the Agency. Upon the Close of Escrow, other than the ongoing obligations of the Vinci Parties (as hereinafter defined) hereunder, the Agency, on behalf of itself and on behalf of its respective successors, assigns, attorneys, accountants, officers, directors, shareholders, employees, agents, and servants, past, present and future, hereby releases, discharges, and acquits Vinci and its respective heirs, successors, assigns, attorneys, accountants, officers, directors, shareholders, employees, agents, and servants, past, present and future (the "Vinci Parties "), of and from any and all past, present and future causes of action, rights, claims, or liabilities of any kind or nature whatsoever arising out of or connected with the matters described in this Agreement (including, without limitation, claims arising out of the Term Sheet, the Agency /Vinci Purchase Agreement and the Erickson Property ) which the -9- 600090435v6 8 -123 Agency owns, holds or possesses as of the Close of Escrow, or may, following the Close of Escrow, claim to own, hold or posses against the Vinci Parties. C. 1542 Release. The parties hereto acknowledge and agree that the releases and discharges set in Paragraph 6 above are general releases of all claims. The parties hereto expressly waive, and assume the risk of, any and all claims for damages which exist as of the Close of Escrow, but which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect their decision to enter into this Agreement. The parties hereto understand, and their attorneys have explained, the importance, meaning and legal effect of Section 1542 of the Civil Code. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code Section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 7. License. For a period of twenty -four (24) months from the Close of Escrow (the "License Term "), the Agency hereby agrees to provide Vinci with a license (the "License ") to use the Leased Premises and the CRA Property (collectively, the "License Area ") for the sole purpose of storage and sale of Honda automobiles and trucks consistent with SD 60 zoning requirements. Vinci shall use and operate the License Area during the License Term in compliance with all Governmental Requirements. Vinci hereby agrees to maintain for the License Area during the License Term comprehensive general liability insurance (including contractual liability and the broad or extended liability endorsement, insuring against claims for death, bodily injury, personal injury and property damage occurring upon, in or about the Leased Premises) with policy limits of at least $2,000,000.00 per occurrence from an insurance company licensed to do business in the State of California with an A.M. Best Company rating not lower than A -VII, naming the Agency as an additional named insured, and State Workers' Compensation Insurance for the statutorily mandated limits and Employers Liability Insurance with limits of not less than Five Hundred Thousand Dollars ($500,000). Vinci shall furnish to the Agency, prior to the Close of Escrow, policies or certificates evidencing such coverage ( "Insurance Certificates "), which policies or certificates shall state that such insurance coverage may not be reduced, cancelled, modified or not renewed without at least thirty (30) days' prior written notice to the Agency. Vinci shall be responsible for all costs of operating and maintaining the License Area during the License Term, including the cost of all insurance, utilities, maintenance (including landscaping) and repairs not otherwise paid by Erickson under the Erickson Lease. In the event Vinci fails to comply with any of its obligations under the License or under this Agreement (including, without limitation, Section 8, below) within ten (10) days after written notice from the Agency to Vinci, the Agency may terminate the License. 8. Vinci Improvements. Vinci agrees that it will, at its sole cost and expense, (1) in the first six (6) months following the Close of Escrow, conduct all necessary environmental investigations and testing of the Erickson Property, remove all FF &E, demolish all structures and Improvements on the Erickson Property, including freestanding signs and walls, clear the Erickson Property, and (2) within the next eighteen (18) months, construct all necessary -10- 600090435v6 8 -124 improvements to the Erickson Property and the CRA Property and make all other changes necessary to bring it into full compliance with the applicable zoning, land use, improvement, signage and landscaping standards found in SD -60 (Ordinance No. NS- 2650), the landscape and signage concept plans and the Auto Center CC &R's (collectively, the "Vinci Improvements "). A copy of Ordinance No. NS -2650, the landscape and signage concept plans and the Auto Center CC &Rs are attached hereto as Exhibits "D," "E" and "F," respectively. Vinci acknowledges that development of the Leased Premises and the CRA Property shall be in compliance specifically with Ordinance No. NS -2650 and that it shall carry out the design, demolition, landscaping, construction, and operation of the Leased Premises and the CRA Property 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 Erickson Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Agency, Vinci or the Erickson Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Erickson Property, and all other provisions of the City and its Municipal Code (as they apply to the Erickson Property), 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 "). Vinci's failure to perform the Vinci Improvements within the above - described times to the reasonable satisfaction of the Agency shall constitute a default under the License, and, if such default is not cured to the reasonable satisfaction of the Agency within thirty (30) days after written notice from the Agency to Vinci shall (i) immediately result in the termination of the License, in which event Vinci shall immediately remove, at its sole cost and expense, the FF &E, all vehicles and personal property from the Leased Premises (but not the Vinci Improvements, which shall become the property of the Agency), and return the Leased Premises to the Agency in a broom clean condition, and (ii) Vinci shall, within five (5) days of written demand by the Agency, return to the Agency the amount of the Improvement Payments and the amount of the Erickson Lease Subsidy paid by the Agency to Vinci in immediately available funds. Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver by the Agency or the City of any Governmental Requirements nor an agreement to delay enforcement of any Governmental Requirements. 9. Re- Assignment of Erickson Lease. At the end of the License Period, provided that the Vinci Improvements described in paragraph 8 are completed to the reasonable satisfaction of the Agency, and Vinci is not in violation of any of its obligations hereunder to the Agency or in violation of any Governmental Requirements with respect to the Erickson Property, the Agency will assign the Erickson Lease to Vinci without warranty or representation and in its then "AS -IS" condition, subject to the applicable zoning and land use standards found in SD -60 (Ordinance No. NS- 2650), the landscape and signage concept plans and the Auto Center CC &R's being met and subject to the consent of Erickson. 10. DDA Letter of Intent. If Vinci remains interested in acquiring Erickson's fee interest in the Erickson Property, the Agency is willing to enter into a non - binding preliminary letter of intent outlining the elements of a potential DDA to be negotiated as follows: -11- 600090435v6 8 -125 • Vinci shall develop specific expansion/redevelopment plans and a development schedule for the Honda Dealership facility acceptable to the Agency in its sole and absolute discretion; • The parties will voluntarily attempt to acquire the fee interest in the Erickson Property, and, if unsuccessful, will consider acquiring the Erickson Property by eminent domain by the Agency. The Agency and Vinci shall share all costs of the Erickson Property fee acquisition as follows: o The Agency shall pay the cost of the appraisers, consultants and outside counsel (if necessary), plus all purchase price /compensation in excess of the Developer Contribution (defined below). o Vinci shall pay the Developer Contribution, defined as the amount determined in accordance with the Community Redevelopment Law to represent the fair reuse value of the Erickson Property (the "Fair Reuse Value ") plus the amount of the Erickson Lease Subsidy. o Each party shall reserve the absolute right not to proceed with the purchase of the Erickson Property if it finds, in its sole and absolute discretion, that its share of the contribution to the cost of fee acquisition is more than it is willing to pay. The parties will acknowledge that the non - binding letter of intent constitutes only a mutual statement of interest to be used solely for discussion purposes. It shall not impose any contractual obligations whatsoever unless and until a DDA is executed, if ever, and is not to be construed in conjunction with this Agreement. Each party will agree that its approval or acknowledgement of the non - binding letter of intent shall not impose upon the other any duty whatsoever to continue negotiations in good faith or otherwise, and that each party shall continue to have the absolute right to propose different terms or to unilaterally terminate negotiations altogether. Neither party shall have any expectation that a DDA shall be executed. 11. Escrow Instructions. A. Opening of Escrow. As soon as reasonably practicable following the mutual execution of this Agreement, the parties shall open an escrow (the "Escrow ") at First American Title Company located at 2 First American Way, Santa Ana, California 92707, attention: Mr. Robert Benavente (the "Escrow Holder "), in order to consummate the transactions described in this Agreement in accordance with the terms and provisions hereof. This Agreement shall be deposited in the Escrow and the provisions hereof shall constitute joint primary escrow instructions to the Escrow Holder; provided, however, that the parties shall execute such additional instructions as requested by the Escrow Holder not inconsistent with the provisions hereof. -12- 600090435v6 8 -126 B. Documents and Funds Delivered to or by Escrow. The following shall be delivered into the Escrow: (i) Delivery by Vinci in Escrow. Prior to the Close of Escrow, Vinci shall deposit into Escrow: (a) a Grant Deed (the "Grant Deed ") to the Improvements in recordable form, duly executed by Vinci and acknowledged and in substantially the same form as set forth in Exhibit "G" attached hereto; (b) three (3) originals of an Assignment and Assumption of Lease (the "Lease Assignment "), duly executed in counterpart by Vinci assigning to the Agency Vinci's interest and rights, as Lessee, under the Erickson Lease and in substantially the same form as set forth in Exhibit "H" attached hereto; (c) three (3) originals of a Memorandum of Assignment and Assumption of Lease (the "Lease Assignment Memorandum "), duly executed by Vinci and acknowledged and in substantially the same form as set forth in Exhibit "I" attached hereto. (d) three (3) originals of an Assignment of Intangible Property (the "Assignment of Intangible Property"), duly executed in counterpart by Vinci, conveying to the Agency all of Vinci's interest in and the rights to the Intangible Property and in substantially the same form as set forth in Exhibit "J" attached hereto; (e) three (3) originals of an affidavit from Vinci which satisfies the requirements of Section 1445 of the Internal Revenue Code, as amended (the "Section 1445 Affidavit ") and in substantially the same form as set forth in Exhibit "K" attached hereto; (f) three (3) originals of a Withholding Exemption Certificate, Form 593, stating that Vinci is exempt from withholding requirements (the "Form 593 "), and in substantially the same form as set forth in Exhibit "L" attached hereto; (g) three (3) originals of the Estoppel Certificate and Landlord Consent (the "Estoppel Certificate ") executed by Erickson in substantially the same form as set forth in Exhibit "M" attached hereto and containing no information which is objectionable to the Agency; (h) corporate resolutions ( "Vinci Resolutions ") from Vinci evidencing Vinci's authority and authorization to enter into this Agreement and consummate the transactions contemplated herein, and such proof of the power and authority of the individual(s) executing and /or delivering any instruments, documents or certificates on behalf of Vinci to act for and bind Vinci; (i) the Insurance Certificates; 0) one original (or, if an original is not available, a certified copy from the U.S. Bankruptcy Court) of the Settlement Agreement dated August 31, 2005 between Vinci and the Joher Sellers (the "Settlement Agreement "); and -13- 600090435x6 8 -127 (k) such other instruments and documents as may be reasonably requested by Escrow Holder or otherwise required to transfer the Vinci Property to the Agency. (ii) Delivery by the Agency in Escrow. Prior to the Close of Escrow, the Agency shall deposit into Escrow: (a) three (3) originals of the Lease Assignment, duly executed in counterpart by the Agency, assuming Vinci's interest and obligations as tenant under the Erickson Lease from and after the Close of Escrow; (b) three (3) originals of the Assignment of Intangible Property, duly executed in counterpart by the Agency, assuming Vinci's interest in and obligations with respect to the Intangible Property from and after the Close of Escrow; (c) resolutions from the Agency (the "Agency Resolutions ") evidencing Agency's authority and authorization to enter into this Agreement and consummate the transactions contemplated herein, and such proof of the power and authority of the individual(s) executing and /or delivering any instruments, documents or certificates on behalf of Agency to act for and bind Agency; and (d) such other instruments and documents as may be reasonably requested by Escrow Holder or otherwise required to transfer the Vinci Property to the Agency. (iii) Further Deliveryby the Agency in Escrow. Upon the Closing Date, the Agency shall deposit into Escrow by certified or cashier's check if acceptable to Escrow Holder (or a wire transfer of immediately available funds) the amount of the Purchase Price, the Vinci Improvements Payment, the Erickson Lease Subsidy Advance and the Extraordinary Expenses Payment, plus such additional sums as shall be necessary to pay the expenses payable by the Agency hereunder so long as the following conditions precedent have been satisfied: (a) Escrow Holder has previously notified the Agency that Vinci has delivered into Escrow (i) all of its documents required under Section 11.13(i) above, and (b) Escrow Holder has previously notified the Agency that Escrow Holder is able to proceed to close Escrow in accordance with the terms of this Agreement. (iv) Delivery Escrow Holder. At least one (1) business day prior to the Close of Escrow, Escrow Holder shall deliver to the Agency and Vinci a pro forma closing statement which sets forth, in a manner satisfactory to the Agency and Vinci, the prorations and other credits and debits contemplated by this Agreement. C. Conditions to Close. (i) The Agency. Escrow shall not Close unless and until the following conditions precedent and contingencies have been satisfied or waived in writing by the Agency: the Escrow Holder; 6000904350 (a) All instruments described in this Section 11 have been delivered to -14- 8 -128 (b) On the Closing Date, Vinci shall not be in default in the performance of any covenant or agreement to be performed by Vinci under this Agreement; (ii) The Title Company is irrevocably committed to deliver to the Agency the Title Policy described in Section 1.C; (iii) Vinci. Escrow shall not close unless and until the following conditions precedent and contingencies have been satisfied or waived in writing by Vinci: (a) All funds and instruments described in this Section 11 have been delivered to the Escrow Holder; (b) On the Closing Date, the Agency shall not be in default in the performance of any covenant or agreement to be performed by the Agency under this Agreement. D. Waiver of Performance. Either party may waive the satisfaction or performance of any conditions or agreements in this Agreement which have been inserted for its own and exclusive benefit, so long as the waiver is signed (unless the Agreement provides for a non- written waiver) and specifies the waived condition or agreement and is delivered to the other party hereto and the Escrow Holder. E. Recordation and Transfer. Upon satisfaction of the conditions set forth in Section I LC above, Escrow Holder shall transfer the Vinci Property as follows: (i) Cause the Grant Deed and the Lease Assignment Memorandum to be recorded in the Official Records of Orange County, California; (ii) Deliver to (i) the Agency at least one fully executed original of the Lease Assignment, the Assignment of Intangible Property, the Section 1445 Affidavit, the Form 593, the Estoppel Certificate, the Vinci Resolutions, the Settlement Agreement, the Insurance Certificates, and at least one conformed copy of the recorded Grant Deed and the Lease Assignment Memorandum, (ii) Vinci at least one fully executed original of the Lease Assignment, the Assignment of Intangible Property, the Section 1445 Affidavit, the Form 593, the Estoppel Certificate, the Agency Resolutions and at least one conformed copy of the recorded Grant Deed and the Lease Assignment Memorandum, and (iii) the parties entitled thereto any other closing documents; (iii) Disburse all funds deposited with Escrow Holder by the Agency in payment of the Purchase Price for the Vinci Property as follows: (a) to the extent that Vinci is a foreign person pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and is not otherwise exempt from such section's withholding requirements, withhold the cash equivalent of ten percent (10 %) of the Purchase Price (unless some lesser amount is authorized by the Internal Revenue Service); (b) to the extent that Vinci is a non - California resident pursuant to Revenue and Taxation Code Sections 18805 and 26131, and is not otherwise exempted from -15- 600090435v6 8 -129 such sections withholding requirements, withhold the cash equivalent of three and one -third percent (3 -1/3 %) of the Purchase Price (unless some lesser amount is authorized by the Franchise Tax Board); (c) deduct the amount of all items chargeable to the account of Vinci pursuant hereto; (d) deliver to Vinci the remaining portion of the Purchase Price pursuant to instructions to be delivered by Vinci to Escrow Holder; (e) deduct the amounts of all items chargeable to the account of the Agency pursuant hereto; (1) disburse the remaining balance of the funds deposited by the Agency to the Agency promptly upon the Close of Escrow pursuant to instructions to be delivered by the Agency to Escrow Holder. F. Close of Escrow. The Escrow shall close ( "Close of Escrow" or "Close" or "Closing" or "Closing Date ") no later than December 28, 2005, unless otherwise extended pursuant to the terms hereof or in writing by mutual agreement between the Agency and Vinci. 12. No Admission of Liability. This Agreement shall not be construed as an admission by the Agency or Vinci of any liability, misconduct or wrongdoing whatsoever, or as an admission by any party of any violation of the rights of the other nor a violation of any order, law, statute, duty, or contract whatsoever against any party or any person. The Agency specifically disclaims any liability to Vinci or any other person for any alleged violation of the rights of Vinci or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of the Agency, or any employees or agents of the Agency. 13. TIME OF ESSENCE. TIME AND EACH OF THE TERMS, COVENANTS, CONDITIONS AND CONTINGENCIES OF THIS AGREEMENT ARE HEREBY EXPRESSLY MADE OF THE ESSENCE. 14. Indemnify and Hold Harmless. Vinci agrees to and shall indemnify, defend (with counsel reasonably acceptable to the Agency) and hold the Agency Parties harmless from liability: (a) for damages, just compensation, restitution, judicial or equitable relief arising out of any claims by Erickson, arising from or in connection with this Agreement, the License, the Erickson Lease (except for claims arising out of the Agency Parties' acts or omissions following the Close of Escrow), including, without limitation, any claims by Erickson that Vinci is not permitted to occupy the Leased Premises or any claims by Erickson that Vinci's use of the Leased Premises violates the Erickson Lease or claims by Erickson that the Agency Parties colluded with Vinci in any way in connection with the Erickson Lease or the Erickson Property and claims for breach of the Erickson Lease prior to the Close of Escrow (regardless of when such claims are made)); (b) from any claims by any third parties relating to the Mr. J's Business (including, without limitation, claims by any former employees of Mr. J's or claims associated with the operation of Mr. J's prior to the Close of Escrow), and /or the Agency /Vinci Purchase Agreement, unless arising solely from the Agency Parties' acts or omissions following the Close of Escrow; and (c) from any claim by the Joher Sellers, the Johers, the Trustee, Mohammed -16- 600090435v6 8 -130 Zouhair Joher and/or Hassan Joher, that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from or in connection with this Agreement and /or the Agency /Vinci Purchase Agreement, including, without limitation, claims for relocation benefits under the California Relocation Assistance Law or claims that the Agency Parties conspired with Vinci to take the Mr. J's Assets without adequate compensation or for any other claims by the Joher Sellers, the Johers, Mohammed Zouhair Joher and /or Hassan Joher, and /or the Trustee unless arising solely from the Agency Parties' acts or omissions following the Close of Escrow. This indemnity and 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 regardless of whether they are brought by the property owner, the owner of any or all businesses operated on said real property, or any person who claims an interest in said real property, any improvement located on said real property, or any and all business operated on said real property, including but not limited to intangible property rights such as business goodwill. Vinci further agrees to indemnify, hold harmless, and defend, at Vinci's sole cost and expense, the Agency Parties from and against any action by a third party challenging the validity of this Agreement, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from, this Agreement. Agency may make all reasonable decisions with respect to its representation in any legal proceeding, though Vinci reserves the right to appoint counsel reasonably acceptable to the Agency, to defend any such proceeding. 