HomeMy WebLinkAboutLEGADO AT THE MET LLC (FORMERLY VINEYARD / VDC AT THE MET)Recording Requested By
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ASSIGNMENT AND ASSUMPTION OF
AMENDED DEVELOPMENT AGREEMEN
AND CONSENT OF CITY
This Assignment and Assumptioia of Development Agreement and Consent of the
City of Santa Ana ("Assignment") is entered into as of May 5, 2015 (the "Effective Date"), by
and between VDC AT THE MET, LLC, a California limited liability company (the
"Assignor"), and LEGADO AT THE MET, LLC, a California limited Iiability company (the
"Assignee").
RECITALS
A. As of the Effective Date, Assignor has conveyed to Assignee all of its right, title
and interest in and to that certain real property Iocated at 200 East First American Way, in the
City of Santa Ana, County of Orange, State of California, as more particularly described in
Exhibit "A" attached hereto and incorporated herein by this reference (the `Benefited Land").
B. From and after the Effective Date, Assignor desires to assign and transfer to
Assignee all of Assignor's right, title and interest.in, to and obligations under the Amended
Development Agreement dated April 16, 2012, which was adopted by City of Santa Ana
Ordinance No. NS -2831 (as 'defined below), related to the Benefited Land and to evidence
Assignee's assumption of Assignor's obligations and liabilities under the Amended Development
Agreement, all upon the terms and conditions set forth below. As used herein, the "Amended
Development Agreement" shall collectively mean and refer to that certain development
agreement and the amendments thereto identified in Exhibit "B" attached hereto and
incorporated herein by this reference.
C. On September 3, 2013, the Santa Ana City Council tentatively approved a Second
Amended Development Agreement with First Rock Santa Ana, LLC (referred to herein as "First
Rock"), which would only become effective upon the close of escrow on the Benefited Land to
First Rock. However, the Benefited Land was never sold to First Rock, but rather was purchased
by the Assignee.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
FIDELITY NATIONALTITLE INSURANCE
COMPANY HAS RECORDED THIS INSTRUMENT
BY REQUEST AS AN ACCOMMODATION ONLY
AND HAS NOTEXAMIINED IT FOR REGULARITY
AND SUFFICIENCY ORAS ITS EFFECT UPON
MBISCRNETHENERTYTHAT
YEDEIBDERI
Recording Requested By
Fidelity National Title
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
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ASSIGNMENT AND ASSUMPTION OF
AMENDED DEVELOPMENT AGREEMENT
AND CONSENT OF CITY
A-2015-084
This Assignment and Assumption of Development Agreement and Consent of the
City of Santa Ana ("Assignment") is entered into as of May 5, 2015 (the "Effective Date"), by
and between VDC AT THE MET, LLC, a California limited liability company (the
"Assignor"), and LEGADO AT THE MET, LLC, a California limited liability company (the
"Assignee").
RECITALS
A. As of the Effective Date, Assignor has conveyed to Assignee all of its right, title
and interest in and to that certain real property located at 200 East First American Way, in the
City of Santa Ana, County of Orange, State of California, as more particularly described in
Exhibit "A" attached hereto and incorporated herein by this reference (the "Benefited Land").
B. From and after the Effective Date, Assignor desires to assign and transfer to
Assignee all of Assignor's right, title and interest in, to and obligations under the Amended
Development Agreement dated April 16, 2012, which was adopted by City of Santa Ana
Ordinance No. NS -2831 (as defined below), related to the Benefited Land and to evidence
Assignee's assumption of Assignor's obligations and liabilities under the Amended Development
Agreement, all upon the terms and conditions set forth below. As used herein, the "Amended
Development Agreement" shall collectively mean and refer to that certain development
agreement and the amendments thereto identified in Exhibit "B" attached hereto and
incorporated herein by this reference.
C. On September 3, 2013, the Santa Ana City Council tentatively approved a Second
Amended Development Agreement with First Rock Santa Ana, LLC (referred to herein as "First
Rock"), which would only become effective upon the close of escrow on the Benefited Land to
First Rock. However, the Benefited Land was never sold to First Rock, but rather was purchased
by the Assignee.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
FIDELITY NATIONAL TITLE INSURANCE
COMPANY HAS RECORDED THIS INSTRUMENT
BY REQUESTAS AN ACCOMMODATION ONLY
AND HAS NOT EXAMINED IT FOR REGULARITY
AND SUFFICIENCY OR AS ITS EFFECT UPON
THE TITLE TO ANY REAL PROPERTY THAT
MAY BE DESCRIBED THEREIN.
I . Pursuant to Section 4.3 of the Amended Development Agreement, Assignor
hereby assigns to Assignee all of Assignor's right, title and interest in, to and obligations under
the Amended Development Agreement, related to the Benefited Land subject to the terms,
covenants, conditions and provisions thereof, without warranty of any kind, express or implied.
2. Assignee accepts the foregoing assignment and assumes and shall pay, perform
and discharge, as and when due, all of the agreements and obligations of Assignor under the
Amended. Development Agreement accruing from and after the Effective Date and agrees to
perform and be bound by any and all of the terms, covenants, conditions and obligations under
the Amended Development Agreement to be observed, kept or performed by Assignor, from and
after the Effective Date.
3. The provisions of this Assignment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
4. Accordingly, the parties desire to remove all references to the previous applicant,
Vineyard Development, and the previous developer, Ryan Ogulnick, from the Amended
Development Agreement.
5. Except as expressly modified by this Assignment, the Amended Development
Agreement shall continue in full force and effect according to its respective terms. This
Assignment shall not be construed as (i) conferring upon Assignor or Assignee any greater rights
than those contained in the Amended Development Agreement, (ii) diminishing any rights under
the Amended Development Agreement, (iii) assigning any provisions of the Amended
Development Agreement other than as set forth herein, or (iv) modifying the Amended
Development Agreement in any respect, other than as set forth herein.
6. This Assignment may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which when taken together shall constitute one and the
same instrument. The signature and acknowledgment pages of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s) and acknowledgment(s) thereon,
provided such signature and acknowledgment pages are attached to any other counterpart
identical thereto except having additional signature and acknowledgment pages executed and
acknowledged by other parties to this Assignment attached thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLAND]
2
IN WITNESS WHEREOF, the Assignor and the Assignee have duly executed this
Assignment as of the date first written above.
ASSIGNOR:
VDC AT THE MET, LLC,
a California limiipd liability company
By:
ni t,0
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ASSIGNEE:
LEGADO AT THE MET, LLC,
a California limited liability company
By:
Cz a de- e✓,
CeX W '�t v-
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CONSENT OF CITY:
The undersigned, the City Manager of the City of Santa Ana (tlie "City"), hereby confirms that
the Santa Ana City Council has approved and consented to this Assignment of the Amended
Development Agreement to the Assignee as of the Effective Date pursuant to Section 4.3 of the
Amended Development Agreement.