15. ABC License. Vinci is the owner of the ABC License. Vinci agrees that it will not use the ABC License. Furthermore, Vinci agrees that if it sells the ABC License, it will restrict its use to a location outside of the City of Santa Ana, California. 16. Miscellaneous A. The parties hereto each represent to the other that they have reviewed all aspects of this Agreement, that this Agreement has been carefully read and fully explained to them and that they understand all the provisions of this Agreement, that they voluntarily agree to all the terms set forth in this Agreement, that they knowingly and willingly intend to be legally bound by the same, that they were given the opportunity to consider the terms of this Agreement and discuss them with legal counsel. B. The Parties hereto represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by any of the parties or by any of the parties' agents, attorneys, or representatives with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. C. This Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, predecessors, successors, and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators, representatives, executors, predecessors, successors, and assigns. Notwithstanding the foregoing, this Agreement may not be assigned by Vinci without the prior written consent of the Agency, which consent may be withheld in the sole and absolute discretion of the Agency; provided, however, the -17- 6000904350 8 -131 Agency shall not unreasonably withhold its consent to any assignment of this Agreement by Vinci to an entity which owns the Honda Dealership. D. This Agreement sets forth the entire agreement between the parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter hereof; provided, however, this Agreement does not supersede Vinci's obligations to the City and/or the CRP, under any Governmental Requirements. E. This Agreement shall be interpreted in accordance with the plain meaning of its terns and not strictly for or against any of the parties hereto. F. Each party hereto shall bear its own attorneys' fees and costs in connection with the negotiation and preparation of this Agreement and the matters and documents referenced herein. G. This Agreement shall be construed and interpreted in accordance with the laws of the State of California without regard to any choice of law provisions. Any action to enforce or interpret the terms of this Agreement shall be brought in a court of law in Orange County, California. The prevailing party in any such action shall be entitled to its costs and reasonable attorneys' fees incurred in such proceeding. H. This Agreement may be executed in two or more counterparts and each such executed counterpart shall be deemed to be an original, but all such counterparts together shall constitute one and the same instrument. [Signature page follows] -18- 600090435v6 8 -132 IN WITNESS WHEREOF, this Acquisition Agreement, Mutual Release and Joint Escrow Instructions is executed as of the date first written above. Dated: December , 2005 ATTEST: Dated: December , 2005 APPROVED AS TO FORM: Dated: December , 2005 Dated: December , 2005 "AGENCY ": COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA By: Name: Patricia C. Whitaker Title: Executive Director Patricia E. Healy Secretary of the Agency JOSEPH W.FLETCHER Agency Counsel "VINCP": VINCI INVESTMENT CO., INC., a California corporation By: Name: Title: —19- 600090435x6 8 -133 600090435v6 EXHIBIT A DESCRIPTION OF THE ERICKSON PROPERTY EXHIBIT A -1 8 -134 600090435v6 EXHIBIT B PROFORMA TITLE POLICY EXHIBIT B -I 8 -135 EXHIBIT C ENVIRONMENTAL REPORTS 1. California Regional Water Quality Control Board, Santa Ana Region, Order No. 91 -63- 082, NPDES No. CA 8000114, undated. 2. Science Applications International Corp (SAIC), letter to California Regional Water Quality Control Board, Santa Ana Region - Change of Chevron Environmental Consultants, dated 3/26/03. 3. MACTEC Report - Submittal of 4th Quarter 2002 Groundwater Monitoring and Progress Report, dated 12/5/02. 4. Harding ESE Report - Submittal of 3rd Quarter 2002 Groundwater Monitoring and Progress Report, dated 9/19/02. 5. Harding ESE Report - Submittal of 2nd Quarter Groundwater Monitoring and Progress Report, dated 7/15/02. 6. Harding ESE Report - Submittal of 1St Quarter Groundwater Monitoring and Progress Report, dated 2/28/02. 7. Harding ESE Report - Submittal of 4th Quarter Groundwater Monitoring and Progress Report, dated 12/6/02. 8. Harding ESE Report - Submittal of 3rd Quarter Groundwater Monitoring and Progress Report, dated 9/27/01. 9. Harding ESE Report - Submittal of 1St Quarter 2001 Progress Report, dated 4/2/01. 10. Harding ESE Report - Submittal of 2nd Quarter 2001 Groundwater Monitoring and Progress Report, dated 7/19/01. 11. Harding ESE Report - Submittal of 4th Quarter 2001 Groundwater Monitoring and Progress Report, dated 1/24/01. 12. Harding ESE Report - Submittal of 3rd Quarter 2000 Groundwater Monitoring and Progress Report, dated 10/23/00. 13. Chevron Products Company letter- Active Sites, dated 9/21/00. 14. Harding Lawson Associates Report - Submittal of 2nd Quarter 2000 Progress Report, dated 8/16/00. 15. Wayne Perry, Inc. Report - Groundwater Monitoring Report First Quarter 2000, dated 3/31/00. EXHIBIT C -1 600090435v6 8 -136 16. Wayne Perry, Inc. Report - Groundwater Monitoring Report Fourth Quarter 1999, dated 12/30/99. 17. Wayne Perry, Inc. Report - Groundwater Monitoring Report Third Quarter 1999, dated 9/30/99. 18. Wayne Perry, Inc. Report -- Groundwater Monitoring Report Second Quarter 1999, dated 6/30/99. 19. Wayne Perry, Inc. Report - Groundwater Monitoring Report First Quarter 1999, dated 4/13/99. 20. Chevron Products Company Letter - Re: Chevron Sites 9 -1825, 91291, 9 -2912, dated 1/28/99. 21. Wayne Perry, Inc. Report - Groundwater Monitoring Report Fourth Quarter 1998, dated 12/31/98. 22. Holguin, Fahan & Associates Report - Third Quarter 1998 Groundwater Monitoring Report, dated 9/14/98. 23. Holguin, Fahan & Associates Report - Second Quarter 1998 Groundwater Monitoring Report, dated 5/17/98. 24. Fluor Daniel GTI Report - Report on Additional Hydrocarbon Assessment, dated 4/27/98. 25. Holguin, Fahan & Associates Report - First Quarter 1998 Groundwater Monitoring Report, dated 3/16/98. 26. Site Status Report 27. Holguin, Fahan & Associates Report - Fourth Quarter 1997 Groundwater Monitoring Report, dated 12/22/97. 28. Holguin, Fahan & Associates Report - Third Quarter 1997 Groundwater Monitoring Report, dated 8/14/97. 29. Fluor Daniel GTI Report - Workplan for Additional Soil Hydrocarbon Assessment, dated 8/5/97. 30. California Regional Water Quality Control Board, Santa Ana Region Letter - Addition of Methyl tertiary Butyl Ether (MTBE) to Basic Analytical Suite, dated 5/20/97. 31. Holguin, Fahan & Associates Report - Second Quarter 1997 Groundwater Monitoring Report, dated 4/21/97. 32. Holguin, Fahan & Associates Report - Fourth Quarter 1996 Groundwater Monitoring Report, dated 1/10/97. EXHIBIT C -2 600090435v6 8 -137 33. California Regional Water Quality Control Board, Santa Ana Region Letter - Waste Discharge requirements, Order No. 91 -63 -082, NPDES No. CAG918001, 34. Groundwater Cleanup Project, Chevron Service Station No. 9- 0550 -, 2051 E. Edinger Avenue, Santa Ana, California, dated 12/12/96. 35. Chevron Products Company letter, Request to Cancel NPDES Permits - Board Order 91- 063- Facility ID: 8- 302599001 and 8 302775001, dated 11/26/96. 36. State Water Resources control Board Invoice - Annual Fee for Waste Discharge Requirements Required by Section 13260 of the California Water Code, dated 9/18/96. 37. Holguin, Fahan & Associates Cover Letter - Third Quarter 1996 Groundwater Monitoring Report, dated 10/18/96. 38. California Regional Water Quality Control Board, Santa Ana Region letter, Transmittal of Adopted Order No. 96 -18, NPDES No. CAG918001, dated 10/25/96. 39. Alton Geoscience Cover Letter -- Quarterly Monitoring Report April through June 1966, dated 6/10/96. 40. Geraghty & Miller, Inc. Letter - Groundwater Treatment System Operation and Maintenance Report for First Quarter (January through March) 1996, dated 4/12/96. 41. Geraghty & Miller, Inc. Letter Report - Vapor Extraction Treatment System Operation and Maintenance Report for First Quarter (January through March) 1996, dated 4/12/96. 42. Alton Geoscience Cover letter - Quarterly Monitoring Report January through March 1996, dated 2/28/96. 43. Geraghty & Miller, Inc. Cover letter - Groundwater Treatment System Operation and Maintenance Report for Fourth Quarter (October through December) 1995, dated 1/12/96. 44. Alton Geoscience Report - Quarterly Monitoring Report October Through December 1995, dated 12/7/95. 45. Chevron U.S.A. Products Company Report - Groundwater Treatment System Quarterly Sampling and Maintenance July, august and September, 1993, Former Chevron Service Station 9 -0550 2051 East Edinger Avenue, Santa Ana, California, RWQCB Order No. 89 -195, dated 10/19/93. 46. California Regional Water Quality Control Board, Santa Ana Region, Order No. 89 -195 Amending Cleanup and Abatement Order No. 88 -72 for Chevron U.S.A., Inc. for Chevron U.S.A., Inc. and City of Santa Ana, Santa Ana, Orange County, undated. EXHIBIT C -3 600090435v6 8-138 47. California Regional Water Quality Control Board, Santa Ana Region, Order No. 89 -195 Amending Cleanup and Abatement Order No. 88 -72 for Chevron U.S.A., Inc. for Chevron U.S.A., Inc. and City of Santa Ana, Santa Ana, Orange County, undated. 48. Converse Environmental West Report - Groundwater Treatment System Monitoring Activities Fourth Quarter 1992, dated 1/25/93. 49. California Regional Water Quality Control Board, Santa Ana Region letter - Transmittal of Adopted Order No. 89 -195 Amending Cleanup and Abatement Order No. 88 -72, dated 12/4/89. 50. Chevron U.S.A., Inc. cover letter - Monthly Monitor and Maintenance, dated 11/28/89. 51. California Regional Water Quality Control Board, Santa Ana Region letter - National Pollutant Discharge Elimination System ( NPDES) Application No. CA 8000114, dated 3/13/89. 52. California Regional Water Quality Control Board, Santa Ana Region - Transmittal of NPDES Applications, dated 3/13/89. 53. Chevron U.S.A., Inc. cover letter - January 1989, Monthly Monitoring and Maintenance Report by Groundwater Technology, Inc. dated 3/1/89. 54. Chevron U.S.A., Inc. cover letter, dated 2/14/89. 55. Chevron U.S.A., Inc. cover letter, dated 1/25/89. 56. Chevron U.S.A., Inc. cover letter, dated 1/16/89. 57. Chevron U.S.A., Inc. cover letter, dated 12/14/88. 58. Chevron U.S.A., Inc. cover letter, dated 11/30/88. 59. Chevron U.S.A., Inc. cover letter, dated 10/20/88/ 60. Chevron U.S.A., Inc. letter, dated 9/28/88. 61. California Regional Water Quality Control Board, Santa Ana Region letter - Cleanup and abatement Order No. 88 -72; 2051 E. Edinger Avenue, Santa Ana, dated 8/9/88. 62. California Regional Water Quality Control Board, Santa Ana Region letter -- Cleanup and abatement Order No. 88 -72; 2051 e. Edinger Avenue, Santa Ana, dated 6/1/88. 63. Chevron U.S.A., Inc. letter- NPDES Permit Application, dated 6/30/88. 64. Chevron U.S.A., Inc. report - Updated groundwater Extraction and treatment Plan, by Groundwater Technology, dated 6/16/88. EXHIBIT C -4 600090435v6 8 -139 65. Chevron U.S.A., Inc. letter - Work plan for Installation of additional groundwater monitoring wells, dated 7/15/88. 66. California Regional Water Quality Control Board, Santa Ana Region letter - Cleanup and Abatement Order No. 88 -72, dated 6/14/88. 67. California Regional Water Quality Control Board, Santa Ana Region letter - Cleanup and Abatement Order No. 88 -72, dated 5/27/88. 68. Chevron U.S.A., Inc. proposal, dated 5/20/88. 69. City of Santa Ana letter to California Regional Water Quality Control Board, Santa Ana Region, dated May 6, 1988. 70. California Regional Water Quality Control Board, Santa Ana Region, letter, dated 3/21/8. 71. City of Santa Ana cover letter and copy of Stipulated Judgment in Condemnation in the subject case, dated 11/4/89. 72. Chevron U.S.A., Inc. letter, dated November 18,1987. 73. Chevron U.S.A., letter dated July 29, 1987. 74. Memo dated July 9, 1987. 75. Pillsbury, Madison & Sutro letter, dated July 2, 1987. 76. Memo dated 5/29/87. 77. Groundwater Technology, Inc. - Permit Application for reinjection of treated groundwater, dated 6/12/87. 78. City of Santa Ana letter dated May 28, 1987. 79. City of Santa Ana letter and copy of subpoena, dated 5/18/87. 80. Pillsbury, Madison & Sutro letter dated 4/7/87. 81. Pillsbury, Madison & Sutro letter dated 4/1/87. 82. Pillsbury, Madison & Sutro letter dated 3/10/87. 83. Pillsbury, Madison & Sutro letter dated 2/25/87. 84. Declaration dated 2/27/87. 85. Pillsbury, Madison & Sutro letter dated 2/25/87. 86. Memo dated 2/19/87. EXHIBIT C -5 600090435v6 8 -140 87. Byrana, Stirrat & Associates letter - Permit Application for Reinjection of Treated Groundwater, dated 2/27/87. 88. California Regional Water Quality Control Board, Santa Ana Region - Permit Application for Reinjection of Treated Groundwater, dated 2/6/87. 89. Groundwater Technology, Inc. - Permit Application for Reinjection of Treated Groundwater, dated 11/12/86. 90. Groundwater Technology, Inc. - Reinjection of Treated Groundwater, dated 11/12/86. 91. California Regional Water Quality Control Board, Santa Ana Region - Reinjection of Treated Groundwater, dated 10/29/86. 92. Groundwater Technology, Inc. letter dated 10/15/86. 93. Byrana, Stirrat & Associates transmittal - Recent lab analysis report, dated 9/25/86. 94. Byrana, Stirrat & Associates transmittal -- Recent lab analysis report, dated 8/20/86. 95. Memo dated 7/28/86. 96. Memo dated 6/19/86. 97. Byrana, Stirrat & Associates transmittal dated June 18, 1986. 98. Memo dated 5/28/86. 99. Byrana, Stirrat & Associates Remedial Action Plan, dated 4/8/96. 100. SAIC Report, Submittal of 2nd Quarter 2003 Groundwater Monitoring and Progress Report, dated June 4, 2003. 101. SAIC Report, Submittal of 3rd Quarter 2003 Groundwater Monitoring and Progress Report, dated December 5, 2003. 102. SAIC Report, Submittal of 3rd Quarter 2003 Groundwater Monitoring and Progress Report, dated January 6, 2004. 103. SAIC, Dissolve Hydrocarbon Concventration (sic) Map for Groundwater Samples Collected January 6, 2004. 104. SAIC, Report, Groundwater Monitoring Well Destruction Workplan dated June 16, 2005. SAIC Report, Submittal of 4th Quarter 2005 Groundwater Monitoring and Progress Report, dated November 28, 2005. EXHIBIT C -6 600090435v6 8 -141 6000004350 EXHIBIT D ORDINANCE NO. NS -2650 Lw4m -*.l 7DB 8 -142 ORDINANCE NO. NS -2650 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING THE PROPERTIES LOCATED AT 1651, 1901, 1921, 1941, 1961, 2009 AND 2101 EAST EDINGER AVENUE FROM LIGHT INDUSTRIAL (M1) TO SPECIFIC DEVELOPMENT DISTRICT 60 (SD -60) (AA NO. 2003 -03) AND AMENDING SPECIFIC DEVELOPMENT DISTRICT NO. 60 (SD -60) (ZOA NO. 2003.03) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. The Community Redevelopment Agency is requesting approval to change the zoning of properties 1851, 1901, 1921, 1941, 1961, 2009 and 2101 East Edinger Avenue from Light Industrial (M1) to Specific Development District No. 60 (SD -60) (AA NO. 2003 -03) and to amend Specific Development District No. 60 ($D -60). B. On March 22, 2004, the Planning Commission held a duly noticed public hearing, and unanimously voted to recommend that the City Council: 1. Approve and adopt the Addendum to Negative Declaration, Environmental Review No. 2002 -149 2. Adopt an ordinance approving Amendment Application No. 2003 -03. 3. Adopt and ordinance Zoning Ordinance Amendment No. 2003 -03. C. The City Council of the City of Santa Ana held a duly noticed public hearing on the. abovesaid actions on April 19, 2004, and has considered all testimony, written and oral. D. Amendment Application No. 2003 -03 has been filed with the City of Santa Ana to change the zoning district designation of certain real property located at 1851, 1901, 1921, 1941, 1961, 2009 and 2101 East Edinger Avenue from Light Industrial (M1) to Specific Development District No. 60 (SD -60). 1. SD -60 would allow new automobile sales and leasing; used automobiles sales in conjunction with new automobiles sales; parking structures not exceeding three levels in height; detailing of automobiles in conjunction with an approved dealership; sales of new (or new and used) motorcycles or personal water craft; new car leasing office not in conjunction with a new car dealership (with a Conditional Use Permit); and parking structures not exceeding five levels (with a Conditional Use Permit). Ordinance No. NS -2650 Page 1 of 24 8 -143 2. Amendment Application No. 2003 -03 is consistent with the General Plan, including but not limited to its goals and policies to: a. Promote the balance of land uses to address basic community needs. Land Use Element Goal No. 1.0. b. Promote land uses which enhance the City's economic and fiscal viability. Land Use Element Goal No. 2.0. C. Balance the economic and fiscal benefits of commercial development with its impacts on the quality of fife in the City. Land Use Element Policy 2.6. d. Encourage the creation of new employment opportunities in developments which are compatible with surrounding land uses, and provide a net community benefit. Land Use Element Policy 2.6. e. Support developments that create a business environment that is safe and attractive. Land Use Element Policy No. 2.8. 3. The City Council has weighed and balanced the general plan's policies and has determined that based upon this balancing that the zoning of properties 1861, 1901, 1921, 1941, 1961, 2009 and 2101 East Edinger Avenue from Light Industrial (M1) to Specific Development District 60 (SD -60) Is consistent with the purpose of the general plan. 4. The City Council also adopts as findings all facts presented in the Request for Council Action dated April 19, 2004 accompanying this matter. 5. For these reasons, and each of them, Amendment Application No. 2003 -03 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare, E. Zoning Ordinance Amendment No. 2003 -03 has been filed to amend the Specific Development District 60 (SD -60). Section 2. The City Council has reviewed and considered the information contained in the negative declaration and the Addendum for Environmental Review No. 2003 -149 prepared with respect to this Project. It is determined that, as required pursuant to the California Environmental Quality Act ("CEQA ") and the State CEQA Guidelines, a negative declaration adequately addresses the expected environmental impacts of this Project. On the basis of this review, the City Council finds that there is no evidence from which it can be fairly argued that the project will have a significant adverse effect on the environment. The City Council hereby certifies and approves the negative declaration and the Addendum and directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. ordinance No. NS -2650 Page 2 of 24 8 -144 Pursuant to Title XIV, California Code of Regulations ( "CCR ") §735,5(c)(1), the if City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code §711.2: and Title XIV, CCR §735.5(x)(3), the payment of Fish and Game Department filing fees Is not required in conjunction with this project. Section 3. The real properties located at 1651, 1901, 1921, 1941, 1961, 2009 and 2101 East Edinger Avenue are hereby reclassified from Light Industrial (M1) to Specific Development District No. 60 (SD -60). Amended Sectional District Map number 20 -5 -9, showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. (AA No. 2003 -03). Section 4. Specific Development District No. 60 (SD -60) as set forth in Exhibit "B ", attached hereto and Incorporated as though fully set forth herein, is approved adopted in its entirety. Section S. if any section, subsection, sentence, clause, phrase or portion of this ordinance is for any ;reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that It would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this V day of May, 2004. APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: to Kylee 0 Otto Deputy tty Attorney 8 -145 Ordinance No. NS -2650 Page 3 of 24 AYES: Councilmembers: Alvarez, Bist, Franklin, Pulido. Solorio (5) NOES: Councilmembers: None (0) ABSENT: Councilmembers: Garcia (1) ABSTAIN: Councilmembers: Christy (1) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS -2650 to be the original ordinance adopted by the City Council of the City of Santa Ana on May 3. 2004, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: erk of the Council City of Santa Ana Ordinance No. NS -2650 Page 4 of 24 8 -146 11 j 0 - ------- ----- --- ------------- mq t MY 7MI-- —.— K41 mi M1 $000 M1 MI WIN All A. ml MI e .,CI�*Vov Il WT`f4MVIL MgUbY"w AI AoncmCm CA tMAAI� 4EXR1,061 "Mm". Osh r; mH milmpwAm =�sw. W) MSTR� w KAWI�M, CY � -XAlw`HCA W MLMmss 0 �A IVAT. ".r", 'vwmTww4Mi[ i, R�f%044 MmvwwN KO RAMNIOU V01"10A1j 61 Li ;.! —2- I LIM P-1 4-60, i0a. +*AA 9-4 Ak 1W 141 Mill Fill �qajqWM PRCrAqCD OY Till: PLANNINO 01VISFON CITY Of SANTA ANA CAWFORMA Exhibit 'IN' 8-147 ti Ordnance No, NS-2650 Page 5 of 24 Santa Ana Auto Mail/ Specific Development No. 60 (SD -60) Section f. Applicablllty of ordinance. The specific development zoning district for the Santa Ana Auto Mall as authorized by Chapter 41, Division 26, Section 41 -593 el/seq. of the Santa Ana Municipal Code, is specifically subject to the standards and regulations contained in this plan for the express purpose of establishing land use regulations and standards. Standards currently contained within the Auto Mall Architectural and Design Standards are being consolidated into the SD document. With this consolidation of standards, it is the intent that Specific Development 60 become the primary document that governs the Auto Mall. All other applicable chapters, articles and sections of the Santa Ana Municipal Code shall apply unless expressly stated or superseded by this ordinance. Section 2. Purpose. The Specific Development Plan No. 60 (SD -60) consists of standards and regulations hereby established for the express purpose of protecting the health, safety and general welfare of the people of the City by promoting and enhancing the value of properties and encouraging orderly development. Section 3. Uses Permitted. A. Uses Permitted in the SD -60 District: Ordinance No. NS -2650 Page 6 of 24 New automobile sales and leasing In conjunction with an approved dealership. 2. Used automobiles sales in conjunction with new automobiles sales, provided the sale of used automobiles is subordinate to new automobile sales and the area devoted to used car display does not exceed the area used to display new automobiles. 3. Parking structures not exceeding three levels in height and not higher than 40 feet. 4. The detailing of automobiles in conjunction with an approved dealership. Exhibit "B" Page 1 of 19 5. Sales of new (or new and used) motorcycles or new (or new and used) personal water craft (e.g„ wave runners) only in conjunction with an approved dealership which is located on a parcel fronting Edinger Avenue; provided, however that any used motorcycle or personal water craft sales must be ancillary to the new sales, which at a minimum shall mean that the majority of area devoted to indoor or outdoor display shall be for new products. B. Uses permitted subject to a conditional use permit: 1. New car leasing office not in conjunction with a new car dealership. 2. Parking structures not exceeding five levels and not higher than 60 feet. Section 4. Development Standards. A. Building Setbacks. 1. Showroom buildings. The glazed surface of all showrooms shall be a minimum of 40 feet and a maximum of 100 -feet from the front property lines. 2. Service /Accessory structures. All service /accessory buildings shall be setback a minimum of 85 feet from the Edinger Avenue right -of -way and shall be located and designed so that display areas, setbacks, paving, fencing and landscape patterns along Auto Mall Drive are maintained. All service /accessory buildings shall be setback a minimum of 80 feet from the Auto Mall Drive right -0f - -way. 3:. Parking Structures. All parking structures shall be setback a minimum of 130 feet from all public and private street right -of -way. B. Building Height. Exhibit "B" Page 2 of 19 8 -149 Ordinance No. NS -2650 Rage 7 of 24 1. Showroom buildings. The glazed portion of all showrooms shall be a minimum of 16 feet and a maximum of 35 feet in height. Office space attached to the showroom structure may exceed the height of the showroom, but shall not exceed 35 feet. Service /Accessory structures The height of all accessory buildings or buildings used exclusively for service shall not exceed 24 feet. 3. Parking structures. Parking structures up to and including three levels shall not exceed 40 feet in height. Four and five -story structures shall not exceed 60 feet in height. C. Protective Screening. Each service area and bulk car storage area for each lot shall be screened from public view along each street and plaza within the Auto Mall by a minimum six foot high wall and from each street outside the Auto Mall by a minimum eight foot high wall. ;2. The service and dealer inventory storage areas shall be screened from and be oriented away from public view including the freeway. All mechanical equipment shall be screened by a solid wall so that it is not viewable by the public. All air - conditioning or other equipment located on the roof of a building shall be screened from public view, preferably by the building parapet. D. Site Geometry. Ordinance No. NS -2650 Page 8 of 24 All showrooms should be symmetrically oriented towards the central public road round- abouts adjacent to their sites and /or Edinger Avenue. The buildings are encouraged to be simple, sculptured geometric shapes (triangles, circles and rectangles), with the flush sleekness of streamline automotive design. The use of curving or rolling glass surfaces and opaque panels on the public - oriented facades is encouraged within the rigid geometric framework. Exhibit "B" Page 3 of 19 8 -150 0 Section 5. Architectural Style. A. All new buildings and additions to existing buildings shall follow the provislons outlined in SD -60 and the Architectural Design Standards for the Auto Mall. Section 6. Parking Requirements. A. The minimum off - street parking requirement for auto mall dealerships are as follows: 1. One parking space for each 1,000 square feet of display area; plus 2. One parking space per truck or van used in connection with the business to be stored on the premises at any one time; plus 3. Three parking spaces per work bay for the first three bays; plus 4. Two parking spaces per work bay in excess of three bays; plus 5. Thirty parking spaces for employee parking; 6. Vehicle repairs bays shall not be counted as parking spaces. B. Parking requirements for all other uses permitted in Specific Development 60 shall be established per Article XV (Parking Ordinance) of the Santa Ana Municipal Code. Section T. Landscape Requirements. A. Streetscape and offsite areas - Plans indicating compliance with the following shall be submitted for review and approval by the Planning Commission. (Modified by the Planning Commission at its meeting on 3.22 -04). 1,. The streetscape and off -site areas shall be maintained per the approved overall landscape plan and the standards contained In SD -60. Exhibit "B" Page 4 of 19 Ordinance No. NS -2650 Page 9 of 24 8 -151 2. An enhanced corner landscape treatment is required at all street entrances into the Auto Mail and shall be designed to conform to the Edinger Street and Ritchey Street entry plan (Attached). 3. A landscape planter not less than 10 feet wide shall be located adjacent to all sides of a parking structure that faces, or is visible from a freeway, or publiclprivate street. B. On -site Landscaping Requirements - Plans indicating compliance With the following shall be submitted for review and approval by the Planning Commission. (Modified by the Planning Commission at its meeting on 3- 22 -04), There shall be a landscape setback of not less than 7 feet along Auto Mall Drive, except at approved display areas. 2. There shall be a minimum landscape setback of not less than 20 feet adjacent to Edinger Avenue. Decorative pavement may be utilized for vehicle display areas per the approved Edinger Avenue Street Plan (Attached). 3. Each dealership /lot shall have 5 percent of the on -site area, exclusive of all building footprints and street oriented landscaping, in landscaped area. 4. Each required on -site landscape planter shall be 8' /x' wide by 18' long and be planted with a minimum of one 24 -inch box tree and eleven 5- gallon size shrubs plus groundcover. 5. One landscaped planter as described above is required for every ten parking spaces used by the general public. 6. The plant materials utilized for on -site landscaping shall be per the designated landscape palette (Attached). 7. The landscape design shall be consistent with the existing Auto Mail landscape concept of tree clustering at display frontages and Internal planter areas. C. Haddscape Materials. Ordinance No. NS -2650. Page 10 of 24 Exhibit "B" Page 5 of 19 8 -152 Paving materials shall be limited to the following: 1. Concrete pavers matching those used in the adjacent street side dealer display areas. 2. Exposed aggregate concrete. Exposed aggregate shall be a maximum diameter of 'A inch with a maximum surface retardant of "medium reveal" applied, Integral color of the concrete shall be approved by the Architectural Review Board. 3. Plain concrete with a broom finish. 4. Asphalt concrete. D. Walls and Fencing. All exterior (property line) fencing and screening walls shall be constructed of masonry materials. a. All screen walls on -site and all walls exposed to public view shall have clinging vines attached. b. All screening walls shall be provided with a 3 -foot wide landscape planter located adjacent to the wall where such is in public view. 2. Chain link fencing may not be used except as internal fencing on dealerships. All chain link fences shall be screened from view by a solid masonry block wall. 3. Bollards placed on dealer property for vehicle detainment purposes shall be integrated into planting areas in a manner that effectively and aesthetically screens them. Bollards shall be a maximum of 18 inches high above finished grade. No chains shall be strung between bollards or planter boxes. Soction 8. Signage Requirements, A. Electronic Reader Board Sign. 17. One electronic reader board sign for the Santa Ana Auto Mali shall be permitted along the Costa Mesa Freeway (SR -55). The sign shall be located on parcel 6 or parcel 7 per Exhibit A. Exhibit 'B" Page 6 of 19 Ordinance No. NS -2650 Pagel 1 of 24 8 -153 2. The maximum height for the reader board sign shall be 70 feet in height. 3. The maximum square footage of the sign face shall be 835 square feet. 4. The copy for the area for individual dealer merchandise shall be limited to either the registered logo or the manufacturer's product name. Colors utilized shall be the standard auto manufacturer's color code, which is typically a shade of red, blue or black. B. Freestanding Signs. No permit shall be issued for a freestanding sign which does not comply with the following standards: 1. Number. a. The number of freestanding signs permittable on an integrated development site shall be as follows: Total Street Front= Number 0-250 1 251-500 2 501-750 3 751-1000 4 1001 or more 5 2. Location and Design. Ordinance No. NS -2650 Page 12 of 24 a. No more than one freestanding sign advertising or Identifying the same business activity shall be permitted on each street frontage on which the integrated development site has frontage. b. The freestanding sign shall be located in a landscaped planter having an area at least twice as large as the area of one face of the sign. c. No sign shall use mirrors reflecting a direct light source or utilize flashing, blinking or sequenced lights. No sign shall utilize unshielded incandescent, fluorescent or neon. Exhibit "B" Page 7 of 19 8 -154 d. No freestanding sign shall be no closer than 100 feet from another freestanding sign on the some site. e. No freestanding sign shall be located in the triangular area measured 15 by 15 feet. The freestanding sign shall not exceed 7 feet in overall height or 5 feet in overall width. g. The copy area of a freestanding sign shall not exceed 40 percent of the sign face. h. The base of the freestanding sign is to be made of rough sand - blasted concrete with rounded ends, 18 inches high and shall have a two inch high, one -inch deep contrasting horizontal metal reveal on all sides, four inches from the top. C. directional Signage. No permit shall be issued for a directional sign which does not comply with the following standards: 1. Minor freestanding directional signage (entrance, service, etc) shall be consistent with the design and materials of the full- size freestanding sign. 2. Freestanding directional signs shall not exceed four square feet In sign area and a maximum height of four feet shall be allowed. 3. Freestanding directional signs shall contain only that information necessary for on -site circulation, parking and site information. A registered manufacturer's logo may be utilized on the directional signs for the service area. 4. Wall- mounted directional signs shall not exceed four square feet, Such directional signs shall contain only that information necessary for on -site circulation, parking and site information. No advertising or logos are permitted. D. Wall Signs. Exhibit 'B" Page 8 of 19 8 -155 Ordinance No, NS -2650 Page 13 of 24 No permit shall be issued for a wall sign which does not comply with the following standards: Number. a. Dealerships offering two or less manufacturer's makes of new automobiles for sale shall be permitted one wall sign for each make on each wail of the showroom building up to two signs per make of automobile. b. Dealerships offering three or more manufacturer's makes of new automobiles for sale shall designate one manufacturer's make that he carries his primary line of new automobiles, The remaining makes of new automobiles shall be designated as secondary for signage purposes. Primary and secondary lines shall be permitted the following: (i) The primary make of new automobiles shall be permitted a total of two wall signs. The wall sign(s) may be placed on the showroom and/or service building, (ii) Secondary car lines shall be allowed one wall sign for each make of automobile. The signs shall be located on the showroom building. Sign Area and Length. a. The sign area shall not exceed 40 percent of the signable area, to a maximum of two square feet of sign area per lineal foot of building frontage. b. The horizontal dimension of any wall sign shall not exceed 80 percent of the horizontal dimension of the building elevation on which the sign is located. 3. Location. Ordinance No. NS -2650 Page 14 of 24 a. The signs on the showroom or main service building shall be located on the top of the fascia or wall facing the main street access. Exhibit "B" Page 9 of 19 8 -156 b. No sign shall project above the parapet, canopy fascia, or wall to which It is attached, nor above the roofline if attached to the roof. Q No signage is allowed on the roof of any building. 4. Design. a. Wall signs shall consist of individual neon box letters with formed Plexiglas faces in deep channel metal backs. The metal backs may be either satin anodized aluminum or baked enamel steel (three inches deep). The Plexiglas letters are to be kept in the frame with an extruded anodized aluminum'L' molding retainer. b. Maximum height of the letters to be used shall be 36 inches. E. Special Event Displays. No dealership shall install or maintain or allow to be installed or maintained on the property occupied by such company any special event sign or display, except in accordance with the following requirements: 1, No special event sign or display shall be permitted for individual dealerships. A special event signage permit shall only be issued for an Auto Mall wide sales promotion. All dealerships must take part in the event. 2. The special event sign and display shall be limited to two banners per dealership and sales tents. No use of flags, pennants, streamers or balloons will be permitted. Banners shall not be displayed on or from a parking structure. 3. The special event sign(s) or display shall not be maintained for more than 14 successive days. 4. No more than four special event signs or displays shall be permitted for the Auto Mall in a one -year period. F. Theme Decoration or Display. Exhibit "B" Page 10 of 19 Ordinance No. NS -2850 Page 15 of 24 8 -157 Permanent or temporary theme decorations may be installed on City light standards with Zoning Administrator's approval, The decorations shall be installed on all light standards within the Auto Mall. The installation of decorations shall be at Auto Mall Dealership's Association expense, G. Auto Mall Entry Monument signs The Auto Mall entry monument sign shall be approved by the City of Santa Ana Planning Division and designed per attachment. Section 8. Lighting Requirements, A. Dealership lot and street lighting standards shall be as follows; The type of luminaries and pole selected to be used for all exterior lighting shall be to the equivalent to the specifications found in G.A.R.D.C.O. Lighting's 'Form Ten H' luminaries, with type three medium cutoff reflector, or other acceptable alternative. All bronze anodized aluminum luminaries shall be provided with 1,000 -watt metal halide lamps. Street lighting will be 250 - watt high - pressure sodium lamps. 3. The mounting height of all luminaries is to be 24 feet from ground level. 4. An initial average of 50 -75 foot - candles shall be maintained from interior lot lighting with a maximum to minimum uniformlty of three to one. Frontline lighting shall have a maximum to minimum uniformity of one and one -half to one, and initial average of 75 -100 foot - candles. 5. The bronze anodized aluminum poles are to be square in crass section and shall be continuous to ground mounting level with adequate protection by means of a raised six -inch circular concrete curb with a minimum three -foot radius. 6. The average spacing for interior lot poles with two luminaries per pole is to be 60 feet center to center. This is based on a typical 60 -65 foot aisle width. The spacing for all lot frontline poles with single inward facing luminaries is to be 40 feet center to center. Ordinance No. NS -2650 Page 16 of 24 Exhibit "B" Page 11 of 10 8 -158 LANDSCAPE PALETTE The following plant palette shall be used for guideline purposes in developing the on -site landscape plans for properties withln Specific Development No. 60. The streetscape in off -site or common areas shall remain consistent with the existing landscape palette and pattern of development. Any changes to the existing plant palette must be universally incorporated throughout the Auto Mall common area streetscape, and is subject to approval of the City. Additional plant material may be incorporated into the landscape palette if approved by the Planning Manager. Edinaer Avenue The off -site (streetscape) tree for Edinger Avenue is the London Plane Tree (Plafanus acerifolla "Bloodgood), which shall be incorporated on -site in clusters along the Edinger Avenue frontage. On -site Landscape Palette COMMON NAME BOTANICAL NAME Trees Queen Palm Arecastrum romanzoffianum 12 -foot trunk height (minimum) Mexican Fan Palm Washingtonia robusta 12 -foot trunk height (minimum) Peppermint Willow Agonis flexuosa Fern Pine Podocarpus gracilior Ornamental Fig Ficus species Jacaranda Jacaranda mimosifolia Magnolia : Magnolia species Trumpet Tree Tabebuia ipe Brisbane Box Tristania conferta Exhibit "6" Page 12 of 19 Ordinance No. NS -2650 Page 17 of 24 8 -159 Lemon Gum Eucalyptus citriodora Date Palm Phoenix dactylifera 15 foot bare trunk height minimum Shrubs Tupidanthus Tupidanthus calyptratus Hibiscus Hibiscus rosa — sinensis Dwarf Oleander Nerium oleander'Petits Salmon' or 'Petite Pink' . Dwarf Pittosporum Pittosporum tobira'Wheeler's Dwarf Variegated Pittosporum Pittosporum tobira 'Variagata' India Hawthorn Ralphiolepis indica'Jack Evans' Compact Natal Plum Carissa grand Mora 'Boxwood Beauty' or 'Tuttle' Lily of the Nile Agapanthus africanus Privet Ligustrum 'Texan um' Compact Shiny Xylosma Xylosma congestum 'Compactum' Pink Escallonia Escallonia fradesii Orange Jessamine Murraya paniculata. Temstrornia Ternstroemia gymnanthera Frasers Photinia Photinia fraseri Viburnum Viburnum davidii Japanese Boxwood Buxusjaponica Daylily Hemerocallis and cultivars Exhlbit "B" Page 13 of 19 Ordinance No. NS -2850 Page 18 of 24 8 -160 New Zealand Flax (dwarf varieties) Phormlum tenax Bank's Yellow Rose Rosa banksfae'Lutea' Bank's White Rose Rosa bankslae'Alba Plena' Ground Covers Star Jasmine Trachelospermum jasminoides Prostrate Natal Plum Carissa grandiflora 'Green Carpet' Hahn's Ivy Hedera helix'Hahni' Turfgrass ! 'Marathon' fescue Trailing Lantana Lantana montevldensis Myoporum Myoporum parvifollum Creeping Rosemary Rosemarinus offlclnafis'Prostratum' ornamental Strawberry Fragaria chiloensis Vines Boston Ivy Ampelopsis'Veitchi" Climbing Fig Ficus repens Blood Red Trumper Vine Distictus buccinatoria Seasonal Color As approved by the Dealers Association, but not as a replacement for existing off -site or common area landscape. Exhibit "B" Page 14 of 19 Ordinance No. NS -2650 Page 19 of 24 8 -161 ARCHITECTURAL DESIGN STANDARDS All buildings within the Santa Ana Auto Mall shall be designed in a 'high -tech' Industrial design. The Santa Ana Auto Mall's Architectural Design Standards shall be used to determine the structures compliance with the 'high-tech' Industrial motif. The use of exposed wood, tile roofs and mansards, and literal traditional architectural motifs shall not be permitted, In addition, the Auto Mall Dealers Association shall review and approve the architectural design for all new buildings and remodels: A. Service buildings, accessory structures and parking structures shall be designed to incorporate, on at least a portion of the exterior building, the same materials and colors as those used for the showroom. B. The public areas and service buildings must be compatible in style and material selection. 1. Horizontality: The expression of horizontality in each building is of prime importance for the unification of the Mall. To achieve this purpose, the.use of continuous horizontal elements shall be required. a. Twelve -inch high horizontal metal reveals (one and one -half Inches minimum depth) is encouraged to be used for banding and cladding terminations. b. Continuous, light- emitting strip windows are encouraged to be incorporated into the non - showroom, general office service area. Vertically mullion less windows would enhance and promote the high -tech imagery and are, therefore, recommended. c. All Gadding shall not emphasize the vertical except at termination points (changes in direction or corners). 2. Exposed Sub - Elements: Well - detailed exposed structural steel and H,V.A.C, elements shall be used. This includes the extensive use of painted trusses, spaceframes, metal deck ceilings, track lighting and well- detailed ducting /registers. Ordinance No. NS•2650 Page 20 of 24 Exhibit "B" Page 15 of 19 8 -162 3. Glass: Extensive use of tinted glass in showroom, office and light- requiring service building areas should be used. Compatible opaque (spandrel), insulated glass is suggested for areas requiring non - vision glazing for continuity of effect. The glass to be used shall have a bluish tint and slight reflectivity in non - direct auto viewing area. Vision glazing specifications are to be equivalent to P.P.G. 'Solarban 570 -30 Sapphire Blue' series. No mirror -glass or highly reflective glass maybe used. . 