By
^r' v PZ
David Cavazos,
City Manager
bQ City Attomey
ACKNOWLEDGMENT
State of California
County of Los Angeles )
On October 28, 2016
before me, Gary Thomas Lubin, Notary Public
(insert name and title of the officer)
personally appeared Ryan Ogulnick
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my han nd official se GARY THOMAS UBIN
Notary Public- California
z , Loa Angeles County
Commission # 2153890
M Comm. =May Ma 20, 2020
Signatur (Seal)
ACKNOWLEDGMENT
State of California
County of Los Angeles )
On October 28, 2016
before me, Gary Thomas Lubin, Notary Public
(insert name and title of the officer)
personally appeared Edward M. Czuker
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS :my han"fficialseal. �py T OMAS LUBIN
Notary Public • California
�, los Angeles County
;, Commission # 2153890
Signature(Seal) M_�C.omMM. Es Tres Ma 20.202
i
EXHIBIT A
Legal Description of the Benefited Land
REAL PROPERTY IN TIIE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 1 AS SHOWN ON EXHIBIT `B" OF LOT LINE ADJUSTMENT NO. 98.001 IN THE
CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED
APRIL 9, 1998, AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL B:
A NON-EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS
AND ACCESS, AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 9, 1998, AS INSTRUMENT NO. 19980210011 AND IN
THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 15, 1998, AS INSTRUMENT NO. 19980222444, AND IN
THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT
AGREEMENT RECORDED NOVEMBER 11, 2004, AS INSTRUMENT NO. 2004001056213,
ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A
HEREINABOVE DESCRIBED.
PARCEL C:
AN EASEMENT FOR THE CONSRUCTION, INSTALLATION, MAINTENANCE AND
REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS, AS SET FORTH IN
THAT CERTAIN STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT
RECORDED APRIL 18, 2005, AS INSTRUMENT NO. 2005000291720 OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
Exhibit A-1
EXHIBIT B
Amended Development Agreement
Amended Development Agreement by and between the City of Santa Ana and VDC at
The Met, LLC, a California Limited Liability Company, dated April 16, 2012, and recorded with
the County of Orange, California.
Exhibit B-1
(ROH 03/05/12)
ORDINANCE NO. NS -2831
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING AN AMENDED
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City is authorized pursuant to Government Code Sections 65864
through 65869.5 to enter into development agreements with persons having legal or
equitable interests in real property for the purpose of establishing certainty for both City
and owner in the development process.
B. The City enters into this Amended Development Agreement pursuant to
the provisions of the Government Code and applicable City policies.
C. This Amended Development Agreement came before the Planning
Commission for a duly noticed public hearing on January 23, 2012. At that time, the
Planning Commission continued the matter to February 13, 2012. Staff recommended
that the Planning Commission vote to recommend approval of this Amended
Development Agreement. On February 13, 2012, the Planning Commission split by a
vote of 3:3 (Commissioner Yrarrazaval absent) on a motion to approve the project, thus
creating an impasse. Pursuant to Planning Commission Bylaws (Resolution 01-44, §
8e), the applicant desired to proceed to City Council.
D. Entering into this Amended Development Agreement would provide the
City with extraordinary and significant benefits that are of regional significance, relate to
existing deficiencies in public facilities, require the owner of The Met to contribute a
greater percentage of benefits than would otherwise be required, and represent benefits
which would not otherwise be required as part of the development process.
E. The project and the use that the owner proposes in connection with the
property have been extensively reviewed and considered by the City, and such
proposed development and use have been found to accommodate the City's
recommendations and suggestions in order to protect the public's interest to enhance
the desirability of such proposed development and use. The terms and conditions of
this Amended Development Agreement have been found to be fair, just and reasonable,
and the City has concluded that the pursuit of the Project will serve the interests of the
City.
Ordinance No. NS -2831
Page 1 of 3
F. The City Council has held a noticed public hearing on this Ordinance and
has considered all testimony presented thereto.
G. Mitigated Negative Declaration and Mitigation Monitoring Program,
Environmental Review No. 2011-46, have been approved and certified by this Council
by resolution simultaneously with the introduction of this ordinance.
H. The proposed project will not adversely affect the General Plan, as is
expressly set forth in the Request for Council Action dated March 5, 2012, together with
all supporting documents, including but not limited to, proposed resolutions, which are
incorporated herein by this reference.
Section 2. The Amended Development Agreement, a true and correct copy of
which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk
of the Council are authorized to execute it on behalf of the City with such non -substantive
changes as may be authorized by the City Manager and City Attorney. The Clerk of the
Council is hereby authorized and directed to cause this Development Agreement to be
recorded with the County Recorder's Office.
Section 3. This ordinance shall not be effective unless and until Resolution No.
2012-013 is adopted and becomes effective. If said resolution is for any reason held to be
invalid or unconstitutional by the decision of any court of competent jurisdiction, or
otherwise does not go into effect for any reason, then this ordinance shall be null and void
and have no further force and effect.
Section 4. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause
phrase or portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
ADOPTED this 16th day of April 2012.
Ordinance No. NS -2831
Page 2 of 3
APPROVED AS TO FORM:
Joseph A. Straka
Interim City, Attorney
'1
By:
Rya nHod e
Assist tjt City ttorney
YES: Councilmembers: Alvarez, Benavides, Bustamante Martinez
Sarmiento, Tinaiero, Pulido (7)
NOES: Councilmembers: None (0)
ABSTAIN:
Councilmembers:
None
(0)
NOT PRESENT:
Councilmembers:
None
(0)
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS -2831 to be the original ordinance adopted by the City
Council of the City of Santa Ana on April 16, 2012 and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: J '1_ ✓ 'tA,.a' �.).
Clerk of the Council
City of Santa Ana
Ordinance No. NS -2831
Page 3 of 3
A-209
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Cleric of the Council
City of Santa Ana
20 Civic Center Plaza M730
P.O. Box 1988
Santa Ana, California 92702
EXEMPT FROM RECORDING FEES
GOVERNMENT CODE S k103
AMENDED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
VDC AT TRE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Dated: April 1 G, 2012
AMENDED DEVELOPMENT AGREEMENT BE,
TIME CITY OF SANTA ANA AND
VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
This AMENDED DEVELOPMENT AGREEMENT ("Agreement") is entered
into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly
authorized under the Constitution and laws of the State of California (referred to herein as
"City") on the one hand, and VDC AT THE MET, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY (referred to herein as "Owner" or "Property Owner") on the other hand.
1. RE, CITALS. The Amended Agreement is entered into with reference to the
following facts:
1,1 Purpose, (1) The purpose of this Agreement is to facilitate the
development of a small portion of the real property which was the subject of a Development
Agreement entered into on January 4, 1988 and recorded as Document 88-260709 in the Office
of the Recorder of the County of Orange (the "Original Agreement'). The Original Agreement
was subsequently amended on or about June 4, 2001, by Document No. 20010429519 the Office
of the Recorder of the County of Orange. The real property which was the subject of the Original
Agreement is zoned by the City as Specific Zoning District No. 43 ("SDAT ). On April 4, 2005,
the City entered into a Development Agreement (the "2005 Agreement") with Coastal Rim
Properties, Inc. and Geneva Commons, LLC (collectively referred to herein as "Coastal Rim").