4. Wall Cladding — Flat Metal Panels: Smooth aluminum panels may be used in flat or curved cladding for the opaque showroom and office exterior wall cladding. This also applies to service building cladding termination (ends, fascias, soffits and corners). Quality and trueness of material (e.g., no oil- canning permitted) and workmanship are of the utmost importance. Panels shall be solid aluminum, and shall be impervious to water, and non- flammable. The panel edges shall be brake - formed at right angles to the frontal plane and all corners are to be welded and ground smooth, It shall provide a front access fastening system which means individual panels may be removed at any time. The thermally dynamic fastening system shall insure maximum weather integrity, The system shall also include an internal drainage system which directs condensation to the outside of the building. The finish shall be an anodized or Kynar Tri -X metallic finish, 5. Materials: a. Panels shall be fabricated from minimum .120 (3.04 mm) thick aluminum solid plate of 3003 -1-1134 or 5005 -H32 AQ alloy, in accordance with architectural documents and manufacturer's approved drawings including verified dimensions. b. Extruded aluminum support members shall be a minimum .093" (2.36 mm) thick 6063-T52 alloys; supplied pre -cut to size, including all necessary stainless steel fasteners for concealed Installation. c. The metal cladding system including required stiffeners and sealants shall meet the specified requirements for wind loading, air infiltration and water penetration. Exhibit "B" Page 16 of 19 Ordinance No. NS -2950 Page 21 or 24 8 -163 d, The anchorage system shall be designed so that the panels are secure, yet "free floating ", to accommodate expansion and contraction; and so that Individual panels may be installed or removed without disturbing adjacent panels. Panel specifications are to be equivalent to 'Techwall' by Conspec Systems. B. Wall Cladding— Horizontal - Shaped Profile Me I Panels: Horizontal deep rib metal siding decking may be used for the major service buildings exterior and may be used for public oriented building exterior cladding. The siding must be of the highest quality, and seamless (no apparent intermediate joints). If such siding is used for the service building, other building materials must be incorporated into the design of the structure in accordance with Section B.1 of these Standards. The specifications for'Steelite High Rib Panels' were used as a basis for the following guidelines. The primary metals shall be galvanized steel which is a quality, grade 'A' steel which meets the ASTM A446 specifications. A corrosion resistant finish is achieved by a continuous hot -dip commercial galvanizing process in accordance with ASTM A526 090 (1.25 oz [275 g /mg). This material shall be the substrate for all panels. An alternative metal is galvalume which is a steel sheet coated with all aluminum -zinc alloy applied by the continuous hot - dip method.: Galvalume provides good resistance to heat and corrosion. The color coating for the panel shall be silicone polyester, which is a blend of premium polyester resins and silicone. 'SP' provides a high resistance to ultra- violet rays as a durable coating over G -90 (1.25 oz [275 g /ml) galvanized steel. 'SP' shall meet the requirements of a long -term exterior finish with excellent weather - ability. 'SP' finish shall provide an optimum use of silicone together with a premium quality polyester resin for long life. Alternately, the panel shall be color coated In fluorofinish which is a premium fluorocarbon called polyvinyledine fluoride, (KYNAR 500 70 %). It is applied to G -90 (1.25 oz 1275 g /mg) galvanized steel. Exterior performance characteristics should include color integrity, film flexibility and resistance to chalking, Other important properties of finish shall be high resistance to ultra - violet radiation, and resistance to weathering. The panel profile that is encouraged to be used Is deep profile rib 18 -gauge minimum run horizontally. Maximum permissible deflection is 10 be 1/120. Hat shaped and "Z "- shaped subgirts should be placed at every structural support and not more than 4'-0" (1.22 mm) on center between supports. Trueness of material and quality of workmanship, with proper detailing of material termination, shall be of the utmost importance. Ordinance No. NS -2650, Page 22 of 24 Exhibit "B" Page 17 of 19 8 -164 7. Plaster: Smooth plaster (stucco) may be used but is not highly recommended because of uncertainty. In surface quality control. If plaster is used, the highest degree of detailing, materials and workmanship will have to be observed. Here again, metal horizontal banding must be incorporated. 8. Concrete Panels: Tilt -up /pre- formed concrete panels may be used in perimeter wall and building wall applications. The form liner profile specifications and configuration that may be used must be equal to those produced by Symons Corporation's Architectural Form Liners. The five options are to be equal to: a. 3/18" deep, short ripple rib 4' -10" (no reveal) b. '/:' deep rib, 4' x 10' (reveal) c. Extruded VA" rib, 2" O.C., 1' x up- to -30' (no reveal), run horizontally J d. Sandblast #2 medium, 4'x 10' e. Sandblast *3 coarse, 4'x 10' Continuous and horizontal metal reveals must be incorporated to tie complex together and to be used a construction joints. 9. Concrete Block: Concrete block masonry may be used for wall construction in the dealership service areas. It is important to remember that the clean, smooth, horizontal, industrialized character must be achieved. Contrasting the concrete block with deep tool- raked, horizontal joints, horizontal 'Spectra Glaze' or metal, contrasting bands or reveals and structures, and glass is highly encouraged. A very suitable alternative is the use of prefaced concrete masonry units with specifications similar to 'Spectra Glaze II', by Bums and Russell Company. These ceramic -faced masonry units are low cost, attractive, avoid the need for finishing wall 'surfaces where required, and reduce operational/life cycle costs. This glazed block may also be used in areas subject to public view. Exhibit "B" Page 18 of 19 Ordinance No, NS -2650 Page 23 of 24 8 -165 10. Rooftop Elements: All elements on roofs must be attractive and rhythmically placed and/or attractively screened from view, These elements will be very visible because of the freeway adjacency. Corrugated metal screening is not permitted. 11. Color: The colors selected for the exterior of the building must serve to integrate all elements of the dealership and enhance the aforementioned character goals. The use of strong, deep colors, which may highlight rhythmic elements, is encouraged. The colors found in each of the automakers' logo standards are a desirable direction to be taken. Black and white colors may be used; earth tones shall not be used for the buildings' walls and structural elements. This is especially important if block masonry units are used. Color selections should accentuate distinction and elegance, Ordinance No. NS -2650 Page 24 of 24 Exhibit "B" Page 19 of 19 8 -166 ►�1 C Q 0 EXHIBIT E LANDSCAPE AND SIGNAGE CONCEPT PLANS a 600090435v6 EXHIBIT E -I 8 -167 EXHIBIT E -2 600090435v6 EXHIBIT F AUTO CENTER CC &Rs EXHIBIT F -I 600090435v4 F • •� CITY OF SANTA ANA ECONOMIC DEVELOPMENT AGENCY-M25 20 CIVIC CENTER PLAZA P.O. BDX 1988 SANTA ANA, CA 92702 Fr" RKyrdlna RpuaNd by d» Com munRY Red$" OPMAI Agony at fM Clty ® Y 1271 i CONFORMED Oppy Not �'ompared with Original ��ROE E NO FFIC C RtCo$ 1A -s 4o p)W ,M 1 7'86 CAL - a DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SANTA ANA AUTO MALL SANTA ANA, CALIFORNIA Adopted by The Santa Ana Redevelopment Agency 8 -170 DECLARATIONS OF COVENANTS, CONDITIONS AND RESTRICTIONS SANTA ANA AUTO MALL THIS DECLARATION is made by THE SANTA ANA REDEVELOPMENT AGENCY (the "Agency "). Recitals A. The Agency, a public body, corporate and politic, duly created, established and authorized to transact business and exercise its powers under and pursuant to the California Community Redevelopment Law (Health & Safety Code Section 3300 et seq.), is the owner of all that certain real property (the "Auto Mall Site ") located in the County of Orange, State of California, more particularly described in Exhibit A attached hereto and incorporated herein. B. The Agency desires and intends to sell or lease portions of the Auto Mall Site for development by various automobile dealers as an automobile sales center (the "Auto Mall ") in order to implement and carry out the Redevelopment Plan (the "Redevelopment Plan ") for the South Main Street Redevelopment Project (the "Project "), adopted by the City Council of the City of Santa Ana by Ordinance No. N6 -1639 on July 6, 1982. 8 1171 C. The Community Redevelopment Law provides that adequate safeguards shall be imposed so that the work of redevelopment will be carried out pursuant to the official Redevelopment Plan and provides for the retention of controls and the establishment of restrictions and covenants running with the lands sold for private use. D. The Agency desires and intends to impose upon the Auto Mall Site mutually beneficial restrictions for the purpose of providing adequate safeguards in order that the work of redevelopment will be carried out pursuant to the Redevelopment Plan; to insure the best use and the most appropriate redevelopment and improvement of each parcel within the Auto Mall; to protect the future owners of parcels against improper use of surrounding parcels; to protect against depreciation in value of property in the Auto Mall; to preserve insofar as practicable the aesthetic development of the Auto Mall; and in general to provide an adequate plan for safeguarding the work of redevelopment in maintaining a high quality of improvements on said property, thereby enhancing the value of investments made by the owners of parcels therein. 8 -172 Declaration The Agency hereby declares that the real property within the Auto Mall Site is held and shall be held, sold, conveyed, encumbered, leased, used, occupied and improved, subject to the following limitations, covenants, conditions and restrictions which shall run with the real property and shall be binding on all parties having any right, title or interest in the described property or any part thereof, their heirs, successors and assigns and shall inure to the benefit of all property within the Auto Mall Site and each owner thereof. I. DEFINITIONS 1.01 "Agency" shall mean the Santa Ana Redevelopment Agency. 1.02 "Architectural Design Standards" shall mean those design guidelines as approved by the Agency and Dealers attached hereto as Exhibit C developed to insure the quality of development within the Auto Mall Site. 1.03 "Architectural Review Board" shall mean a committee of members consisting of two (2) automobile dealership operators (alternating representation) having 3 8"- 173 rights, powers and responsibilities applying to property within the Santa Ana Auto Mall; one (1) licensed architect; one (1) staff member from the City's Planning Division; and one (1) staff member from the City's Economic Development Agency. The Architectural Review Board shall function pursuant to regulations and procedures established by the Agency. 1.04 "Automobile" shall mean car, auto, truck, van, recreational or any other motor vehicle. 1.05 "Auto Mall" shall mean the retail automobile sales, service and auto leasing complex on the Auto Center Site. 1.06 "Auto Mall Site" shall mean all that certain real property described in the legal description in Exhibit A and as shown on the Map attached hereto as Exhibit B and incorporated by reference herein. 1.07 "Building" shall mean a permanently located structure having a roof. 1.08 "Bulk Car Storage" shall mean the temporary storage of automobiles which have not been prepared for sale. 4 8 -174 1.09 "City" shall mean the City of Santa Ana, California. 1.10 "Common Areas" shall mean all that property to be maintained by the Dealers Association, the costs of which shall also be shared commonly by the Dealers Association as provided herein. said property is defined as; (a) landscaping areas within the Plazas; (b) Edinger Avenue and Ritchey Street landscaped entry ways; (c) security gate and guardhouse premises; and (d) all parkways within the public right of way between the curb line and property line along Edinger Avenue, Ritchey Street, Auto Mall Drive, and Dan Gurney Drive. 1.11 "Dealer" shall mean a business operating a franchise for the sale of new automobiles on a Lot, or part thereof. 1.12 "Dealers Association" shall mean a non - profit corporation, created and functioning for the purposes of administering the Auto Mall, and promoting, managing and controlling activities, public relations in and for the Auto Mall and maintaining certain exterior landscaping. 5 8 -175 1.13 "Lot" shall mean any parcel of land shown upon Exhibit B or part thereof as may hereafter be duly approved by the Dealers Association. 1.14 "Mortgage" shall mean and include a deed of trust as well as a mortgage in the conventional sense. 1.15 "Owner" shall mean the record owner, whether one or more persons or entity, of a fee simple title to any Lot in the Auto Mall Site, with the exception of the Agency. 1.16 "Plazas" shall mean those central public road round- abouts and landscaping therein as shown more fully on Exhibit B. 1.17 "Primary Identification Signs" shall mean signs to identify the Auto Mall from the Costa Mesa Freeway and from Edinger Avenue and Ritchey Street including appurtenant materials and facilities for the support, protection, lighting, and landscaping of said signs. 1.18 "Service Car Storage" shall mean the temporary storage of automobiles which have been brought in for repair or servicing. 8-176 II. DEVELOPMENT AND IMPROVEMENT OF THE LOT 2.01 General Development A Lot, or any portion thereof, or a building may be used for new and used automobile sales, service, body repair and painting or for any purpose providing it is related to the customary activities involved in the retail sale, servicing and repair of new Automobiles. In the event that a Lot is subdivided or partitioned for any reason, no portion of said Lot shall be sold, leased, assigned, transferred or conveyed by an Owner without the approval of the "Agency" which approval shall not be unreasonably withheld and shall be based upon a determination whether such sale, lease, assignment or other conveyance is compatible with the general scope of development of the Auto Mall and other requirements set forth in this Declaration and whether the resultant Lots are of sufficient size and shape for the intended uses. All Lots shall be developed substantially in accordance with the Architectural Design Standards approved by the Agency for the Auto Mall, a copy of which is attached hereto as Exhibit C. Each dealership facility shall be oriented so that the showroom for the display of automobiles is focused toward 8 -1 777 the Plazas and provide a view of the showrooms from the plazas. Buildings shall be of high architectural quality, both individually as well as in the context of the total complex, and Lots shall be landscaped in an aesthetically designed manner. The shape must be consonant with, visually and physically related to, and an enhancement of adjacent buildings within the Auto Mall Site. 2.02 Architectural Review and Approvals No building, structure or other improvements shall be commenced, erected, placed, altered, maintained or permitted to remain on any Lot, unless the plans and specifications showing the plot layout, all exterior elevations, structural design, materials and colors, parking, signs and landscaping shall have been submitted to and approved in writing by the Architectural Review Board. Schematic drawings and specifications shall be submitted to the Architectural Review Board before commencement of construction documents. The Agency may condition its approval upon the implementation of any recommendations, limitations or conditions made by the Architectural Review Board not in conflict with this Declaration. No permit shall be issued for the construction of any new building, structure or other improvement or any addition to an r] 8 -178 existing building, structure or other improvement in the Auto Mall Site until such approval has been granted. 2.03 Setback Lines All building setbacks shall be in conformance with the Architectural Design Standards for the Auto Mall as set forth in Exhibit C hereto. 2.04 Protective Screening Each Service Car Storage area and Bulk Car Storage area for each Lot shall be screened from the public view along each street and plaza within the Auto Mall by a minimum six foot high wall and from each street outside the Auto Mall by a minimum eight foot high wall in accordance with the Architectural Design Standards. 2.05 Architectural Style of Buildings and Other Improvements (a) All buildings, structures and other improvements shall carry out an overall architectural theme as indicated in the Architectural Design Standards and in a manner acceptable to the Architectural Review Board. (b) A multi -level dealer facility may contain roof -top parking in order to more fully utilize the site. 8,-179 (c) Walkways and new car display pads shall be in conformance with the approved project design concept. (d) If bollards are installed adjacent to the property line in the landscaped areas along interior Auto Mall streets, they shall be constructed in accordance with the Agency's specifications as may be established by a landscape architect. Such bollards shall not exceed eighteen (18) inches above ground elevation and shall be spaced in the manner provided by the Agency's landscape architect. Colors, materials, and dimensions of bollards shall be subject to approval of the Architectural Review Board. The bollards will be integrated into planting areas in a manner that effectively and aesthetically screens them from public view. (e) All air - conditioning or other equipment located on the roof of a building shall be screened from public view in a manner approved by the Architectural Review Board. (f) All roofs shall be constructed of the same type material or compatible materials in conformance with the Architectural Design Standards set forth in Exhibit C. 2.06 Signs All signs shall be for the purpose of identifi- cation and direction only and shall contain no advertising. 10 8 -180 One monument sign containing the manufacturer's logo and the dealer name and makes of new automobiles sold by the dealer is permitted within a landscaped planter for each Lot or approved subdivision thereof. The maximum size of the sign shall not exceed 60 square feet on each face of the sign and the maximum height shall not exceed 10 feet from the sidewalk elevation. Said sign cannot be located in the triangular area measured by a 10 foot by 10 foot diagonal cut -off where a driveway enters onto a street. One wall sign containing the. manufacturer's logo, the dealer name and makes of cars sold, shall be permitted on the wall facing the freeway and on the wall facing the street unless the building has walls facing more than one street, in which case the dealership may have one sign on each such wall. The sign area shall not exceed 40 percent of the signable area where located, to a maximum of 2 square feet of sign area per lineal foot of building frontage. No signage is allowed on the roof of any building. All signs shall conform to the Architectural Design Standards as set forth in Exhibit C. There shall be no revolving, flashing or moving signs permitted. There shall be no billboards or wallpainted 11 8-181 signs (except safety or directional signs) permitted. In general, only those signs necessary for identification of buildings, premises and uses including a used car, service department, and truck signs shall be permitted, and the design, location, color and size and height of all signs shall be submitted to the Architectural Review Board for approval prior to erection. 2.07 Landscaping (a) Each owner shall cause his Lot to be landscaped with shrubs, trees, and /or suitable ground cover in conformity with the overall landscaping concept plan of the Auto Mall and in accordance with a dealer- provided landscape plan submitted and approved by the City and Architectural Review Board. Not less than five percent (5B) of the total uncovered area of each Lot shall be landscaped, and landscaping shall be installed according to the landscaping plan approved by the City and Agency, which plan shall be based upon the Architectural Design standards as set forth in Exhibit C. (b) All landscaping shall be irrigated by an automatically controlled sprinkler system. 12 8-182 (c) All exterior landscaping on the Lot or in the public right -of -way shall be maintaintained by the Dealers Association in a well -kept, thriving condition, and any destroyed or diseased trees, shrubs or other vegetation shall be replaced as necessary. (d) The Owner of each Lot and the Dealers Association shall cooperate with the Agency, the City or any other public body for the purpose of maintaining all landscaping. 2..08 Required Off - Street Parkino ' Off-street parking shall be provided as follows: a. One space per 1000 square feet of area devoted to display; plus b. One space per truck or van used in connection with the business per the maximum number to be stored on the premises at any one time; plus C. Three spaces per work bay for the first three bays; plus d. Two spaces per work bay in excess of three bays; plus 13 8-183 e. One space per employee per the maximum number on the premises at any one time. In the event the dealers acquire property outside of the Auto Mall site for employee parking purposes, the parking requirement stated above shall be adjusted accordingly. In no case shall the street or plaza areas be used for employee parking. It shall be the responsibility of each dealer to enforce this provision and require, as a condition of employment, that employees park in the designated employee parking area provided by the dealer. 2.09 Display Area Lighting All display and security lighting in the Auto Mall shall be designed for uniformity of lighting poles, fixtures and intensity in the following manner: (a) Except as otherwise provided in Exhibit C hereto, all Dealer Lot luminaries shall be 1000 -watt metal halide lamps and shall be mounted at a height of 24 feet from ground level, 14 8 -184 (b) Each Owner shall install display lighting in accordance with the specifications provided for in Exhibit C attached hereto; (c) Each owner shall submit a lighting plan for review and approval by the Architectural Review Board prior to installation. 