(2) A portion of the real property covered by the Original Agreement
was subsequently acquired by Coastal Rim, who applied to the City to amend SD -43 and approve
a new tentative map, and other entitlements,
(3) The City and Owner agree that the changes Owner seeks in the
2005 Agreement substantiate the need to amend the Original Agreement with the instant
Agreement, rendering the Original Agreement and the 2005 Agreement, and any amendments
thereto, null and void as applied to Owner's Property (as the word "Property" is defined in
Section 2.3 herein),
(4) As more particularly set forth in Section 2.4 of this Agreement,
Owner has proposed developing the northeast corner of MacArtlwr Boulevard and Imperial
Promenade with a 5 -story, multi -family apartment community consisting of 278 residential units,
with 2 levels of subterranean parking, and a level of podium deck parking in 2 separate buildings
(the "Project", as further defined in Section 2.41rcrein).
1.2 Code Authorization. City is authorized pursuant to Government Code
Sections 65864 through 65869.5 to enter into Development Agreements with persons having
legal or equitable interests in real property for the purpose of establishing certainty for both City
and Owner in the development process. City enters into the Agreement pursuant to the
provisions of the Govenunent Code and applicable City policies. The parties acknowledge:
(1) This Agreement is intended to assure adequate public facilities at
the time of development.
(2) This Agreement is intended to assure development in accordance
with City's General Plan, applicable Specific Plans and Specific Development District No. 43,
(3) This Agreement will permit achievement of goals and objectives as
reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all
applicable Specific Plans and Specific Development District No. 43.
(4) Owner is required by existing City regulations to provide
mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through
the regulatory process,
(5) This Agreement will allow City to realize extraordinary and
significant public infrastructure facilities and other supplemental benefits in addition to those
available through the existing regulatory process.
(6) Many of the extraordinary and significant benefits identified as
consideration to City for entering into this Agreement are of regional significance, relate to
existing deficiencies in public facilities, require Owner to contribute a greater percentage of
benefits than would otherwise be required, and represent benefits which would not otherwise be
required as part of the development process.
1.3 Owner. Owner represents and warrants that it has a legal or equitable
interest in the teal property located in City of Santa Ana, California, legally described on Exhibit
A attached liereto and incorporated herein, and graphically described on Exhibit B attached
hereto and incorporated herein, The Property is currently vacant.
1,4 Interest of Owner. Owner hereby represents that it has an equitable and
legal interest in the Property.Owner further hereby represents that it has approved this
Agreement and is authorized to enter into this Agreement.
1.5 Planning Commission - Councll llearings, Ou November 22, 2004, the
Planning COrmnlss[en of the City ("Planning Commission"), after giving notice pursuant to
Government Code Sections 65090 and 65091, held apublic hearing to consider Coastal Rim's
application for the 2005 Agreement, The Planning Commission recommended to the City
Council of City that it execute the 2005 Agreement. On April 4, 2005, the City Council of the
City of Santa Ana ("Council"), after providing notice as required by law, held a public hearing to
consider Coastal Rim's application for the 2005 Agreement, which the Council approved by
adopting Ordinance No. NS -2680 on April 18, 2005. The Owner has submitted a new and
modified site plan review package to the City amending the previously approved plan. On
January 23, 2012, file Planning Conunission of the City, after duly giving notice pursuant to
Government Cade sections 65090 and 65091, held a public hearing to consider the Owner's
application for this Agreement. At that time, the Planning Commission continued the matter to
February 13, 2012, On February 13, 2012, file Planning Colimrission split by a vote of 3:3 on a
2
motion to approve the project, thus creating an impasse. Pursuant to Planning Commission
Bylaws (Resolution 01.44, § 8e), the applicant desired to proceed to City Council, On April 16,
2012, the Council, after providing notice as required by law, duly held a public hearing to
consider the Owner's application for this Agreement.
1.6 Council Findings. The Council finds that this Agreement and its
purposes are consistent with Govermnent Code Sections 65864 through 65869.5, and with the
objectives, policies, general land uses, and program specified in the General Plan, applicable
Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the
City. Among other things, this Agreement will reduce uncertainty in planning for and securing
the orderly development of the Property, assure progressive installation of necessary
improvements, provide public services appropriate to each stage of development of the Property,
ensure attainment of the maxinrnn effective utilization of resources within the City at the least
cost to its citizens, expand the availability of high-quality, affordable housing stock to the City's
citizens, contribute to the economic stability and revitalization of the community, enhance the
City's property tax revenues, and otherwise achieve the goals and purposes for which
Government Code Sections 65864 through 65869.5 were enacted.
1.7 City Ordinance. On April 16, 2012, the Council adopted Ordinance No,
NS --2,.J3 1. approving this Amended Agreement. The ordinance becomes effective thirty (30)
days thereafter.
2. DEFINITIONS. In the Agreement, unless the contest otherwise requires;
2.1 "Final Design" means the final design documents for work of public art,
which is set forth in greater detail in Section 5.8 of this Agreement.
2,2 "Property Owner" or "Owner" means collectively VDC at the Met,
LLC, a California Limited Liability Company, and its successors or assigns who or which may
acquire Owner's equitable and legal interest in the Property, being the person, persons, of entity
having a legal or equitable interest in the Property.
2.3 "Property" is the real property described in Exhibit A and referred to in
Exhibit B.
2.4 "Project" is the development of the Property as generally set forth in
Section 1.1(4) of this Agreement, Environmental Review No. x&611-0 %, Tentative Tract Map
No,J, J -0I (County Map No ft$ Conditional Use Permit Variance No.-
-•---- , Zoning Ordinance Arinendmem No. 0-0 (amending SD -43), and Site Plan Review
No._� 011,.-61 .
2.5 "Public Art Plan" means the conceptual Plan attached hereto as Exhibit
C. The parties recognize that the Plan does not set forth certain elements of the Public Ant to be
installed in conjunction with this Project; including the location of the Public Art, and is
therefore subject to refinement prior to the time of installation, by agreement of the Owner and
the City's Executive Director of Planning and Building.
3. BXMBITS, The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
Desi nation Description in Section
A Property Legal Description 1.3
B Property Graphical Description (Site Plan) 1.3
C Public Art Plan
2.5
D Cooperative Agreement for Oft Site Impro`rements 5.1.1
E Remaining Offsite Mitigation Measures 5,1.2
4. GENERAI, PROVISIONS,
4.1 Property Subject to the Agreement, Until releasedpursuant to the
provisions of Section 8.3 below, no property shall be released from this Agreement until Property
Owner has filly performed its obligations arising out of the Agreement.
4,2 Duration of Agreement. The term of this Agreement shall be for ten (10)
years from the date that the Council adopts its ordinance approving this Agreement ("Effective
Date"); provided, however that the Owner may request one two-year extension from the
Executive Director of the Planning and Building Agency, which request shall not be
unreasonably denied.
4,3 Prohibition Against Assignment or Transfer and Identify of Ownor.
Owner acknowledges and agrees that the qualifications and identity of the applicant (Vineyards
Development) and Developer, Ryan Ogulnick (owner of Vineyards Development) are of
particular importance and concern to City. Owner further acknowledges and agrees that City has
relied and is relying on the specific qualifications and identity of the applicant (Vineyards
Development) and Developer, Ryan Ogulnick (owner of Vineyards Development) in entering
into this Agreement and City would not have entered into this Agreement, but for the specific
qualifications, identity and representations of the applicant (Vineyards Development) slid
Developer, Ryan Ogulnick (owner of Vineyards Development). Owner represents and warrants
to City that Owner has not made and agrees that Owner will not create or permit to be made or
created any assignment, transfer or sale, except in accordance with this Section 4.3.1, either
voluntarily, involuntarily or by operation of law. Any assignment, transfer or sale made in
contravention of this Section 4.3 shall be voidable at the election of City, in City's soleand
absolute discretion. Owner acknowledges and agrees that the restrictions set forth herein are
reasonable and were offered to the City as consideration for the Agreement.
As a consequence, Owner shall not have the right to transfer or assign the
Property, and its interests in and rights and obligations under this Agreement, in whole or in part,
to any person, entity (public or private), partnership, joint venture, firm or corporation for two (2)
years from the effective date of the approval of this Agreement; except as provided in section
4.3.1 of this Agreement. Thereafter, the rights of Owner under this Agreement may not be
transferred or assigned unless the written consent of the Council is first obtained and any transfer
or assignment of the rights under this Agreement shall include in writing the assumption of the
duties, obligations, and liabilities arising from this Agreement if the City grants written consent
to transfer the rights. The rights of the Owner hereunder shall not be subject to assigmnent by
attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such
assignment or transfer shall be wholly void and of no force and effect unless such written consent
thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any
duty, obligation or liability to City without the written consent of the City.
During the term of this Agreement, any approved assignee or transferee of the
rights under this Agreement shall observe and perform all of the duties and obligations of Owner
contained in this Agreement as such duties and obligations pertain to the portion of the Property
transferred or assigned. Any and all approved successors and assignees of Owner shall have all
of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If
file Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated,
assigned, or transferred to persons for development by them in accordance with the provisions of
this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the
obligations of Owner and the transferee or assignee shall be joint and several.
4.3.1 Permitted Assignments. The prohibition against transfer of ownership of
the Property as defined in section 43 above shall not apply to, and the City hereby consents to,
the following;
a. The parties recognize that to facilitate development of the Project,
the Property will be conveyed into an entity or entities, commonlyreferred to as "single purpose
entities", as a condition to, and part of, receiving development financing. These "single purpose
entities" are called such because the only activities in which they are engaged are ownership and
development of projects, including the Project. The restriction set forth hereinabove in section
4.3 does not apply to a transfer or transfers into "single purpose entities" in which the Applicant
(Vineyards Development) or Ryan Ogulnick, have, and may exercise, ownership and control.
b. Easements or temporary permits to facilitate development of the
Property.
C. Deeds of trust or other financing documents executed for the
purpose of securing loans to Owner made to finance the development of the Property, and
transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such
(teed of trust or other, similar, financing documents and any subsequent transfer by any such
person or entity.
4.4 • Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868.
The term "Agreement" or "Development Agreement" as used herein shall include any
amendment properly approved and executed.
4,5 Enforcement. Notwithstanding Government Code Section 65865,4, this
Agreement is enforceable by any party to the Agreement in any rnarmer provided by law. The
City shall not be liable for, any action in damages or any costs or attorney's fees resulting from
any dispute, controversy, action or inaction, or any legal proceeding arising out of this
Agreement.
4.6 Hold Harmless. Property Owner agrees to and shall hold City, its
officers, agents, employees, consultants, special counsel, and representatives ("City Parties",
collectively) harmless fiom liability: (I) for damages, just compensation, restitution, judicial or
equitable relief arising out of claims for personal injury, including health, and claims for property
damage, which may arise clue to negligent acts, omissions or willful misconduct, from the direct
or indirect operations of the Property Owner or their contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates to the Project; and (2) from any
Claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of
the terms of or effects arising from, and to the extent of Property Owner's negligent acts,
omissions or willful misconduct in the performance of this Agreement. This ]told 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 teferred to in this Section
or due by reason of tite terms of, or effects, arising from this Agreement or any approval or
certification by the City relating to the Project, regardless of whether or not the City prepared,
supplied or approved this Agreement, plans or specifications, or both, for the Project. The
Property Owner further agrees to indemnify, hold harmless, and pay all costs for file defense of
the City, including fees and costs for special counsel to be selected by the City, regarding any
action by a third party challenging the validity of this Agreement or any approval or certification
by the City relating to tite Project, or asserting that damages, just compensation, restitution,.
judicial or equitable relief is due to personal or property rights by reason of the terms of, or
effects arising from Property Owner's negligent acts, omissions or willful misconduct in the
performance of this Agreement. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
4.7 Binding Effect of Agreement. To the extent not otherwise provided in
Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the
Agreement inure, to the parties' successors in interest, transferees and assigns.
4.8 Relationship of file Parties, The contractual relationship between City
and Owner arising out of the Agreement is one of independent contractor and not agency or
partnership. This Agreement does not create any third patty beneficiary rights.
4.9 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if
delivered in person or mailed by first class or certified mail, postage prepaid, or sent by
telefacsimile or other telegraphic communication in the manner provided in this Section, to the
following persons:
If to City, to:
and,
City Manager
City of Santa Ana
20 Civic Center Plaza M-71
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6954
City Attorney
City of Santa Ana
20 Civic Center Plaza M-29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647.6515
If to Owner, to;
VDC at the Met, LLC
828 North Ogden Drive
Los Angeles, CA 90046
Attention: Ryan Ogulniek
Facsimile number:
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
transmitted to the new address or facsimile number. If sent by snail, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given three (3) clays
after it has been deposited in the United States mail, duly registered or certified, with postage
prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand,
delivery, or other communication shall be effective or deemed to have been given.twenty-four
(24) hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above, For purposes of calculating these time frames, weekends,
federal, state, County, or city holidays shall be excluded,
5. DEVELOPMENT Or THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. In accordance with the terms
of Government Code section 65866, the City and the Omer agree that the rules, regulations and
official policies governing (lee permitted use(s) of the Property, with respect to and only with
respect to the permitted uses) zoning, design, setbacks, density, height, size of structures,
permitted uses, and intensity of use of the Property (collectively, the "Existing Development
Regulations'), shall be those rules, regulations, and policies applicable to the Property as of the
effective date of this Agreement.
5.1.1 Cooperntive Agreement for Off -Site Improvements. Coastal Rim and
the City, together with other parties, executed a Cooperative Agreement for Off -Site
Improvements concurrently with the Original Agreement, a true and correct copy of which is
attached hereto as Exhibit D and incorporated herein by this reference. Owner agrees to comply
in all respects with its obligations under said Agreement, and agrees and acknowledges that a
material breach of said agreement shall constitute a material breach of this Agreement. Despite
anything to the contrary, Owner is not required to construct any offsite irpprovements other than
as expressly required in this Agreement, in any environmental documentation related to this
Project, or in any condition of approval in any discretionary action related to this Project.
5.1.2 Remaining Offsite Mitigation Measures. The additional offsite
mitigation measures, beyond those set forth in the agreement referenced in section 5.1.1 of this
Agreement, which must be constructed by Owner are as set forth in Exbibit E to this Agreement.
Ali fouls or costs for offsite mitigation measures required pursuant to the approvals set forth in
section 2,4 of this Agreement shall be paid the earlier of (1) the time called for in the said
approvals, or (2) no later than recordation of the final subdivision map for the Project, or (3)
issuance of certificates of occupancy; whichever comes first.