2.10 Trash and outside Storage; Mechanical Repair; and Body Repair and Painting of Automobiles (a) Trash enclosures shall be a minimum of 9' by 6' with a 6' high black wall and self - closing gate. The block wall shall be architecturally compatible with the demarcation and car storage screening walls and the gate shall be constructed of a durable type wood of or metal painted to match the buildings and /or walls, whichever is applicable. Additionally, all enclosures to be viewed from the freeway shall be constructed with coverings of a compatible color and material. (b) All repair and service must take place in an enclosed building, which may remain open during business hours. The service area shall be screened from and /or oriented away from public view (including freeway) in compliance with the "Protective Screening" section of the Design Standards. 15 8-185 2.11 Property Demarcation Walls Dealers may construct walls to separate auto dealerships. Such walls shall be constructed of block compatible with the material and color of the buildings, structures and other improvements on the lot, as approved by the Architectural Review Board. Chain link will only be permitted behind the bulk car storage screen wall and adjacent to the railroad right of way. 2.12 Owner's Property Taxes and Assessments Each Owner shall be obligated to pay any taxes assessments levied by any public taxing or assessing authority against his own Lot and personal property, provided that this obligation shall not authorize levy of any tax or assessment which is not payable by all property owners in the city unless otherwise approved by the Dealers Association. 2.13 Utility Maintenance and Repair Easements All utility companies shall be provided easements on a dealers site when required for cleaning, repairing, replacing and otherwise maintaining or causing to be maintained service in all underground utility lines, 16 8-186 including the entry into an improvement constructed upon a Lot when it is necessary to uncover any such lines: provided, however, that such utility company shall be obliged to restore the improvement to substantially its former condition at the sole expense of such utility company. 2.14 Agency Rights of Access The Agency for itself and for the city and other public agencies, at its sole risk and expense, reserves the right to enter any Lot, at all reasonable times and with as little interference as possible, for the purposes of construction, reconstruction, maintenance, and repair or service of any public improvements or public facilities located on such Lot, or portion of the Auto Mall Site. Any such entry on a Lot shall be made only after reasonable notice to the Owner thereof and the Agency shall indemnify and hold the Owner harmless from any claims or liabilities pertaining to any entry. Any damage or injury to a Lot shall be promptly repaired at the sole expense of the public agency responsible for the entry. III. DEALER ASSOCIATION AND COMMON AREA 3.01 Membership in Dealers Association Every Owner of a Lot who is a dealer shall be a member of the Dealers Association. If an assignee, lessee, 17 8-187 sublessee or other lawful occupant of said Lot or part thereof is a Dealer, said assignee, lessee, sublessee or other lawful occupant of the Lot or part thereof shall be a member of the Dealers Association and shall exercise all the rights, privileges and obligations of memberships. Except as otherwise provided herein, membership shall be appurtenant to and may not be separated from ownership of any Lot. 3.02 Conveyance of Primary Identification Sian to Dealers Association After the construction and erection of the Primary Identification Sign(s) by the Agency and after the Dealers Association has been incorporated, the Agency shall convey ownership of the Primary Identification Sign and easements for access thereto to the Dealers Association, and the Association shall accept such conveyance. 3.U3 operation and Maintenance Responsibilities of Dealers Association (a) Commencing on the date that the Auto Mall or any part thereof is open for business and continuing thereafter, the Dealers Association shall operate and maintain, or cause to be operated and maintained, the Auto Mall as herein provided, and all exterior improvements of whatever kind and for whatever purpose located thereon in good order, condition and repair. The Dealers Association shall have the right to select, from time to time, a person or persons to operate and maintain said property. Without limiting the generality of the foregoing, the Dealers Association shall observe the following standards in the operation and maintenance of the Auto Mall. (1) Maintain, clean, and repair the Primary Identification Signs as necessary to keep them in first- class condition. (2) Maintain exterior sprinkling systems and all landscaping within the common areas as necessary to keep the same in a first -class thriving condition, replace destroyed trees or other vegetation and replant trees, shrubs and ground cover upon any landscaped area. (3) Remove all papers, debris, filth and refuse from Common Areas and wash or thoroughly sweep paved portions as required. fixtures. (4) Clean and maintain all exterior lighting 19 8-189 (5) Employ personnel for the security and patrol of the Auto Mall as required. (b) Without limiting the Dealers Association's maintenance obligations specified in subsection (a), no improvement or work which in any way alters the form or appearance of the Primary Identification Signs, or any of the improvements constructed and erected in the Auto Mall from their existing state on the date that such improvements have been completed shall be made or done except as herein provided; (1) No person other than the Dealers Association or its duly authorized agents may do the improvement or work; and (2) Plans and specifications for such improve- ment or work shall be submitted to the Agency, and no such work shall be commenced prior to the written approval of the Architectural Review Board pursuant to Section 2.20. If the Architectural Review Board fails to disapprove the proposed plan within thirty (30) days after plans and specifications have been submitted to it, approval shall be considered so granted. 20 8-190 3.05 Dealers Association's Easements for Maintenance and Repair The Dealers Association shall have an easement in and to any portion of the Auto Mall Site for purposes in furtherance of and incident to its responsibilities for operation and maintenance of the Auto Mall pursuant to Section 3.04. 3.06 Insurance (a) The Dealers Association shall maintain a policy or policies of insurance covering the Primary Identification Sign(s). The amount of such insurance shall be equal to the full replacement cost of the improvements without deduction for depreciation thereof. (b) The Dealers Association shall have the power to and may obtain comprehensive public liability insurance and other liability insurance in such limits as it shall deem desirable, insuring each owner and the Dealers Association from liability in connection with its responsibilities for the operation and maintenance of the Auto Mall. (c) The above policy or policies of insurance shall be carried in the name of the Board of Directors of the Dealers Association (the "Board ") as trustee for the 21 8-191 Dealers Association and for all owners and mortgagees as their interests may appear. In case of loss, proceeds shall be payable to the Board or to a bank or trust company designated by the Board for custody and disposition. (d) Premiums for all insurance described above shall be deemed common expense, payable from the annual assessments upon each Lot. (e) No owner shall permit anything to be done or kept on any lot which wills (1) Increase the rate of such insurance without the approval of the Dealers Association; or Or (2) Result in the cancellation of such insurance; (3) Be in violation of any law. 3.07 Replacement or Repair of Primary Identification Sign(s) In the event of damage or destruction of the Primary Identification Sign(s) by causes insured against by the Dealers Association, the Dealers Association shall 22 8-192 repair or replace the same from the insurance proceeds payable to it. If damage or destruction occurs to the Primary Identification Sign and the insurance proceeds are insufficient to cover the costs of repair or replacement thereof, the Dealers Association may levy a special assessment upon all Owners as provided in Section 3.09 (e) to cover the additional costs of repair or replacement not covered by insurance proceeds. 3.06 Property Taxes and Assessments The Association shall pay all real and personal property taxes and assessments levied upon the Primary Identification Sign(s) from and after the date that the Association is the owner thereof. 3.09 Annual and Special Assessments (a) Each Owner by acceptance of a deed for any Lot, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Dealers Association: (1) An annual assessment or charge for his /her pro rata share of the Auto Mall Maintenance and Operating Costs for that part of the accounting period during which the owner owned a Lot; and 23 8-193 (2) Special assessments for capital improvements or unusual expenses as they are levied by the Dealers Association pursuant to paragraph (e) of this Section 3.09. (b) The annual assessment for each owner shall be calculated by multiplying the Auto Mall Maintenance Costs by a fraction, the numerator of which shall be the total square footage owned by the owner, and the denominator of which shall be the total square footage of all the Lots in the Auto Mall. (c) "Auto Mall Maintenance Costs" includes all moneys paid out during an accounting period for reasonable costs and expenses directly relating to; (1) The maintenance, repair, operation and management of the Auto Center as provided in Section 3.04; (2) Premiums for insurance purchased pursuant to Section 3.06; and (3) Any property taxes and assessments on the Primary Identification Sign(s) pursuant to Section 3.05. (d) The accounting period shall be a one -year period commencing on January 1 and terminating on the next 24 8-194 following December 31; provided, however, that the first accounting period shall commence on the day the Auto Mall or any part thereof is open for business and shall be adjusted according to the number of days remaining in the calendar year. (e) The Dealers Association may levy in any accounting period a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of the Primary identification Sign. The special assessment for each owner shall be calculated by multiplying the costs of such improvement or work by a fraction, the numerator of which shall be the total square footage owned by the owner, and the denominator of which shall be the total square footage of all the Lots in the Auto Mall. (f) All annual and special assessments of the Association shall be fixed by the Board of Directors of the Association, and written notice of said assessments shall be sent to every Owner subject thereto at least thirty (30) days in advance of the due date. The due date or dates of annual or special assessments shall be established by the Board of Directors of the Association, and any assessment not paid within thirty (30) days after said date shall be delinquent and shall bear interest at the rate of ten percent (10%) per annum. 25 8-195 (g) The amount of any delinquent assessment, together with interest, costs and reasonable attorney's fees shall be a charge on and a continuing lien upon the Lot against which such assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees incurred in the collection thereof, shall also be the personal obligation of the person who was the owner of such Lot at the time when the assessments were levied and shall not pass to his successors in title unless expressly assumed by them. The Association may cause to be recorded with the County Recorder of Orange County a notice of delinquent assessment which shall state the amount of any delinquent assessment, interest, costs and reasonable attorney's fees incurred in the collection thereof a description of the Lot and the name of the Owner. Such notice shall be signed by an officer of the Association. Upon payment or satisfaction of such delinquent assessment and charges, the Association shall cause to be recorded a further notice stating the satisfaction and the release or the lien thereof. The lien of the assessments provided for herein shall be prior to all other liens recorded subsequent to the recordation of such notice of deliquent assessment and shall be subordinate to any first mortgage made in good faith and for value. 26 8-196 The Association may bring an action at law against the Owner personally obligated to pay the assessments, or foreclose its lien against the Owner's property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non -use or abandonment of his Lot. The Association shall have power to purchase the Lot at foreclosure sale and to hold, lease, mortgage and convey the same. The sale or transfer of any Lot pursuant to foreclosure or any proceeding in lieu thereof of such a mortgage (except a deed in lien of foreclosure) shall extinguish the lien of assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. 3.10 Powers and Authority of the Dealers Association Acting through the Board of Directors and subject only to the limitations expressly set forth in the Articles of Incorporation of the Dealers Association, its Bylaws and this Declaration, the Dealers Association shall have all of those powers set forth in its Articles of Incorporation, together with its general powers as a nonprofit corporation, generally to do any and all things that such an association 27 8 -197 may do under California law in operating for the benefit of its members, and to do any and all lawful things which may be authorized, required or permitted to be done by the Dealers Association under and by virtue of the Declaration and to do and perform any and all acts which may be necessary or proper for or incidental to the exercise of any of the express powers of the Dealers Association or for the peace, health, comfort, safety and /or general welfare of the owners and their employees and patrons. Without in any way limiting the generality of the foregoing, the Dealers Association shall have the power and authority at any time, and from time to time, without liability to any Owner, to enter upon any Lot and the exterior of any building, fence, or wall subject to this Declaration, for the purpose of enforcing any and all of the provisions of the restrictions contained herein and for the purpose of maintaining and repairing any such area. The Dealers Association shall also have the power and authority from time to time, in its own name, on its own behalf or on behalf of any Owner or Owners who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of this Declaration and to enforce, by mandatory injunction or otherwise, all of the provisions of this Declaration. 28 • s The Dealers Association may, from time to time, and subject to the provisions of this Declaration, adopt, amend and repeal rules and regulations governing the operation and maintenance of the Auto Mall. IV. GENERAL PROVISIONS 4.01 Obligation to Refrain From Discrimination (a) There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of any Lot in the Auto Mall, nor shall any Owner, himself or any person claiming under or through him, establish or permit any such practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the property in the Auto Mall. The foregoing covenants shall run with the land. (b) An Owner shall refrain from restricting the rental, sale or lease of any Lot or any other property within the Auto Mall on the basis of race, color, creed, 29 8-199 religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (1) In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with 30 8-200 reference to the selection location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein coveyed. The foregoing covenants shall run with the land." (2) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through 31 8-201 him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased," (3) In contracts "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. 32 8-202 4.02 Enforcement (a) All of the provisions contained herein shall run with the land and shall be enforceable by proceedings at law or in equity. The Agency shall have the right to enforce the provisions hereof, without liability for failure to do so. The Agency may institute or prosecute in the name of the Owner or in its own name any suit which the Agency may consider advisable, including, but not limited to, a suit to compel and obtain a decree for specific performance of any obligation of any owner or the Dealers Association pursuant to this Declaration. Any owner or the Dealers Association may at any time prosecute any proceedings in law or in equity in the case of any violation or attempt to violate any of the covenants contained herein. Failure by the Agency, the Dealers Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. (b) Any breach of any of the foregoing covenants and restrictions shall not defeat or render invalid the lien of any Mortgage made in good faith and for value as to a Lot or any part thereof. These covenants, conditions and restrictions shall be binding upon and effective against any Owner of a Lot or portion hereof whose title thereto is acquired by foreclosure, turstee's sale or otherwise. 33 8-203 4.03 Amendment These provisions may be amended or modified by the Agency with the prior written concurrence of the Dealers Association; provided, however, that any such amendment or modification does not conflict with existing provisions of the Redevelopment Plan. Any amendment shall be written and signed by the Agency and the Dealers Association and recorded in the office of the County Recorder. If at any time the Redevelopment Plan is amended in any manner as is now or hereafter permitted by law, this Declaration may be amended accordingly. No amendment of this Declaration shall effect the rights of any mortgagees who do not join in the execution thereof, provided that the mortgage is recorded prior to recordation of such amendment. 4.04 Severability Invalidation of any one or more of the provisions of this Declaration by judgment or court order shall in no way affect any of the other provisions which shall remain in full force and effect. 4.05 Term Except as otherwise provided, the covenants, conditions and restrictions contained in this Declaration 34 8-204 shall remain in effect until July 6, 2012, and may be extended for successive periods of ten (10) years by a written instrument agreeing to such extension or extensions filed by the Dealers Association with the Agency and then recorded in the office of the County Recorder of Orange County, State of California. The covenants against discrimination shall remain in perpetuity. 4.06 Dissolution of the Agency In the event the Agency shall be abolished or its designation changed by or pursuant to law, its powers, rights and functions under this Declaration may be transferred by or pursuant to law to any other governmental officer or agency; provided, that in the event of such abolition of the Agency without specific provision of law for such transfer of powers, duties, rights and functions, then the City of Santa Ana, County of Orange, State of California, shall succeed to the same. 4.07 City Codes and Redevelopment Plan Nothing contained herein shall be construed as permitting henceforth violation of any requirement of the ordinances or other laws or rules of the City of Santa Ana, or any of the provisions of the Redevelopment Plan. (hereafter "ordinances ") it being the intent thereof to 35 8-205 impose additional restrictions over and above the requirements of any such ordinances, rules, or provisions of said Redevelopment Plan. However, in the event that there shall be any conflict between the provisions of this Declaration and exhibits incorporated herein, and any such ordinances as of the date of execution, this Declaration shall be deemed to prevail. Executed by the Santa Ana Redevelopment Agency this day of _fl ✓J)�X2 ATTEST: Secretary Attorney SANTA ANA REDEVELOPMENT AGENCY 36 By -- 41 Chairman STATE OF CALIFORNIA) Ss COUNTY OF ORANGE ) on 1 $' before me, the undersigned, a Notary ublic in and for said State personally appeared 1 Gr bfi- and 11�,}� SWAVa aov%. personally known to me (or proved to me on the basis of satisfactory evidence) to be the Chairman and Secretary, respectively, of the Community Redevelopment Agency of the City of Santa Ana, California, a public body, corporate and politic, of the State of California, and known to me to be the persons who executed the within instrument on behalf of said Agency, and acknowledged to me that they executed the same. WITNESS my hand and official seal. wignature �. OF' r" AL SEAL RiZIA.RD A A"", NOTARY PUBLIC - CALIFORNIA t \'� ORANGE GOUNT'( Comm. expires lUN 13, 1966 :5 8 -2 ®I EXHIBIT A LEGAL DESCRIPTION All that certain real property in the City of Santa Ana, County of Orange, California, described as Parcel Nos. 1 to 10 inclusive, and Parcel A of Parcel Map No. 84 -884 as shown on a map filed in Book 210, pages 45 to 47 inclusive of Parcel Maps, records of said Orange County. clu 4, IlacelaA PARCEL MATY N084 -88�T 'O" 6N1EET wows. 1:. M, IN THE CITY OF SANTA ANA xft w XM Tnw w m 11,».11,JAn COUNTY OF ORANGE, STATE OF CALIFORNIA AIwwA w N.U. ACME\ Mq A MIW w wwlwf Z W 17 AM it NMVYh 1 JYn Mw I WP, NMp MwUM M NMI M. Nla W nM 11 IA11CIb AxC 1Allgl A MfIM wmMN 16 IIJ4 P ww ••• Mw Of wJwmw a J f 9r n11(A1g4yY wN w fx IMY JM1[Y rlwylyLw n rM w Lq p, r al it W 11 ww II, fMY fl w I, LLf WN MwRf11, iFM 1 w Aso aW hW w fl fM{ f w hMN WI XM IPMxN 1 W J w MMN W Il IILM IZ Np N MN )1 w MMN WJ. YP H.M. SCOTT 6 ASSOCIATMINO. A' bll. 