5,2 Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Oovermnent Code Section 65866, and Pardee Construction -Co. v.
City of Camarillo (1984) 37 Ca1.3d 465, 208 Ca1,Rptr. 228, 690 P.2d 701, City retains the right
to enact police power regulations on matters not covered by section 5.1 of this Agreement,
including without limitation:
a. Regulation of the rate and amount of growth is not abrogated by the City,
ill that the parties agree and acknowledge that the City hereby retains the police power to provide
for change in regulations, ordinances, policies, and plans relating to moratoria, building permit
allocations, timing, and sequencing of development and the financing and provision of adequate
public facilities at the time of development.
b. Municipal laws and regulations which do not interfere with Owner's vested
rights to develop and use the Property in accordance with section 5.1 of this Agreement. As used
herein, "Existing Development Regulations" shall not include municipal laws and regulations that
do not conflict with Owner's vested rights to develop and use the Property in accordance with this
Agreement. Owner and its successors and assigns and all persons and entities in occupation of any
Portion of (lie Property shall comply with such non -conflicting laws and regulations ns may from
time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing,
such non -conflicting laws and regulations include the following:
(1) Taxes, assessments, fees and charges, except as otherwise
specifically provided in this Development Agreement;
(2) Building, electrical, mechanical, fire and similar codes based upon
uniform codes incorporated by reference into the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, which regulate the manner
in which business activities may be conducted or which prohibit any particular type of
business activity on a city-wide basis; and
(4) Procedural rules of general City-wide application.
C. In recognition of the need for City services, including but not limited to
police, fire and park, to meet the demand generated by new, cumulative residential development in
the City, District, Owner will not object to participation in a community facilities district,
assessment district, or outer similar finding mechanism, to provide funds for such services, should
any such a mechanism be established.
d. No vested rights as to any requirements in this section either as to existing
or future. regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifleatlmrs. The design
and construction standards and specifications for all Project construction, Including without
limitation the facilities set forth in the Public Art Plan, shall be subject to applicable design
standards and guidelines in effect at the time that any development approval shall be sought for
the Project or any unit or structure contained within the Project,
5.4 FAA Approval. Owner shall obtain and maintain, during the term of the
agreement, any and all necessary approvals from the FAA for the Project. Should such approvals
lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the
City shall have the right to terminate the agreement.
5.4.1. Avigatiou Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigatiou easement in a form approved by the City
Attorney, which shall be recorded with the Recorder of the County of Orange, The avigation
easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the Project including but not
limited to noise, sound, vibration, fumes, fuel particles, (lust, discomfort or other environmental
effects incident to aircraft operations as well as any inconvenience or annoyances caused by the
operations of the John Wayrne Airport (SNA). The avigation easement shall grant the right to
enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property
for the unobstructed use, passage or operation of all types of aircraft and the right to create ov
generate all things and consequences to the Property that may be, or may be alleged to be,
incident to or resulting from the use of said Airspace and any and all related aircraft and airport
operation. The City shall be the benefited party in the avigation easement, but said easement
shall be assignable by the City to a third party, including but not limited to John Wayne Airport
(SNA), without consent of Owner.
5,5 Future Discretionary Approvals. This Agreement shall not prevent Cite
City, when considering requests for discretionary approvals not covered by Section 5,1 of this
Agreement subsequent to the effective date of this Agreement, from applying new rules,
regulations, and policies which are applicable to the Property, including but not limited to,
changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall
this Agreententprevent the City from denying or conditionally approving any subsequent
applications for land use entitlements based on such existing or new rules, regulations, and/or
policies; provided, however, that such new rules, regulations, and official policies are of general
application to all development within the City and are not imposed solely with respect to the
subject property. In addition, this Agreement shall not prevent tile. City from exercising its police
power to protect the health, safety, and welfare of the public. This police power, exercised in
accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created
or existing between theparties.
5.6 Processing Fees. All fees and charges intended to cover City costs
associated with processing development of the Property, including but not limited to fees and
charges for applications, processing, inspections, plan review, plan processing, and/or
environmental review, which are existing or may be revised or adopted during the term of this
Agreement, shall apply to the development of the Property.
5.7 Amendments or Additions to Citywide Tee Programs, This Agreement
shall not preclude the inclusion of and changes to fee programs, taxes whether special or general,
or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective
date of this Agreement, which shall be applicable to the Project or the Property provided that
they (1) are standard fees applicable to all development in the City (although actual fee rates may
vary within the City where bona fide Citywide fee zones have been established), (2) are not
applicable primarily or only to this Project, and (3) are not imposed to either (a) mitigate, offset
or compensate for Project impacts which were analyzed in the negative declaration prepared for
the Project, or (b) duplicate any project design features conditions of approval, Agreements, or
mitigation measures contained in the Development Plan or this Agreement, Tine current
entitlement fees shall be locked in as of the date of this Agreement, and there shall be no
additional entitlement fees for the Project. However, building permit fees, including fees for now
permits required after the date of this Agreement, will not be locked in at any rate, but rattler will
be the amount at the time of pulling building permits. Any deferral of development impact fees
will only be allowed in accordance with Santa Ana Ordinance No. NS -281h adopted by the Santa
Atha City Council on February 22, 2011.
5.8 Development, Cmistructimn and Completion of Worlc of Public Art.
In consideration for the extraordinary and significant benefits set forth in this Section, the Owner
has been legally vested under Section 5.I with regard to the zoning, permitted uses, density,
height, setback, design, size of structure and intensity of use of the Property. Owner shall include
within the Project at a prime location visible to the public, a single or grouped permanent work of
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public art (the "Public Art"). The Public Art shall conform in all respects to Exhibit C of this
Agreement:
Facilities specified in Section 5.8.1 below must be designed and/or constructed
prior to the triggering event. In the event that Owner fails to meet either of the triggering events
set forth in Section 5.8.1., below, Owner shall pay the City an amount equivalent to one-half of
one percent (0.5%) of the estimated value of its Project, as conclusively specified by the
Executive Director of the City's Plamrbrg and Building Agency, to be used by the City to acquire
other public art for other locations within the City, in which case, Owner will not be considered
in default under this Agreement,
5.8.1 WorlcofPublic Art.
Items to Be Complete TriggeringEvent vent LEg.. New Use or New Are
1. Submit Final Design of Public Art. Prior to issuance of first Building Permit or five
Final design must conform to Public Art (5) years from the effective date of this Agreement,
Plan, whichever comes first.
2. Install Public Art, Prior to City's issuance of the first Certificate of
Occupancy for any building or structure, or the
expiration of the term of this Agreement,
whichever comes first.
With respect to the Final Design, Owner shall complete all construction and
development, shall submit all plans, drawings, and other documents, and perform all of its
obligations under this Agreement within the times specified above. During periods of
construction of the work of public art encompassed in the Public Art Plan, Owner shall submit to
the City a written report of the progress of the construction when and as reasonably requested by
the City. The report shall be in such form and detail as may be reasonably required by the City,
and shall include a reasonable number of construction photographs (if requested) taken from the
last report by Owner. Development scheduling or date or times of performance may be subject to
revision from (lune to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring frnther notice and public heating.
5.8.2. Inclusionary hIousing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit as a condition of issuance of each building permit, This fee shall
apply to all units developed on the existing three and one-tenth (3.1) gross acres. This fee shall
be used by the City for planning (including but not limited to preparation of one or tnore
elements of its general plan or for zoning amendments), conceptual design, final design, bid
preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill,
acrd/or construction of new or substantially rehabilitated existing affordable housing in the City.
Alternatively, Owner may at any time cease making such payments if it enters into an agreement
with the Community Redevelopment Agency or the Community Development Agency of the
City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability
covenants as required by State law, inclusionarylrousing units totaling fifteen percent (15%) of
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the housing units proposed for the Project as provided by health & Safety Code section
33413(b)(2)(A), and/or (b) provide for up to sixty percent (601/o) of these inclusionary units to
moderate income residents at its Project, consistent with Health & Safety Code section
33413(b)(2).
5,8.3 No Redevelopment Subsidy. The Owner shall not be entitled to request
or accept any agreement with the Santa Ana Community Redevelopment Agency for economic,
debt service payments, or other assistance fox the development of the Project. Failure to comply
with this provision shall be deemed in and of itself to constitute a failure to in good faith comply
with terms or conditions of this Agreement pursuant to the terms of Government Code section
65865.1.
5.8,4, In -Lieu Park Development Fee, The Owner shall pay an in -lien park
development fee amount equivalent to the Park Dedication requirement. The fee shall be
assessed at the value of $35.50 per square foot of area to be dedicated pursuant to the standard
established by section 34-204 el sen, of the Santa Ana Municipal Cade, as specified in said
City's site plan review letter; provided, however that the fee may be increased yearly beginning
twelve months following the effective date of this agreement, by the average rate of increase in
land costs in the City of Santa Ana, as that increase is established by the "Construction Cost
Index -Los Angeles," published by Engineering News -Record, or substitute index chosen by the
Executive Director of Planning and Building should that Index be discontinued. The fee shall be
paid prior to issuance of each building permit. The City shall use said fees for new parkland,
capital improvements at existing parks, and deferred maintenance at existing parks (up to a
maximum of fifty percent of amount of the fee), and seventy five percent (75%) of said fees shall
be utilized by the City in the Quadrant of the City (as set forth in the City's Park A&D Fee
program) in which the Project is located. If not used or appropriated this fee shall be returned to
Owuer, consistent with the provisions of (and subject to the exceptions contained within) the
California Mitigation Fee Act, Government Code § 66000 et seri.
5,8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC&R's) must be provided and approved by the Platuimg and Building Agency's
Executive Director for the project prior to the recording of tlue Final Map. Such CC&R's must
contain at a minimum, the following;
(1) No more than four residents per unit, except that for three-bedroom
wits, there shall bo no more than five residents per unit.
(2) No home occupancy shall be permitted in a unit, except in
accordance with section 41.192 of seg. of the Santa Ana Municipal Code.
(3) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specifier[ in the CC&R's in the event of
damage.
(4) Disclosure and release, CC&R's shall provide notice to prospective
owners of the urban character of the City and this area, including but not
12
limited to the permitted uses of the property and buildings in the immediate
area of the development (e.g., MacArthur Place, Oriff"m Towers, and
surrounding property zoned and/or devoted to cotmncrcial use), and shall
provide a release of all clahns against the City which may arise from or
relate to the disclosed matters,
(5) Terms and Content:
CC&R's are to be in effect in perpetuity,
ii. Any proposed modifications to the CC&R's will require
approval by the Agency's Executive Director.
M. CC&R's shall provide a significant financial penalty that
shall be imposed by the Home Owner's Association to any member
who violates these provisions
If the Project requires a conversion from rental units to condominiums at the time
of recording the Final Map, the Owner must abide by and comply with the requirements and
conditions of Santa Ana Municipal Code sections 34-33 i, et seq., pertaining to residential
conversion projects, prior to recording of the Final Map.
5.9 Responsibility for Costs of Work of Public Art. The City and Omer
agree that Owner shall be responsible for all costs associated with the design, construction,
maintenance and repair of the work of public alt provided for in the Public Art Plan,
5.10 Moratoria. Moratoria enacted by the City for the public health, safety,
and welfare, which are imposed on the Property or Project, shall toll the time periods set forth in
this Agreement.
5,11 City to Receive Contract Documents. Owner shall fiirnish City, upon
written request, copies of contracts and supporting documents relating to the work of public art.
5.12 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's existing regulatory process
shall be governed by the terms of those approvals, and in no event shall such conditions be
affected by the termination, cancellation, rescission, revocation, or default or expiration of this
Agreement.
5.13 Compliance with Governmental Requirements. Subject to and as
otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design,
construction, and operation of the Project in substantial conformity with all applicable laws,
ordinances, statutes, codes, roles, regulations, orders, and decrees of the United States, t11e State
of California, the County of Orange, the City, or any other political subdivision in which the
Property is located, and of any other political subdivision, agency, or instrumentality exercising
jurisdiction over the City, the Owner or the Properly, including all applicable federal, state, and
13
local occupation, safety and health laws, rules, regulations and standards, applicable state and
labor standards, applicable prevailing wage requirements, the City zoning and development
standards; City permits and approvals, building, plumbing, mechanical and electrical codes, as
they apply to the Property and the Project, and all other provisions of the City and its Municipal
Code (as they apply to the Property and the Project), and all applicable disabled and handicapped
access requirements, including, without the limitation, the Americans With Disability Act,
42 U.S.C. § 12101 of ser/., Government Code § 4450 el seq., and the Unruh Civil Rights Act,
Civil Code § 51 et seq. ("Governmental Requirements'),
6. ANNUAL RE, VIEW.
6.1 City Find Owner Responsibilities. City shall, at least every tweive (12)
months during the tetra of this Agreement, review the extent of good faith substantial compliance
by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1, as
amended, Owner shall have tine duty to demonstrate by substantial evidence its good faith
compliance 4vith the terns of the Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in compliance with tine
Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter
to Owner (tine "Letter") stating that based upon information known or made known to the City
Council, the City Planning Cotmmission and/or the City Planning Director, the Agreement
remains in effect and Owner is not in default. Owner may record the Letter in the Official
Records of the County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
7. DEFAULT.
7.1 Events of Default. Property Owner is in default under this Agreement
upon the happening of one or more of the following events or conditions:
(1) If a warranty, representation, or statement made or furnished by
Property Owner to the City in conjunction with the Project is false or proves to have been false in
any material respect when it was made;
(2) A finding and determination made by the City following a periodic
review under the procedure provided for in Govermnent Code Section 65865.1 that upon the
basis of substantial evidence the Property Owner has not complied in good faith with one or
more of the terms or conditions of this Agreement;
(3) Failure to comply with Governmental regulations;
14
(4) Any other event, condition, act, or omission of Owner, or of its
officers, agents, employees, consultants, special counsel, or representatives, which materially
interferes with the intent and objectives of this Agreement.
7.2 Procedure npon Default.
(1) Upon the occurrence of an alleged default, City shall give Property
Owner (the "defaulting party") thirty (30) days mitten notice specifying the nature of the alleged
default and, when appropriate, the manner in which said default may be satisfactorily cured.