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ANA wwAM Laxn AIYYLynllwww IM No'soi AM NoP LLR`�.P..11 ll� r "AN, —2. nnOM�r,11LV -C tWIMY ft sM lm.MnnyanJ nn LMiWL OIT w.MYI LN MIrA nw a Nuwnul Y.NM w OYx41 1. MMYiri NIY SrYn .P YARh1YYLYM Y Is.. wsraY MIIL a.. YPIIIMNKw Y - YIIL. YmY .1.nY IP LwWYwY P Yo Lua .rrKR JYw.P w PrpMt w 1u rNYWJM nb aal , 11A, P tw .wPrvma W 1w. nu C4. P Yw r r ".u. AY rnN.. +INP ons a w11CAMAl anP P aWl 1 . N. epMP MAN ARbA1P w rw M(wLt R M W.. ....A AM. MtM AYIMI m YM LJVFW LL n L W u A. L Y }YM.R IG tlR.IY PLft, C.RY, PYI.ILN WLAL faw tl Y.w1.A LLttYMIwY f41KLP M MM S, AN'. wLw R AM[ia AAA.I LW.EIN M faY tR Yu r.YW. MiM M1lfi� w w Amll- . IAy. [mm num • to t4LNrM IY — A AMNV CIW" w nl wMm 1 w M A I.sTA WM1M Ntlin w Mosso. ANA IYIYR b MNY4 IrwIM AatNMllll CWiMY Y loss" Ass M. ivmY IY PIJ W. �ANIN• mot b, I. P. fNwp R /4V�aY EXHIBIT B AUTO MALL SITE 8-209 SeAllr 1--ow, ^UPLICATE nR mN. Y0A14ENf NDTEt SHIRE! "•"'AC°' le nRlwiu exo rencn n 0 PARCEL MAP N- 84 -884 �.f ru ii.+i« wst IN THE CITY OF SANTA ANA,COUNTY OF ORANGE, A• 1 NN':rRw �\ STATE OF CALIFORNIA M�ly...r. 1YV(r - .- .vrrA.l.,.u• H.M. SCOTT L.S.2760 �ilN /� iY�VLVIO N14Y .10]1 ��y1�y ___• laAnlr ;..Y;.]• R'�FNaI \hl.' / • alp NA E\ N• payN� pAp I *' !` M�Ni y Y.Y iI• �y' w�pb'N��y ip].m ]. ]YNgY 1eeY N. Y `� .'x'YS.MW \\ 1� iYM'll• / ri )N.00� IpIN•' N. N' .w=N.. /N%Y'IL NY! \ Y. N• ii:ii• ]/ Yp•.r• Ji:iM .N' �e:ii 1.]Y l ii' ,.N' isN rR yM av /y... �'.r .'\ ;\'\ ,w �+••mYr .w ..rN ii: N• .r.ry.NY.rt]N 11']]• Mwrmw�v.1 1i. N'p'N. N.N• J'f.N. I.IY / NM��Y�. �r11r� •M \ �xwyy xN. 1]. N.e]' /1' 1]. /1' It.N• p.le' YN y Mre)'q • w N L 11. IJ'N'1]• 11. p•1)•IY 1 /.IY N.IY 1].I]' l b ./.. \ Jl. !1.11']1• !1, lil'•Yv ��� e1.N' Ii.q� N.] /' 1 . ]' -�M'x \ )1. 11•]e'N• 1�j.laj• 10.4' • • WW ��Y� vw N. N•N'N• 1 ^�'Y � T. iYH'iY 11.n' I.tr' I J t' IAI' y�N i4rM �• >I. ]1.01•!1• S7 •'4'\ N. 1YV V1• ]LPI' l].N' N• ]: N' I1.1Y /. 1' or J2, \ 11. •'. S nr; pnp[-••y °Nwwvi°''in ie rva li% ]]. N' )].w; in s, Nee' TZ ]Li• ]Idi• Rp• S 1}•YY i= � � \K 11'H'M IIW r4nw w.I Ii • : • / MRN.IH 1'x� IM ' \ R1 N•V/ w/x /I \ TK M.o R�IMRrwf/ rxrs �\ w M [Yt V .MAp MI ft \ \ a�D, .°.S'r R IN.(11 /R nFw.M f. 014 V : nR mN. Y0A14ENf NDTEt y R 4n1'Y/r rA r.'vw� •.w w•"' T n` « �..w -j.. 1 � .bi �.f ru A• M�ly...r. 1YV(r ��y1�y ___• laAnlr ;..Y;.]• R'�FNaI EXHIBIT B AUTO MALL SITE 210 MAIN N.6 - NNr ri• wM.K. +.+ 8 -210 rcelc' / "•KK]' ^UPLICATE Anne ACES! PARCEL MAP N° 84-884 fE I.ANCELN AND PARCEL A IN THE CITY OF BANTA ANA {COUNTY OF ORANGE, STATE OF CALIFORNIA H.N. SCOTT L.3.E760 1 } SURVEVER IKV 08p rtNic zi —vrim, I R.S. a JJe FAA % 4VIAl" d 4u� X17 J dr4�r� N AAevi N. a c. ]Je NE. 218 17 SHEET a OF 0 ! S :.:.7:n..n6" � rt , �} +T Iyrelt "e •^'^�'�• NM NI)IFMN ` l i I .w. I" 1 EEfvs NEA A(.. •L oaJA elNPP IYK1e fHNfr ]. nmw• ]. 11.11' ]. a.N• W.N• aaf' ]1111• w11' INE a•11'ii• 1. 11•eeN• nan ]faP. 11..1• 1.n' f.�; i; ii rw' 11,11' . r3ii• f. m•u'N' n.N• w .r .u. N' 6 O'p'N• 11. 11']1'01• II.fP' 1 >.fl• E.IY ' 1/101' IFII' IA1 M IRO M'NNO N •N. IYN M \ M JIM Or J,Nj{wnr lS )P.N 4W AL IIY.LIJ M Y Ors an.A..'�i+/�3� •N]w)..N• :.:.7:n..n6" � rt , �} NpR'�* `-- r•JN My 11�JYrM •^'^�'�• NM NI)IFMN ` l i I" 1 �1 A(.. •L �.IF/,f'A fNMA.•1.MM AEn&.•! .� ✓ fu,.l w{s w 'AEG ., /Q�SYI•"._Qi ✓.h M.'M. IN+W w1 J.. Mw.!MWw. w- 1111_. LNMnIR/� N' , E e�iyJlLy T Iu Nw rPH' M.M�NMiI• MOM]MFHT NOTE! -J~f•� w�aw ar�lpf 'Y N'.M w.r �1��1Eal�TAJ(� J 1'•11'1 ((`il EXHIBIT B AUTO MALL SITE 8 -211 EXHIBIT C `✓ALE 2 o{�° p SANTA ANA AUTO HALL o adatw ARCHITECTURAL DESIGN STANDARDS The following standards are to be used as guidelines for the execution of all dealerships in the above - mentioned mall, These are design standards intended primarily for architectural control, therefore, the Municipal Code and the City's "Design and Development Standards" must still be followed. The Archi- tectural Design Review Board will give preliminary, intermediate and final approval of all dealership designs based upon adherence to these standards. It is not the intent of these standards to have as a final product dealerships which are exactly the same. However, it is intended that there be uniformity in direction, restricted selection and treatment of elements and finishes, and repetition of certain common elements which will tie the entire complex into a homogeneous entity. A. DIMENSIONAL RESTRICTIONS 1. Setbacks: The glazed surface of all showrooms must be a maximum of 100 feet from the property line on the public road frontage. The minimum dimension shall not be less than 40 feet. The minimum dimension between the aforementioned property line and the edge of any service building must not be less than 85 feet. Side and rear yard minimums are not set by this document. Local codes must be followed, ARCHITECTURE I ENGINEERING I PLANNING 3452 EAST FOOTHILL BOULEVARD SUITE 1100 • PASADENA, CALIFORNIA 91107 • (213) 681 -84eg (818) 21a1 2. Heights The heights of the glazed portion of all showrooms shall be maximized. The distance from exteriors' finished grade to the top of the showroom parapet or top element shall be a minimum of sixteen feet and a maximum of thirty feet. The height of all service buildings shall not exceed twenty -four feet. Vertical circulation elements (stairs and elevators) and skylight elements are encouraged to exceed the above maximums if compatible, quality cladding is utilized in attractive shapes. Office space may exceed the height of the showroom, but may not exceed thirty feet from grade. 3. Protective Screening: Each service area and bulk car storage area for each lot shall be screened from public view along streets, the freeway, and each plaza with - in.the Auto Mall. The screening shall consist of a minimum six -foot high and maximum eight -foot high masonry wall and landscaping per landscape architect's recommendations. Interior public road facing property line setback is eighty -five feet. The service area shall be screened from and/or oriented away from public view (including freeway) in compliance with the above- mentioned guidelines. 0. ARCHITECTURAL STYLE The direction which has been selected for the Mall's architectural style is that of well detailed industrialized design. The generalized term usually connected to this direction is that of "high- tech." In order to narrow down the definition of this loose term, we have listed the following charac- teristics which may be incorporated into the dealership designs. The - 2 - 8 -213 materials listed may be used in combination with one another or as primary area use. Keep in mind the restrictions placed on each section and the overall "high- tech" motif which must be followed. Exposed wood construc- tion, the roofs and mansards, and literal traditional architectural motifs shall not be used. 1. Site Geometry: All showrooms, where possible, should be symmetrically oriented towards the central public road round- abouts adjacent to their sites. The build- ings are encouraged to be simple, sculptured geometric shapes (triangles, circles and rectangles), with the flush sleekness of streamline automo- tive design. The use of curving or rolling glass surfaces and opaque panels on the public- oriented facades is encouraged within the rigid geometric framework. The public areas and service buildings must be compatible in style and material selection. The service buildings shall be designed to incorporate, on at least a portion of the exterior building, the same materials and colors as those used for the showroom. 2. Horizontality: The expression of horizontality in each building is of prime importance for the unification of the Mall. To achieve this purpose, the use of continuous horizontal elements shall be required. a. Twelve -inch high horizontal metal reveals (one and one -half inches minimum depth) is encouraged to be used for banding and cladding terminations. - 3 - 8 -214 b. Continuous, light - emitting strip windows are encouraged to be in- corporated into the non - showroom, general office service area. Vertically mullionless windows would enhance and promote the high - tech imagery and are, therefore, recommended. c. All cladding shall not emphasize the vertical except at termination points (changes in direction or corners). 3. Exposed Sub - Elements: Well detailed exposed structural steel and H.V.A.C. elements shall be used. This includes the extensive use of painted trusses, spaceframes, metal deck ceilings, track lighting and well detailed ducting /registers. 4. Glass: Extensive use of tinted glass in showroom, office and light - requiring service building areas should be used. Compatible opaque (spandrel), insulated glass is suggested for areas requiring non - vision glazing for continuity of effect. The glass to be used shall have a bluish tint and slight reflectivity in non - direct auto viewing area. Vision glazing specifications are to be equivalent to P.P.G. 'Solarban 570 -30 Sapphire Blue' series. No mirror -glass or highly reflective glass may be used. 5. Wall Cladding - Flat Metal Panels: Smooth aluminum panels may be used in flat or curved cladding for the opaque showroom and office exterior wall cladding. This also applies to service building cladding termination (ends, facias, soffits and corners). Quality and trueness of material (e.g., no oil- canning - 4 - 8 -215 permitted) and workmanship are of the utmost importance. Panels shall be solid aluminum, and shall be impervious to water, and non - flammable. The panel edges shall be brake - formed at right angles to the frontal plane and all corners are to be welded and ground smooth. It shall provide a front access fastening system which means individual panels may be removed at any time. The thermally dynamic fastening system shall insure maximum weather integrity. The system shall also Include an internal drainage system which directs condensation to the outside of the building. The finish shall be an anodized or Kynar Tri -X metallic finish. Materials: a. Panels shall be fabricated from minimum .120 (3.04 mm) thick aluminum solid plate of 3003 -H134 or 5005 -H32 AQ alloy, in accordance with architectural documents and manufacturer's approved drawings including verified dimensions. b. Extruded aluminum support members shall be a minimum .093" (2.36 mm) thick 6063 -T52 alloys; supplied pre -cut to size, including all necessary stainless steel fasteners for concealed installation. c. The metal cladding system including required stiffeners and seal- ants shall meet the specified requirements for wind loading, air infiltration and water penetration. - 5 - 8 -216 d. The anchorage system shall be designed so that the panels are secure, yet "free floating," to accommodate expansion and contrac- tion; and so that individual panels may be installed or removed without disturbing adjacent panels. Panel specifications are to be equivalent to 'Techwall' by Conspec Systems. 6. Wall Cladding - Horizontal - Shaped Profile Metal Panels: Horizontal deep rib metal siding decking may be used for the major service buildings exterior and may be used for public oriented building exterior cladding. The siding must be of the highest quality, and seam- less (no apparent intermediate joints). If such siding is used for the service building, other building materials must be incorporated into the design of the structure in accordance with Section 8.1 of these Standards. The specifications for 'Steelite High Rib Panels' were used as a basis for the following guidelines. The primary metals shall be galvanized steel which is a quality, grade 'A' steel which meets the ASTM A446 specifications. A corrosion resistant finish is achieved by a continu- ous hot -dip commercial galvanizing process in accordance with ASTM A526 G90 (1.25 oz [275 g /m2]). This material shall be the substrate for all panels. An alternative metal is galvalume which is a steel sheet coated with all aluminum -zinc alloy applied by the continuous hot -dip method. Galvalume provides good resistance to heat and corrosion. The color coating for the panel shall be silicone polyester which is a - 6 - 8 -217 blend of premium polyester resins and silicone. 'SP' provides a high resistance to ultra - violet rays as a durable coating over G -90 (1.25 oz [275 g /m2]) galvanized steel. 'SP' shall meet the re- quirements of a long -term exterior finish with.excellent weather- ability. 'SP' finish shall provide an optimum use of silicone to- gether with a premium quality polyester resin for long life. Alter- nately, the panel shall be color coated in fluorofinish which is a premium fluorocarbon called polyvinyledine fluoride, (KYNAR 500 70 %). It is applied to G -90 (1.25 oz [275 g/m2]) galvanized steel. Exterior performance characteristics should include color integrity, film flexi- bility and resistance to chalking. Other important properties of finish shall be high resistance to ultra - violet radiation, and resistance to weathering. The panel profile that is encouraged to be used is deep profile rib 18 gauge minimum run horizontally. Maximum permissible deflection is to be 1/120. Hat shaped and "Z "- shaped subgirts should be placed at every structural support and not more than C-011 (1.22 mm) on center between supports. Trueness of material and quality of workmanship, with proper detailing of material termination, shall be of the utmost importance. 7. Plaster: Smooth plaster (stucco) may be used but is not highly recommended because of uncertainty in surface quality control. If plaster is used, - 7 - 8 -218 the highest degree of detailing, materials and workmanship will have to be observed. Here again, metal horizontal banding must be incor- porated. 8. Concrete Panels: Tilt -up /pre - formed concrete panels may be used in perimeter wall and building wall applications. The form liner profile specifications and configuration that may be used must be equal to those produced by Symons Corporation's Architec- tural Form Liners. The five options are to be equal to: a. 3/16" deep, short ripple rib 4' -10" (no reveal) b. 1/4" deep rib, 4' x 10' (reveal) c.. Extruded 1V rib, 2" O.C., 1' x up- to -30' (no reveal), run horizontally d. Sandblast 12 medium, 4' x 10' e. Sandblast #3 coarse, 4' x 10' Here again, continuous and horizontal metal reveals must be incorpor- ated to tie complex together and to be used at construction joints. 9. Concrete Block: Concrete block masonry may be used for wall construction in the dealership service areas. It is important to remember that the clean, - 8 - 8 -219 smooth, horizontal, industrialized character must be achieved. Contrasting the concrete block with deep tool- raked, horizontal joints, horizontal 'Spectra Glaze' or metal, contrasting bands or reveals and structures, and glass is highly encouraged. A very suitable alternative is the use of prefaced concrete masonry units with specifications similar to 'Spectra Glaze II', by Burns & Russell Company. These ceramic faced masonry units are low cost, attractive, avoid the need for finishing wall surfaces where required, and reduce operational /life cycle costs. This glazed block may also be used in areas subject to public view. 10. Rooftop Elements: All elements on roofs must be attractive and rythmically placed and /or attractively screened from view. These elements will be very visible because of the freeway adjacency permitted. 11. Color: Corrugated metal screening is not The colors selected for the exterior of the buildings must serve to integrate all elements of the dealership and enhance the aforementioned character goals. The use of strong, deep colors which may highlight rythmic elements is encouraged. The colors found in each of the auto - makers' logo standards is a desirable direction to be taken. Black and white colors may be used; earth tones shall not be used for the buildings, �t 1 walls and structural elements. This is especially important if block masonry units are used. Color selections should accentuate distinc- tion and elegance. 12. Off Street Parking: Parking shall be provided as follows: a. One space per 1000 square feet of area devoted to display; plus b. One space /truck or van used in connection with the business per the maximum number to be stored on the premises at any one time; plus C. Three spaces per work bay for the first three bays; plus d. Two spaces per work by in excess of three bays; plus e. One space /employee per the maximum number on the premises at any one time. 13. Landscape Architectural Style: (Designed by The Peridian Group) a. Overall Landscape Concept ( Streetscape and Offsite areas) The landscape architectural concept is designed-to complement the architectural style of the project. This "high- tech" style is en- hanced by the use of very clean, formal, and /or semi - formal land- scape theme. The paving system for the streetscape will consist of a minimum of materials selected for their clean and well detailed characteristics. The plant materials will consist of low trimmed hedges or ground cover, panels of turf, tropical or sub - tropical evergreen foliage trees, and palms as vertical accent. - 10 - 8 -221 The following landscape guidelines are intended to clarify the specific aesthetic criteria for site landscape design which exem- plifies the "high- tech" style." On -site dealer landscaping must meet all other City of Santa Ana General Landscape Design Standards in obtaining planning approvals, unless otherwise specified. Each dealership /lot shall allot 5% of the on -site area exclusive of the building footprints and street oriented landscaping for landscape planter areas. The landscaped areas shall be designed and located to provide adequate visual relief to the paved areas, especially those in public view. b. Dealership (on -site) Landscape Design Guidelines Hardscape and landscape palettes have been selected in keeping with the overall landscape concept. Their repeated use throughout the Auto Mall will provide a continuity and unification of the architectural and landscaping themes, while providing each dealer with an oppor- tunity for an individually designed site. Design elements not in- cluded in the palettes must be submitted to the Architectural Review Board for approval. The design of the portion of the lot closest to the streetscape should maintain the formality of the streetscape. Within each lot the overall design theme should be continued although an informal use of materials is permissible if the design complements the street - scape theme. Key aspects of on -site design include the use of plant material in large masses, rows of clipped and /or unclipped hedges, and a minimum of plant variety within each lot. The use of tree - 11 - 8-222 material will be carefully reviewed to provide adequate softening to the building mass and property edges. High standards of ongoing landscape maintenance will be required throughout the Mall. On -site maintenance must preserve the land- scape concept as presented to and approved by the Architectural Review Boards. The project will be periodically reviewed by the Architectural Review Board to insure the project is being maintained in a healthy and growing state. (1) Handscape palette: On -site paving materials have been selected to match or complement the streetscape materials and provide further unification for the project. Streetside display areas designed and installed by the City Redevelopment Agency shall encroach into on -site areas as dictated by the agency. (This will insure continuity of materials.) The lot owners shall be back - charged for the construction of display paving within their property boundaries as shown on the Redevelopment Agency land- scape construction documents. (a) Paving materials: Paving materials will be restricted to the following: (i) Concrete pavers, if used, must match those used in the adjacent streetside dealer display areas. (ii) Exposed aggregate concrete may be used as specified below: Aggregate to be maximum diameter of 1/2" - 12 - 8-223 with a maximum surface retardant of "medium reveal" applied. Integral color of concrete shall be approved by the Architectural Review Board. (iii) Plain concrete with a broom finish. (iv) Asphalt concrete. (b) Walls: All screen walls on site and any walls exposed to public view should have clinging vines attached as per the approved vine list. Construction of on -site screen walls shall be as per the requirements of the Architectural Standards. At minimum, all screen walls shall be provided with a 3 foot wide landscaped planter located adjacent to the wall where such is in public view. (c) Fencing: (i) Chain link: Chain link fencing shall not be visible from the front side of the auto dealers. It will only be permitted along property lines adjacent to the railroad and Newport Freeway, rights -of -way, and alongside property lines behind storage screen wails or other permitted structures. All chain link fencing on property that abuts the Santa Fe Railroad and Newport Freeway rights -of -way shall have a 4 foot wide planting area on the inside of the fence and - 13 - FOONNUIA Property line. The inclusion of a 2 foot to 4 foot wide planting area is highly encouraged along chain link fencing or other wall separations be- tween adjacent dealer properties. This planting area shall be required in the area adjacent to the common boundary between Lots #'6 and B7 and along the other side property lines of Lot V. These planting areas shall be fully planted with an approved ground - cover, vines and a minimum 15- gallon size tree at a maximum spacing of 20 feet O.C. (ii) Tubular steel: It is recommended the pickets be a minimum width of 3/4" and top and bottom rails be a minimum cross sectional dimension of 1 ". All tubular steel details must be approved by the Architectural Review Board. It is recommended that tubular steel fencing be painted to match the Auto Mall entry fencing or a flat black color only. (d) Bollards: Bollards placed on dealer property for vehicle detainment purposes shall be designed and located on the Redevelopment Agency plans by the landscape architect. However, the bollards will be purchased and installed by the auto dealers per the landscape architect's specifica- tion. The bollards will be integrated into planting areas in a manner that effectively and aesthetically screens them - 14 - from public view. The bollards shall be a maximum 18" height above finish grade and spaced as per the Redevelop- ment Agency plans. (2) Landscape Palette The following plant palette shall be used for guideline pur- poses in developing the on -site landscape plans. COMMON NAME BOTANICAL NAME Trees Queen Palm Arecastrum romanzoffianum 12' trunk height (minimum) Mexican Fan Palm Washingtonia robusta 12' trunk height (minimum) Peppermint Willow Agonis flexuosa Fern Pine Podocarpus gra.celior Ornamental Fig Ficus species Jacaranda Jacaranda mimosifolia Magnolia Magnolia species Trumpet Tree Tabebuia ipe Brisbane Box Tristania conferta Shrubs Tupidanthus Tupidanthus calyptratus Hibiscus Hibiscus rosa - sinensis Dwarf Oleander Nerium oleander 'Petite Salmon" or 'Petite Pink' - 15 - 8-226 Dwarf Pittosporum Pittosporum tobira 'Wheeler's Dwarf' Varigated Pittosporum Pittosporum tobira 'Variegata' India Hawthorn Ralphiolepis indica 'Jack Evans' Compact Natal Plum Carissa grandiflora 'Boxwood Beauty' or 'Tuttle' Lily of the Nile Privet Compact Shiny Xylosma Pink Escallonia Orange Jessamine Ternstromia Frasers Photinia Agapanthus africanus Ligustrum 'Texanum' Xylosma congestum 'Compactum' Escallonia fradesii Murraya paniculata Ternstroemia gymnanthera Photinia fraseri Viburnum Viburnum davidii Ground Covers Star Jasmine Tracheiospermum jasminoides Prostrate Natal Plum Carissa grandiflora 'Green Carpet' Hahn's Ivy Hedera helix 'Hahni' Turfgrass 'Marathon'fescue Trailing Lantana Lantana montividensis Vines Boston Ivy Ampelopsis 'Veitchi' Climbing Fig Ficus repens Blood Red Trumper Vine Distictus buccinatoria Seasonal Color As approved by Architectural'Review Board. - 16 - 8-227 14. Si na e: Each dealership shall be allowed one wall sign on each wall of a building which faces a street; however, where there are two or more buildings on a lot, only one such building shall be permitted a wall sign per street frontage. The sign area shall not exceed forty (40) percent of the signable area where located, to a maximum of two (2) square feet of sign area per lineal foot of building frontage. The signs should be located on the top showroom facia facing the main street access and on a wall facing freeway view (if permitted by code). These building signs must consist of individual neon box letters with formed plexiglas faces in deep channel metal backs. The metal backs may either be satin anodized aluminum or baked enamel steel (three Inches deep). The plexiglas letters are to be kept in frame with an extruded anodized aluminum V moulding retainer. The total height of each of these letters is to be no greater than thirty -six inches. No signage is allowed on the roof of any building. Monument signs which are permitted pursuant to the following criteria must not be greater than sixty square feet in area, and shall not ex- ceed ten feet in height, including standard base. The base of these signs is to be made of rough sand - blasted concrete with rounded ends, eighteen inches high and must have a two -inch high, one -inch deep con- trasting horizontal metal reveal all around, four inches from the top. The length of the base shall be proportional to the length of the - 17 - dealer - provided sign, and shall be twelve inches wide. All required minor free - standing circulation signage (entrance, exit, service, etc.) is to be compatible with the above - mentioned main monu- ment sign in style and finishes. Monument signs are permitted on each parcel as follows: a. Monument signs shall be located at public road entrances, but shall not be located in the triangular areas measured by a ten -foot by ten - foot diagonal cut -off where a driveway enters on to a street, or in any other area which may obstruct the vision of motorists so as to create a safety hazard. b. Such signs shall be located in a landscaped planter having an area at least twice as large as the area of one face of the sign. c. A maximum of two such signs shall be permitted per dealership, provided there is 300 feet of street frontage separating the signs. The letter style for all exterior signage is to be avant - garde, medium or bold. The only instance where a different letter style may be used is on a 'make' logo (symbol) where a pre - established letter type is involved. The main roadside monument signs at both Mall entrances shall be con- strutted of dark bronze anodized or baked matte painted aluminum, - 18- 8-229 internally tit cut -out letters with flush translucent plex. The base shall be similar to monument finishes and height. The verbage shall be the official Auto Mail name and street number. The sign shall be read- able from three directions (front, left and right), either with a three or four -sided box (if approved by the appropriate City decision - making bodies). In addition to the above - mentioned standards, all signage shall be in conformance with the City's Municipal Code and "Design and Developmment Standards." In regard to any conflicting criteria, the more restrictive shall apply. 15. Lighting: Dealership lot and street lighting standards shall be as follows: a. The type of luminaire and pole selected to be used for all ex- terior lighting to be equivalent to the specifications found in G.A.R.D.C.O. Lighting's 'Form Ten H' luminaire, with type three medium cutoff reflector, or other acceptable alternative. b. All bronze anodized aluminum luminaires shall be provided with 1000 (one thousand) watt metal halide lamps. Street lighting will be 250 (two hundred fifty) watt high pressure sodium lamps. c. The mounting height of all luminaires is to be twenty -four feet from ground level. - 19 - d. An initial average of 50 -75 foot candles shall be maintained from interior lot lighting with a maximum to minimum uniformity of three to one. Frontline lighting shall have a maximum to minimum uni- formity of one and one -half to one, and initial average of 75 -100 foot candles. e. The bronze anodized aluminum poles are to be square in cross sec- tion and shall be continuous to ground mounting level with adequate protection by means of a raised six -inch circular concrete curb with a minimum three -foot radius. f. The average spacing for interior lot poles with two luminaires per pole is to be sixty feet center to center. This is based on a typical 60 -65 foot aisle width. The spacing for all lot front- line poles with single inward facing luminaires is to be forty feet center to center. Independent city street lighting is desired in addition to spill- over dealer lot lighting. At each street light location, two lumin- aires (one for dealer lot lighting and the other for city street lighting) will be installed on one pole. These luminaires will be the same and placed on separate circuits. The mounting height shall also be the same (twenty -four feet) with spacing in multiples of eighty feet. Placement of these street lighting poles should be staggered on either side of the street, for street lighting efficiency. - 20- 9 x g W N 10 xvw " Ira cc w W U J TI a1. e� i� e. . e e° .•4 W cc V a W N J x 0 O L 28-9&-9 '0'1 04'8 mvw oinv VNd d1NVS - / re, a, I Al I I� 41 to I' I.' pl I,•I I' I I '�I i0' al rav .. 'NT 1 y41 - 21 - 8-232 W C) Q m Z Ct? z W Z L cc 0 Cl) EXHIBIT G FORM OF GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Pillsbury Winthrop Shaw Pittman LLP 725 South Figueroa Street, Suite 2800 Los Angeles, California 90017 -5406 Attention: William S. Waller, Esq. GRANT DEED Assessor's Parcel Number: 402 - 101 -44 AND 402 - 101 -45 In accordance with Section 6103 of the California Government Code, which exempts a public officer or body, acting in his official capacity on behalf of a city, from paying or depositing any fee for the filing of any document or paper, or for the perforniance of any official service, Grantor has declared the amount of the transfer tax to be zero. FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the undersigned, Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Grantor ") (who erroneously received title as Vinci Investments Co., Inc., dba Honda Santa Ana), hereby grants to the Community Redevelopment Agency of the City of Santa Ana, a body corporate and politic organized and existing under the Community Redevelopment Law of the State of California ( "Grantee "), all buildings, structures and other improvements located on that certain real property in the City of Santa Ana, County of Orange, State of California described in Exhibit A attached hereto and incorporated herein (the "Property "). Dated: December , 2005 "GRANTOR" VINCI INVESTMENT CO., INC., a California corporation By: Name: Title: EXHIBIT G -1 6000904350 8-233 EXHIBIT "A" TO GRANT DEED EXHIBIT G -2 600090435v6 8-234 NOTARIES STATE OF CALIFORNIA ) ss. COUNTY OF ) On 20_, before me, a Notary Public in and for the State of California, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he or she executed the same in his or her authorized capacity and that, by his or her signature on the instrument, the person or the entity upon behalf of which he or she acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said (Notarial Seal) EXHIBIT G -3 600090435v6 8 -235 THIS PAGE LEFT INTENTIONALLY BLANK 8-236 EXHIBIT H FORM OF LEASE ASSIGNMENT ASSIGNMENT AND ASSUMPTION OF LEASE THIS ASSIGNMENT AND ASSUMPTION OF LEASE ( "Assignment ") is made this day of December, 2005, by and between Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Assignor "), and the Community Redevelopment Agency of the City of Santa Ana, a body corporate and politic organized and existing under the Community Redevelopment Law of the State of California ( "Assignee "), with reference to the following facts: A. Erickson Properties Corporation, a California corporation ( "Erickson "), as Lessor, and Mohammed Hussain Joher aka Mohammed Hussain Joher, Mohammed Zouhair Joher and Hassan Joher (collectively, "Johers "), as Lessee, entered into that certain Standard/ Industrial /Commercial Single -Tenant Lease -Net dated December 28, 1992 (the "Lease ") covering the property commonly known as 2101 E. Edinger Avenue, Santa Ana, CA 92705 (the "Leased Premises "), as more particularly described on Exhibit "A" attached hereto; B. The Johers' interest under the Lease was assigned to Saber Joher on March 27, 2002; C. Mohammed Hussain Joher, Saher Joher, 2101 East Edinger, Inc., debtor and debtor -in- possession in Case No. SA 05- 14249 -RA and James J. Joseph, Chapter 11 Trustee of the Bankruptcy Estate of Mohammed Hussain Joher and Saber Joher, Case No. SA 0511201 -RA (collectively, the " Joher Parties ") assigned all of their right, title and interest in the Lease to Assignor (who erroneously assumed the Lease under the name Vinci Investments Co., Inc., dba Honda Santa Ana) as of October 11, 2005, evidenced by that certain Assignment of Lease dated as of October 11, 2005 and recorded on October 25, 2005 as Document No. 200500855972 in the Official Records of Orange County, California. D. Erickson and Assignor executed that certain Memorandum of Lease dated effective as of October 10, 2005 and recorded on October 25, 2005 as Document No. 200500855971 in the Official Records of Orange County, California to provide constructive notice of Assignor's rights under the Lease. E. Pursuant to the terms of that certain Acquisition Agreement, Mutual Release and Joint Escrow Instructions entered into by Assignor and Assignee (the "Acquisition Agreement "), Assignor now desires to assign and transfer to Assignee all of Assignor's right, title and interest as Lessee under the Lease, subject to the rentals, terms, covenants, obligations, easements and restrictions set forth therein. EXHIBIT H -1 6000904350 8-237 NOW THEREFORE, in consideration of the mutual covenants and conditions hereinbelow set forth, it is agreed: 1. Effective as of the Close of Escrow, as that phrase is defined in the Acquisition Agreement, Assignor assigns and transfers to Assignee, all of Assignor's right, title and interest as Lessee, accruing after the Close of Escrow, in and to the Lease, subject to the rentals, terms, covenants, obligations, easements and restrictions set forth in the Lease. 2. Assignee hereby accepts the assignment of the Lease as of the Close of Escrow, shall be entitled to all rights and benefits accruing to the Lessee thereunder and hereby assumes all obligations thereunder and agrees to be bound by the terms of the Lease, from and after the Close of Escrow. 3. The provisions of this Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns. 4. This Assignment may be executed in counterparts which taken together shall constitute one and the same instrument. EXHIBIT H -2 600090435v6 8-238 IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and Assumption of Lease as of the date set forth above. Dated: December—, 2005 Dated: December—, 2005 ATTEST: Dated: December , 2005 APPROVED AS TO FORM: Dated: December , 2005 600090435v6 "ASSIGNOR ": VINCI INVESTMENT CO., INC., a California corporation [EXHIBIT ONLY] By: Name: Title: "ASSIGNEE ": COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA [EXHIBIT ONLY] By: Name: Patricia C. Whitaker Title: Executive Director [EXHIBIT ONLY] PATRICIA E. HEALY Secretary of the Agency [EXHIBIT ONLY] JOSEPH W.FLETCHER Agency Counsel EXHIBIT H -3 8-239 600090435v6 EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASE LEGAL DESCRIPTION EXHIBIT H -4 EXHIBIT I FORM OF MEMORANDUM OF ASSIGNMENT AND ASSUMPTION OF LEASE Recording Requested By And When Recorded, Mail To: PILLSBURY WINTHROP SHAW PITTMAN LLP 725 South Figueroa Street, Suite 2800 Los Angeles, California 90017 -5406 Attention: William S. Waller, Esq. Space Above This Line For Recorder's Use MEMORANDUM OF ASSIGNMENT OF LEASE THIS MEMORANDUM OF ASSIGNMENT OF LEASE ( "Memorandum ") is made as of 2005 between Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Assignor "), and the Community Redevelopment Agency of the City of Santa Ana, a body corporate and politic organized and existing under the Community Redevelopment Law of the State of California ( "Assignee "), with respect to the following facts: A. Erickson Properties Corporation, a California corporation ( "Erickson "), as Lessor, and Mohammed Hussain Joher aka Mohammed Hussain Joher, Mohammed Zouhair Joher and Hassan Joher (collectively, "Johers "), as Lessee, entered into that certain Standard/ Industrial /Commercial Single- Tenant Lease -Net dated December 28, 1992 (the "Lease ") covering the property commonly known as 2101 E. Edinger Avenue, Santa Ana, CA 92705 (the "Leased Premises "), as more particularly described on Exhibit "A" attached hereto; 2002; B. The Johers' interest under the Lease was assigned to Saber Joher on March 27, C. Mohammed Hussain Joher, Saber Joher, 2101 East Edinger, Inc., debtor and debtor -in- possession in Case No. SA 05- 14249 -RA and James J. Joseph, Chapter 11 Trustee ( "Trustee ") of the Bankruptcy Estate of Mohammed Hussain Joher and Saber Joher, Case No. SA 0511201 -RA (collectively, the " Joher Parties ") assigned all of their right, title and interest in the Lease to Assignor (who erroneously assumed the Lease under the name Vinci Investments Co., Inc., dba Honda Santa Ana) as of October 11, 2005, evidenced by Assignment of Lease dated as of October 11, 2005 and recorded on October 25, 2005 as Document No. 200500855972 in the Official Records of Orange County, California. D. Erickson and Assignor executed that certain Memorandum of Lease dated effective as of October 10, 2005 and recorded on October 25, 2005 as Document No. 200500855971 in the Official Records of Orange County, California to provide constructive notice of Assignor's rights under the Lease. EXHIBIT I -1 600090435v6 8 -241 E. Pursuant to that certain Assignment and Assumption of Lease between Assignor and Assignee dated as of even date herewith ( "Assignment "), Assignor assigned to Assignee all of Assignor's right, title and interest as Lessee in and to the Lease. F. Assignor and Assignee now desire to record this Memorandum evidencing the Assignment. NOW, THEREFORE, the parties hereto have entered into this Memorandum which constitutes a memorandum of that certain unrecorded Assignment covering the Lease affecting the Leased Premises, all the terms and conditions of which are hereby made a part hereof with the same force and effect as though fully set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the date first set forth above. "ASSIGNOR" VINCI INVESTMENT CO., INC., a California corporation [EXHIBIT ONLY] By: Name: "ASSIGNEE ": COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA [EXHIBIT ONLY] By: Name: Patricia C. Whitaker Title: Executive Director ATTEST: [EXHIBIT ONLY] PATRICIA E. HEALY Secretary of the Agency APPROVED AS TO FORM: [EXHIBIT ONLY] JOSEPH W.FLETCHER Agency Counsel EXHIBIT I -2 600090435v6 8-242 600090435v6 EXHIBIT "A" TO MEMORANDUM OF ASSIGNMENT OF LEASE LEGAL DESCRIPTION EXHIBIT I -3 8-243 STATE OF CALIFORNIA ) ss. COUNTY OF On , 20, before me, Notary Public in and for the State of California, personally appeared and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that, by their signatures on the instrument, the person(s) or the entity upon behalf of which they acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (Notarial Seal) EXHIBIT I -4 6000904350 8-244 STATE OF CALIFORNIA ) ss. COUNTY OF 1 On 20, before me, a Notary Public in and for the Stat_e of California, personally appeared and , personally lmown to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and aclmowledged to me that they executed the same in their authorized capacities and that, by their signatures on the instrument, the person(s) or the entity upon behalf of which they acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (Notarial Seal) EXHIBIT I -5 6000904350 8-245 THIS PAGE LEFT INTENTIONALLY BLANK 8-246 EXHIBIT J FORM OF ASSIGNMENT OF INTANGIBLES ASSIGNMENT OF INTANGIBLES THIS ASSIGNMENT OF INTANGIBLES is made this day of December, 2005, by and between Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Assignor "), and the Community Redevelopment Agency of the City of Santa Ana, a body corporate and politic organized and existing under the Community Redevelopment Law of the State of California ( "Assignee "), with reference to the following facts: A. Assignor is selling to Assignee certain assets associated with the business known as the Mr. J's Night Club and Cabaret (the "Vinci Property "), as more particularly described in the Acquisition Agreement, Mutual Release and Joint Escrow Instructions dated as of December 22, 2005 by and between Assignor and Assignee (the "Acquisition Agreement "). B. Assignor has used or acquired (or may have acquired) certain intangible rights in connection with the Vinci Property, including, but not limited to, any trade name used in connection with the Vinci Property (including "Mr. J's "), all goodwill of the Mr. J's Business, any actual or potential claims for relocation benefits associated with the Vinci Property pursuant to California Relocation Assistance Law (Government Code Section 7260, et seq.), various easements, licenses, permits, air rights, certificates of occupancy, rights of way, sewer agreements, water line agreements, utility agreements, water rights and oil, gas and mineral rights (collectively, the "Intangibles "). C. Assignor hereby desires to assign to Assignee all of its right, title and interest in and to the Intangibles. NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinbelow set forth, the parties hereto agree as follows: 1. Effective as of the Close of Escrow, as that phrase is defined in the Acquisition Agreement, Assignor hereby assigns and transfers to Assignee all of Assignor's right, title and interest in and to the Intangibles. 2. Assignee hereby accepts the assignment of the Intangibles and the Warranties as of the Close of Escrow and shall be entitled to all rights and benefits accruing to the Assignor thereunder and hereby assumes all obligations thereunder from and after the Close of Escrow. 4. The provisions of this instrument shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns. 5. This Assignment may be executed in counterparts which taken together shall constitute one and the same instrument. 6. Assignor hereby covenants that it will, at any time and from time to time, execute any documents or take such additional actions as Assignee or its successors or assigns shall EXHIBIT J -1 600090435v6 8 -241 reasonably require in order to more completely or perfectly carry out the transfers intended to be accomplished by this Assignment. IN WITNESS WHEREOF, the parties hereto have entered into this Assignment of Intangibles and Warranties as of the date first set forth above. "ASSIGNOR" VINCI INVESTMENT CO., INC., a California corporation [EXHIBIT ONLY] By: _ Name Title: "ASSIGNEE" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA [EXHIBIT ONLY] By: Name: Patricia C. Whitaker Title: Executive Director ATTEST: [EXHIBIT ONLY] PATRICIA E. HEALY Secretary of the Agency APPROVED AS TO FORM: [EXHIBIT ONLY] JOSEPH W.FLETCHER Agency Counsel EXHIBIT J -2 6000904350 • � r EXHIBIT K FORM OF NON - FOREIGN AFFIDAVIT CERTIFICATION BY ENTITY TRANSFEROR THAT IS NOT A FOREIGN CORPORATION. PARTNERSHIP. TRUST OR ESTATE Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign corporation, partnership, trust or estate. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Vinci Investment Co., Inc., a California corporation, doing business as Santa Ana Honda ( "Transferor "), the undersigned hereby certifies the following, on behalf of Transferor: a. Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); b. The U.S. employer identification number of Transferor is ; and C. Transferor's office address is: Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalty of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief, it is true, correct and complete. Dated: December , 2005. "TRANSFEROR ": VINCI INVESTMENT CO., INC., a California corporation By: Name: Title: EXHIBIT K -1 600090435v6 L9 I ! EXHIBIT "L" FORM OF WITHHOLDING EXEMPTION CERTIFICATE YEAR CALIFORNIA FORM 2005 Real Estate Withholding Certificate 593 -C Part I — Seller's Information Return this form to Your escrow Comnanv. Name (including spouse, if jointly owned —see instructions —type or print) SSN, FEIN or CA Corporation no. Address (number and sheet) I Private Mailbox no. Souse's SSN (if jointly owned YES NO 1. Does the property quality as the seller's (or decedents, If being sold by the decedent's' estate), principal residence within the meaning of Internal City State ZIP Code Note: If you do not furnish your tax ID number this certificate is void. Property address (if no street address, provide parcel number and county) Ownership percentage Read the following and check the appropriate box. (See line -by -line notes in the instructions.) Part II — Certifications which fully exempt the sale from withholding: YES NO 1. Does the property quality as the seller's (or decedents, If being sold by the decedent's' estate), principal residence within the meaning of Internal ❑ ❑ Revenue Code IRC Section 121. ....... ................ ............... ... 2. Did the seller (or decedent, If being sold by the decedent's estate) last use the property as the sellers (decedent's) principal residence within the meaning of IRC Section 121 without regard to the two -year time period? ................................................................................................. ...I........................... ❑ ❑ 3. WIII the seller have a loss or zero gain for California income tax purposes on this sale? (To check "YES," you must complete Form 593 -L, Real Estate Withholding - Computation of Estimated Gain orLoss, and have a loss or zero gain on line 16.) ................................................... ............................... El 1:1 . sgepfypertn being converted and does the seller Intend to acquire property that is similar o r related In service or use y being to qualify for nation of gin for California nonrecognition of rCunrnvncometaxpurposesunderIRCSection1033? .......................................................... ............................... ❑ ❑ 5. Will the transfer qualify for nonrecognition treatment under IRC Section 351 (transfer to a corporation controlled by the transferor) or IRC Section 721 contribution to a partnership in exchange for a partnership Interest)? ...................................................................................................... ............................... ❑ ❑ 6. Is the seller a corporation (or an LLC classified as a corporation for federal and California income tax purposes) that is either qualified through the Secretary of State or has a permanent place of Business In California? ................................................................................... ............................... 11 El 7. Is the seller a partnershlp (or an LLC that Is not a disregarded single member LLC and is classified as a partnership for federal and California income tax purposes) with recorded title to the property in the name of the partnership or LLC? (If yes, the partnership or LLC must withhold on nonresident partnersor members as required.) ............................................................................................................................................................. ..................I............ ❑ ❑ 8. Is the seller a tax - exempt entity under either California or federal law? ..................................................................................................... ............................... ❑ ❑ 9. Is the seller an Insurance company, Individual retirement account, qualified pension /profit sharing plan, or charitable remainder trust? .............................. ❑ ❑ Part IH — Certifications that may be partially or fully exempt the sale from withholding: Escrow Officer: See instructions for amounts to withhold. 10. Will the transfer qualify as a simultaneous like -kind exchange within the meaning of IRC Section 1031? ................................................. ............................... ❑ ❑ 11. Will the transfer qualify as a deferred like -kind exchange within the meaning of IRC Section 1031? ........................................................ ............................... ❑ ❑ 12. Will the transfer of this property bean Installment sale that you will report as such for California tax purposes and has the buyer agreed to withhold ❑ ❑ on each principal payment instead ofwithhoiding the full amount at the time of transfer? ................................................. .-................................................... Part IV —Seller's Signature Under penalties of perjury, I hereby certify that the information provided above is, to the best of my knowledge, into and correct, If conditions change, I will promptly inlnrm the withholding agent. I understand that completing this form does not exempt me from filing a California income or franchise tax return m report this sale. Seller's Name and Title Seller's Signature Date Spouse's Name Seller's Signature Date Seller: If you checked "YES" to any question In Part II, you are exempt from real estate withholding. If you checked "YES" to any question in Part III, you may qualify for a partial or complete withholding exemption. If you checked "NO" to all of the questions in Part II and Part III, the withholding will be 3113 percent of the total sales price. If you are withheld upon, the withholding agent should give you two copies of Form 593 -8, Real Estate Withholding Tax Statement. Attach one copy to the lower front of your California income tax return and keep the other copy for your records. EXHIBIT L -1 600090435v6 8-250 EXHIBIT M ESTOPPEL CERTIFICATE AND LANDLORD CONSENT This Estoppel Certificate and Landlord Consent ( "Consent and Certificate ") dated effective as of December 23, 2005, is executed by Harlan C. Erickson on behalf of Erickson Properties Corporation, a California corporation ( "Landlord "), in favor of Vinci Investment Co., Inc., a California corporation, dba Honda Santa Ana ( "Vinci ") and the Community Redevelopment Agency of the City of Santa Ana (the "Agency "). Recitals A. Mohammed Hussain Johar aka Mohammed Hussain Joher, Mohammad Zouhair Joher, and Hasssan Joher, as Lessee, and Landlord, as Lessor, entered into that certain Standard Industrial /Commercial Single- Tenant Lease -Net dated December 28, 1992 ( "Lease ") covering the property cominonly known as 2101 E. Edinger Avenue, Santa Ana, CA 92705 ( "Leased Premises "), a copy of which is attached to this Consent and Certificate and incorporated by reference as Exhibit "A." B. On or about July 1, 1997, Mohammed Hussain Joher, Mohammed Zouhair Joher and Hassan Joher, as assignor, and 2101 E. Edinger Corporation, as assignee and Landlord prepared and circulated for execution that certain First Amendment to Lease and Assignment of Lease ( "July 1997 First Amendment "), whereby the Lease was to be amended to correct the legal description and assigned by assignor to assignee. The July 1997 First Amendment was never executed. C. On or about March 27, 2002, Mohammed Hussain Joher, Mohammed Zouhair Joher and Hassan Joher, assigned to Saber Joher ( "Saher Joher ") all of their right, title and interest in the Lease (the "March 2002 Assignment of Lease "). D. Saber Joher, among others, and Vinci entered into a Purchase, Sale and Assigmnent Agreement and Joint Escrow Instructions dated December 2003 (which was entered into in January of 2004) ( "Joher/Vinci Purchase Agreement "), pursuant to which Saber Joher agreed to assign to Vinci all of Saber Joher's interest under the Lease. E. On or about November 16, 2004, Landlord entered into that certain Indemnity Agreement and Amendment to Lease ( "November 2004 Indemnity and Amendment ") effective as of November 16, 2004, with Mohammed Hussain Joher, Saber Joher and 2101 E. Edinger, Inc. (collectively "Johers "). F. On or about January 3, 2005, Landlord entered into that certain Indemnity Agreement and Amendment to Lease dated January 3, 2005 ( "January 2005 Indemnity and Amendment "), with Vinci. G. On or about January 6, 2005, Landlord entered into that certain Owner's Consent to Assignment and Change of Use dated January 6, 2005 and recorded on October 25, 2005 as Instrument No. 2005000855973 (the "January 2005 Landlord Consent "). EXHIBIT M -1 600090435v6 8 -251 H. On or about October 11, 2005, Vinci, the Johers, and James J. Joseph, in his capacity as the Chapter 11 Trustee of the bankruptcy estate of Mohammed Hussain Joher and Saber Joher, et al., entered into that certain Assignment of Lease dated October 11, 2005 and recorded on October 25, 2005 as Instrument No. 2005000855972 (the "October 2005 Assignment of Lease "), whereby all of Saber Joher's interest under the Lease was assigned to Vinci. I. Vinci now seeks to assign to Agency (hereinafter, "Agency Assignment ") Vinci's interest under the Lease and Vinci has requested Landlord's written consent to the Agency Assignment. It is also contemplated that the Lease shall be re- assigned by the Agency to Vinci or any affiliate of Vinci in approximately two (2) years (the "Re- Assignment ") and Vinci has requested Landlord's written consent to such Re- Assigmnent. J. Throughout the time period covered by the Agency Assignment, Vinci agrees to fully guarantee, for Landlord's benefit, the Agency's lease payments, and agrees to immediately cure any payment or performance default by the Agency within forty -eight (48) hours of written notice from Landlord. K. In connection with the Agency Assignment and the Re- Assignment, the Agency has requested that Landlord execute this Consent and Certificate. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, LANDLORD CERTIFIES, WARRANTS, REPRESENTS AND COVENANTS AS FOLLOWS: Section 1. Tenant To the best of Landlord's knowledge, Vinci is the current and only tenant of the Leased Premises. Section 2. Leased Premises The Leased Premises consist of the property commonly known as 2101 E. Edinger Avenue, Santa Ana, CA 92705, Assessor's Parcel Numbers 402- 101 -32 and 402 - 101 -42, as outlined on attached Exhibit "B," which is incorporated herein by reference. Section 3. Complete Agreement The Lease, as attached to this Consent and Certificate as Exhibit "A," as modified by the January 2005 Landlord Consent, constitutes the complete agreement between Landlord and Vinci for the Leased Premises, and no other amendments, modifications or supplements to the Lease, either written or oral, remain effective as an amendment to the Lease. The July 1997 First Amendment was never executed and is not in force or effect. Furthermore, the November 2004 Indemnity and Agreement and the January 2005 Indemnity and Agreement are not considered by Landlord to be amendments to the Lease which would be binding on the Agency or any future lessee under the Lease. As of the date of this Consent and Certificate, the Lease is in full force and effect, has not been terminated, and is enforceable in accordance with its terms. EXHIBIT M -2 600090435v6 8-252 Section 4. Lease Term The term of the Lease commenced on January 1, 1993, and ends on December 31, 2027. The Lease is subject to an option to extend the term of the Lease for four (4) additional sixty (60) month periods, as set forth in the Option to Extend Addendum to Standard Lease which is a part of the Lease attached as Exhibit "A," which options may be exercised by Vinci, the Agency or any future lessees under the Lease. Section 5. Rent The monthly rent currently payable under the Lease is fifteen thousand, five hundred and three dollars ($15,503), subject to adjustment on August 1, 2010, and every five (5) years thereafter until the expiration of the term, based upon the change in Cost of Living, as set forth in the Rent Adjustment(s) Addendum to Standard Lease which is a part of the Lease attached as Exhibit "A." Section 6. Security Deposit and Prepaid Rent Landlord holds no security deposit or prepaid rent from Vinci. Section 7. No Defaults As of the date of this Consent and Certificate, there exist no defaults under the Lease which will be asserted against Vinci, the Agency and any future lessees, and no event which with the passage of time or the giving of notice or both would constitute such a default under the Lease. Vinci has not presently breached the January 2005 Indemnity and Amendment in any manner and any breach will not be asserted against the Agency or anyone else, including any future lessee under the Lease. The March 2002 Assignment of Lease was a default under the Lease but Landlord will deem the default cured and will not be asserted against Vinci, the Agency or any future lessee under the Lease. There may also be a default of the Johers under the November 2004 Indemnity and Amendment, but the Landlord will deem the default cured as against Vinci, the Agency and any future lessee under the Lease only. Furthermore, the default of Johers by virtue of the bankruptcy of Johers is a default under the Lease, but Landlord shall deem the default cured and it will not be asserted against Vinci, the Agency or any future lessee under the Lease. Section 8. Notification by Landlord From the date of this Consent and Certificate and continuing until otherwise directed in writing, Landlord agrees to notify the Agency immediately at the following addresses, on the occurrence of any default under the Lease or on the occurrence of any event which with the passage of time or the giving of notice or both would constitute a default under the Lease: To the Agency: City of Santa Ana Community Redevelopment Agency 20 Civic Center Plaza M -29 P.O. Box 1988 EXHIBIT M -3 600090435v6 8-253 Santa Ana, CA 92702 Attn: Patricia Whitaker With a Copy to: City of Santa Ana Office of the City Attorney 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, CA 92702 Attn: Secretary of the Council Section 9. Consent to Assignment Landlord hereby consents to the assignment of the Lease by Vinci to the Agency and any subsequent assignment of the Lease by the Agency to Vinci. Section 10. Further Assurances Landlord hereby agrees to execute any and all other documents requested by the Agency or any future Lessee to effectuate the terms of this Consent and Certificate. Section 11. Reliance Upon Consent and Certificate Landlord enters into this Consent and Certificate with the knowledge that it will be relied on by the Agency in assuming Vinci's rights and obligations under the Lease. Landlord has executed this Consent and Certificate as of the date first written above. ERICKSON PROPERTIES CORPORATION, a California corporation in Harlan C. Erickson, President EXHIBIT M -4 600090435v6 8 -254 EXHIBIT "A" ( Standard /Industrial /Commercial Single- Tenant Lease -Net dated December 28, 1992) EXHIBIT M -5 600090435v6 8-255 600090435v6 EXHIBIT `B" (Legal Description of Leased Premises) EXHIBIT M -6 • S� Resolution CRA 2006 -001 adopted 1/3/06 Reconsidered 1/17106 and rescinded Superseded by CRA 2006 -003 (JWF 1 /10/05) RESOLUTION NO. CRA 2006 -001 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA APPROVING AN ACQUISITION AGREEMENT, MUTUAL RELEASE AND JOINT ESCROW INSTRUCTIONS WITH VINCI INVESTMENT CO., INC., A CALIFORNIA CORPORATION, DOING BUSINESS AS HONDA SANTA ANA. BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Board of the Community Redevelopment Agency of the City of Santa Ana hereby finds, determines and declares as follows: A. In December 2003, Vinci Investment Co., Inc., Inc. dba Honda Santa Ana, ( "Vinci ") entered into an Agreement of Purchase with various members of the Joher family (the "Vinci /Joher Agreement ") for the purchase of the business and related assets at 2101 East Edinger Avenue known as the Mr. J's Night Club and Cabaret (the "Joher Assets "). B. On March 15, 2004, the Agency approved an Agreement for Acquisition of Leasehold and other interests related to the Joher Assets under which the Agency would acquire most of the Joher Assets immediately after close of the Vinci /Joher Agreement. C. The Agency's Executive Director and Vinci previously signed term sheet dated January 21, 2004 (the 'Term Sheet ") outlining the terms and conditions of a potential Disposition and Development Agreement ( "DDA ") to be negotiated between the Agency and Vinci following acquisition of the Joher Assets. The term sheet contemplated, among other things, acquisition of the fee interest in the property underlying the Joher Assets (the "Erickson Property. ") D. The Joher Sellers breached the Vinci /Joher Agreement. Vinci initiated and successfully prosecuted litigation against the Joher Sellers to compel performance of the Joher Sellers' contractual obligations to Vinci under the Vinci /Joher Agreement (the "Joher Litigation "). E. Due to the delays and expenses created by the Joher Litigation, the Agency terminated the AgencyNinci Agreement on August 19, 2005. Resolution No. CRA 2006 -001 Page 1 of 3 F. Vinci disagrees that the Agency properly terminated the Agency/Vinci Agreement. Additionally, the Agency and Vinci disagree as to the binding effect of the Term Sheet, insofar as the Agency contends that the Term Sheet is merely a non- binding letter of intent. G. Vinci has now settled the Joher Litigation and acquired the Joher Assets. H. The Agency and Vinci desire to resolve their differences and in doing so carry out the intent of the Agency/Vinci Purchase Agreement and the Term Sheet. Section 2. That certain Acquisition Agreement, Mutual Release And Joint Escrow Instructions, including all attachment and related documents, schedules and attachments, submitted to the Agency Board at the time of consideration of this resolution is hereby approved with exception of the provisions found in Paragraph 4 related to payment of $1,025,000 in satisfaction of claims for Extraordinary Expenses. Consideration of such payment shall be brought back to the Agency Board at its regular meeting of January 17, 2006 after confirmation of supporting documentation of such costs. The Agency's Executive Director and General Counsel are hereby authorized to make such non - substantive changes to the documents as they may deem necessary or advisable in order to carry out the intent of the agreement and this resolution, Section 3. The Negative Declaration, Environmental Review No, 2003 -149 was previously approved. Section 4. This Resolution shall take effect immediately upon its adoption by the Agency Board, and the Secretary of the Agency shall attest to and certify the vote adopting this Resolution. ADOPTED this 3rd day of January, 2006. Resolution No. CRA 2006 -001 Page 2 of 3 AYES: Boardmembers: Bist, Bustamante.Garcia. Pulido. Solodo (5) NOES: Boardmembers: Alvarez (1) ABSTAIN: Boardmembers: Christy (1) NOT PRESENT: Boardmembers: None (0) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. CRA 2006 -001 to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on Janua 3 2006. Date: ( � � ,.4 ; C"e—/ / Recording Secretary Community Redevelopment Agency City of Santa Ana Resolution No. CRA 2006 -001 Page 3 of 3 (JWF 1/17/06) RESOLUTION NO. CRA 2006 -003 A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA APPROVING AN ACQUISITION AGREEMENT, MUTUAL RELEASE AND JOINT ESCROW INSTRUCTIONS WITH VINCI INVESTMENT CO., INC., A CALIFORNIA CORPORATION, DOING BUSINESS AS HONDA SANTA ANA. BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Board of the Community Redevelopment Agency of the City of Santa Ana hereby finds, determines and declares as follows: A. In December 2003, Vinci Investment Co., Inc., Inc. dba Honda Santa Ana, ( "Vinci ") entered into an Agreement of Purchase with various members of the Joher family (the "Vinci /Joher Agreement ") for the purchase of the business and related assets at 2101 East Edinger Avenue known as the Mr. J's Night Club and Cabaret (the "Joher Assets "). B. On March 15, 2004, the Agency approved an Agreement for Acquisition of Leasehold and other interests related to the Joher Assets under which the Agency would acquire most of the Joher Assets immediately after close of•the Vinci /Joher Agreement. C. The Agency's Executive Director and Vinci previously signed term sheet dated January 21, 2004 (the "Term Sheet ") outlining the terms and conditions of a potential Disposition and Development Agreement ( "DDA ") to be negotiated between the Agency and Vinci following acquisition of the Joher Assets. The term sheet contemplated, among other things, acquisition of the fee interest in the property underlying the Joher Assets (the "Erickson Property. ") D. The Joher Sellers breached the Vinci /Joher Agreement. Vinci initiated and successfully prosecuted litigation against the Joher Sellers to compel performance of the Joher Sellers' contractual obligations to Vinci under the Vinci /Joher Agreement (the "Joher Litigation "). E. Due to the delays and expenses created by the Joher Litigation, the Agency terminated the Agency/Vinci Agreement on August 19, 2005. F. Vinci disagrees that the Agency properly terminated the AgencyNinci Agreement. Additionally, the Agency and Vinci disagree as to the binding effect of the Term Sheet, insofar as the Agency contends that the Term Sheet is merely a non- binding letter of intent. Resolution'No. CRA 2006 -003 Page 1 of 3 G. Vinci has now settled the Joher Litigation and acquired the Joher Assets. H. The Agency and Vinci desire to resolve their differences and in doing so carry out the intent of the Agency/Vinci Purchase Agreement and the Term Sheet. Section 2. That certain Acquisition Agreement, Mutual Release And Joint Escrow Instructions, including all attachments and related documents and schedules submitted to the Agency Board at the time of consideration of this resolution is hereby approved, except reducing by $25,000 that amount set forth in Paragraph 4 of the Agreement related to payment of claims for Extraordinary Expenses. The Agency's Executive Director and General Counsel are hereby authorized to make such non - substantive changes to the documents as they may deem necessary or advisable in order to carry out the intent the of agreement and this resolution. Section 3. The Negative Declaration, Environmental Review No, 2003 -149 was previously approved. Section 4. This Resolution shall take effect immediately upon its adoption by the Agency Board, and the Secretary of the Agency shall attest to and certify the vote adopting this Resolution. ADOPTED this 17t' day of January, 2006. APPROVED AS TO FORM: Resolution No. CRA 2006 -003 Page 2 of 3 AYES: Boardmembers: Bustamante.Garcia, Pulido Solorio (4) NOES: Boardmembers: Bist. Alvarez (2) ABSTAIN: Boardmembers: Christy (1) NOT PRESENT: Boardmembers: None (0) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. 2006 -003 to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on January 17, 2006. Date: `Recording Secretary Community Redevelopment Agency City of Santa Ana Resolution No. CRA 2006 -003 Page 3 of 3