After proper notice and expiration of said thirty (30) clay cure period without care, City may
terminate or amend this Agreement in accordance with the procedure adopted by the City as to
all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be
cured within said thirty (30) day cure period, City may terminate or amend this Agreement In
accordance with the procedure adopted by the City should at any time Owner fail to diligently
proceed in curing the default. Failure or delay in giving notice of default shall not constitute a .
waiver of any default, nor shall it change the time of default.
(2) City does not waive any claim of defect in performance by
Property Owner, if on periodic review the City does not propose to modify or terminate this
Agreement.
(3) Non-performance shall not be excused because of a failure of a
third person.
(4) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Property Owner, shall be sufficient to terminate this
Agreement and a hearing on the matter shall not be required,
(5) Adoption of a law or other governmental activity making
performance by the Owner unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the Property Owner, unless such an activity constitutes a breach
of this Agreement by the City, or the City undertakes such an activity which renders impossible
Owner's performance of its obligations or exercise of any of its rights vested under this
Agreement.
(6) All other remedies at law or in equity which are not inconsistent
with the provisions of this Agreement are available to the parties to pursue in the event there is a
breach.
7.3 Damages upon Termination Inno event shall Property Owner be
entitled to any damages against City upon lawful termination of this Agreement.
7.4 Institution of Legal Action In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any default or breach, to
specifically enforce any covenants or Agreements sot forth in the Agreement, or to enjoin any
threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the
15
purpose of the Agreement. Legal actions shal l be instituted in the Superior Court of the County
of Orange, State of California, or in the Federal District Court in the Central District of
California, Southern Division,
8• ENCUMBRANCE, S AND RELEASES ON PROPERTY.
8.1 Discretion to Encumber. This Agreement shall not prevent or limit
Owner, in any mariner, at Owner's sole discretion, from encumbering the Properly or any portion
of the Property or any improvement on the Properly by any mortgage, deed of trust, or outer -
security device securing financing with respect to the Property or its improvement.
8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage
or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors
and assigns shall, upon written request to City, be entitled to receive from City written
notification of any default by Owner of the performance of Owner's obligations tinder the
Agteement which has not been cured within thirty (30) days following the date of default. City
may modify or add to the provisions of this Section 8.2 at the request of any institutional lender
or pension trust providing financing so long as such requested modifications or additions pertain
only to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of
this Agreement,
8.3 Releases. City agrees that upon written request of Property Owner and
payment of all fees and petformance of the requirements and conditions required of Owner by
this Agreement with respect to the Property, or any portion thereof, City may execute and deliver
to Owner appropriate release(s) of further obligations imposed by this Agreement in form and
substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect
the release.
9. iYIISCELLANEOUS PROVISIONS.
9.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than
one signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement
constitutes the entire understanding and Agreement of the parties with respect to the matters set
forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements
between the parties respecting this Agreement. All waivers of the provision of this Agreement
must be in writing and signed by the appropriate authorities of City or of Owner. All
amendments to this Agreement roust be in writing signed by the appropriate authorities of City
and Owner, in a form suitable for recording in the Official Records of Orange County, California,
Within tell (10) days following the effective date of this Agreement, a copy of this Agreement
shall be recorded in the Official Records of Orange County, Califorrila. Upon 1he completion of
performance of this Agreement or its revocation or termination, an appropriate Certificate of
Completion acknowledging such occurrence signed by the appropriate agents of Owner and City
shall be recorded in the Official Records of Orange County, California.
16
9,3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section
65864 el seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning
any improvements to the Property or in connection with the Project; and (c) Owner shall have the
full power and exclusive control of the Property subject to the obligations of Owner set forth in
this Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section I of this
Agreement are part of this Agreement.
9.5 Captions. The captions of this Agreement are for convenience and
reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the
interpretation, construction, or meaning of any of the provisions of this Agreement.
9.6 Consent. Where the consent or approval of a party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably withhold.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with
each other in good faith, and assist each other in the performance of the provisions of this
Agreement.
9.8 Time of Essence. Time is of the essence for cacti provision of this
Agreement of which time is an element,
9.9 Conflicts of ]Law. In the event that state or federal laws or regulations
enacted after this Agreement have been entered into or the action or inaction of any other
affected governmental jurisdiction prevents or precludes compliance with one or more provisions
of this Agreement or require changes in plans, maps, or permits approved by the City, the patties
shall provide the other party with written notice of such state or federal restriction, provide a
copy of such regulation or policy, and a statement of conflict with the provisions of this
Agreement. The patties shall, within thirty (30) days, meet and confer in good faith in a
reasonable attempt to modify this Agreement to comply with such federal or state law or
regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of
such federal or state law or regulation upon the Agreement, the matter shall be scheduled for
hearing before the City Council. Public notice of such hearing shall be given pursuant to
Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact
modification or suspension which shall be. necessitated by such federal or state law or regulation
pursuant to Government Code Section 65869.5. At the hearing Owner shall have the tight to
offer oral and written testimony.
9.10 Severability, If any term, provision, condition, or covenant of this
Agreement, or the application thereof to any party or circumstances, shall to any extent be held
invalid or unonforbeable, the remainder of the instrument, or the application of such term,
provision, condition or covenants or the application of such term, provision, condition or
covenant to persons or circumstances other than those as to whom or which it is held invalid or
17
unenforceable, shall not be affected thereby and each term and provision of this Agreement shall
be valid and enforceable to the fiillest extent permitted by law.
9.11 Counterparts. This Agreement has been executed in one or more
counterparts, each of which has been deemed all original, but all of which constitute one and the
same instrument.
9.12 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10)
days following the effective date of this Agreement,
9.13 Estoppel Certificate Either party may, at any time, and from time to
time, deliver written notice to the other party requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreeirrent is in full force and effect and a binding
obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in
writing, or, if so amended, identifying the amendments, and (iii) the requesting patty is not in
default in the performance of its obligations under this Agreement, or if in default, to describe
therein the nature and amount of any such defaults. A patty receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt thereof. The City
Manager of the City shall have the right to execute any certificate requested by Owner hereunder.
The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees,
or other parties.
18
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner.
Dated this "I *day of *JU } e, 20j_�.
Approved as to Fotnn,
By
S.ONIA R. CAR ALHO
City Attorney
THE CITY OF SANTA ANA
By �2V t---.
AUL M. WALTERS
Interim City Manager
ATTEST:
MARIA D. HU17AR
CLERK OF THE C021L
VDC AT THE MET, LLC,
A California Limited Liability Company
By
yan O ick
Its Manager
19
STATE OF CALIFORNIA )
) $S.
COUNTY OF ORANGE )
On this clay of 200 beforeme,
a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city
that executed the within instrument, koown to me to be the person who executed the within
instrument on behalf of the municipal corporation therein named, and acknowledged to me that
such municipal corporation executed the within instlunent pursuant to its bylaws or a resolution
of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
SAS ATX25
COUNTY OF nn "AN" )
v
Otu this may of,before me,
VI a Notary Public in and for aid state, personally appeared
I U pc r proved to me on the basis
of s tisfactol vidence) to be the of the
that executed the within instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein mined, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to
its bylaws or a resolution of its Board,
WITNESS my hand and official seal.
SAIMA BAB]
Commission # 1908290
z tV�< Notary public • California i
Los Angeles county >
My Comm. Expires Oct 15, 2014
_. AIA ALL-PURPOSE ACKNOWLEDGMENT
sjt/7$($�p{,�.35,Y). n0 4. rSj. p$,aj$„gf„ryG`T<„TSn Xiraiil5iG�4ln. siLa �Of-�n,C lS:'�T ngSsi. nn$rt}5„iT �iS.c�1sT'.c$�cSi,y,.c${,}�$�?Vsa.,,rif.GiL>.t.G�#bt W
State of California
County of ISS
On 5.
Dale
personally appeared
SAIMA BARI
commission # 1908290
Notary Public ^ Califanla n
Z i e x ,
z Los Angeles County
M Comm. Ex Tres 0cl 15, 2014 ~
Race Nola,/ Seal Move
who proved to me on the basis of satisfactory evidence to
be the person whose nameb) is/am-subscribed to the
within insiru ent and acknowledged to me that
he/sh'Mlharexecuted the same in his/heAheir authorized
capacity n), and that by hfs/h Ldboeir signalur�) on the
Instrument the personr , or the entity upoh behalf of
which the personal acted, executed the instrument.
'I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS m h nd and fi al seal.
Signa ure
ignet r N ary PUHd
OPTIONAL
Though the Information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capaclty(fes) Claimed by Signer(s)
Signer's Name: Signer's Net
❑ Individual ❑ individual
❑ Corporate Officer —Tille(s): _
❑ Partner — ❑Limited El General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
O Other:
Signer Is Representing:
HIGMTHUMBPRINT
OF SIGNER
0
Number of Pages:
❑ Corporate Officer — Title(s): —
❑ Partner —❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
EXHIBIT "A"
Properi , Legal Description
REAL PROPERTY IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 1 AS SHOWN ON EXHIBIT "B" OF LOT LME ADJUSTMENT NO. 98.001 IN THE
CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED
APRIL 9, 1998, AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL B:
A NON-EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS
AND ACCESS, AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 9, 1998, AS INSTRUMENT NO. 19980210011 AND IN
THAT CERTAIN AlvIENDF.D AND RESTATED DECLARATION AND GRANT OF
EASEMENTS RECORDED APRIL 15, 1998, AS INSTRUMENT NO. 19980222444, AND IN
THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT
AGREEMENT RECORDED NOVEMBER 11, 2004, AS INSTRUMENT NO. 2004001056213,
ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A
HEREINABOVE DESCRIBED,
PARCEL C:
AN EASEMENT FOR THE CONSRUCTION, INSTALLATION, MAINTENANCE AND
REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS, AS SET FORTH IN
THAT CERTAIN STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT
RECORDED APRIL 18, 2005, AS INSTRUMENT NO, 2005000291720 OF OFFICIAL
RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXHIBIT "Bw
Property Site Plan
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EXHIBIT B
Detailed Site Plan Pending
EXHIBIT "C"
Public Art Plan
Public art valued at one-half of one percent (0.5%) of the total Project building permit
valuation is required. Public art shall be comprised of a single art piece or grouped ail pieces
to be placed at a final location to be deterrained as specified in section 2.5 of this Agreement.
The public art should invite participation and interaction, inspire, add local meaning,
interpret the community by revealing its culture or history, and/or capture or reinforce the
unique character of the new place. A comprehensive Public Art Plan indicating compliance
with this requirement, and which proposes specific pieces of art for specific locations or
applications, shall be submitted to the Planning Conunission prior to the completion of the
project's first phase. All public art approved by the Planning Conunission in the Public Art
Plan shat/ be completely installed as provided in section 5.8.1 of this Agreement.
2. Art should be sited to complement features such as plaza or architectural components so that
the art is an integral part of the development site.
3, Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4. No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
5. All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination,
6. All art pieces approved and htstalted pursuant to the Public Art Plan shall remain on the
project site and may not be removed without the approval of the Planning Commission,
7. Expenses Not Allowed from Art Allocation
L Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not Integral to the illumination of the art piece.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image,
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
EXHIBIT "D"
Cooperative Agreement for Off -Site Improvements
COOP13RATIVB AORgIIAMTPOR
OFF -1W r ROROVRMBNTS
THiS Agrooment is entered into this day of. - - -- - -, 2405, by attd between
Uro SANDPOINTB NBIOUORHOOD ASSOCIATION, INC„ a California, non•prof(t public
hanoffl and Ncral501(c)(3) corporation ("Sandpoiiito"), IhoNBXUS DBvHLOPMBNT
CORPORATION/0814L DrVISION, INC. n Caiiformia corporaflon will The Ormid Plwr 2,
LLC, it CaliforniaLW10 Liabllily Coanpany (colteotivoiy referred to heroht as "Nexus),
COASTAL RTMPROPBRTBIS, INC,, a CnIlfbilUacoritoralion ("Cenovn Gammons,%the
COMMUNITY RBDBWLOPMBNT AQBNCY OF THE C& OP SANTA ANA, apublic body
cottwrale and pclilio (the "Agency"), and the CITY OF SANTA ANA, a charter city aadmuniolpal
cogrornUon duly argart{xed and existhtg under flue Constitution and laws ofiho Stato of California
(the "City")
WfIM.SSBTH
A. Nexus ties proposed conslnrating at Helton Ceptor a flue loves rosidalnlaf
condominlwm project, 1144 23•re5ldenUat )evol enndoraiahtn ldght rloo and one 24-resldonlial level
eondombtiuna.(for a total not to exceed 835 oondonth>hnn wills), together with auoillary, retail riot
to exceed 14,000 square feel (the'Tlexus Projcel" ),
D. Ocnova Commons haspreposed constntoting at lite northeast comor oWwAritnlr
Boulevard and haparial Promcoado mi approxhnntcly 278-mUt eondornfmhtm project cunslsling of
an 18-rosidenlial love! high rise project and wt olghtatory building, 10891hor with wtolltary retail
(tilt+" Ocneva Commons Project'),
C. Sandpoluto Is a non-profit cerporallon that serves as a eonduilbolve"n the
Sondpohnto Nolghborlwod ("N'olgllborltoo(V") and outside community and polll(oal Inlores(s,
Sandpotnte Nelghborhood to a rosldoni(at nolgbborhdod ofsingto family and some multi -family
homes In Ute souUrosat portion of8wrta Alta. The SandpolntoNalghborhood consists of
approximately 800 residences, Swrdpolntodoesnot have Use mithodly to bled any individual
rasldanl of the SandpehtlaNefgitbortmod.
D, xlroAgouoy Is a cornmuttltyredovolopmarrt agmloy, as lint Conn is 4e8uod hr
Callforaia Hoalth & Safety Code § 33100, In 1982, the Agency Premed Ute Soule Main
Redovolopmamt Project Arca (Trojeol Area"), and Nexus and Ounova Commons aro located within
Ilse Pxajeot Arcs,
B. S Mdp'olole has fdenlffied eonatn physleat Improvontents needed lir tho area of the
Neighborhood thdare neoessllated by or would iu some way offset lite hupaol ofUro two
davcloprndnt projects. Nexus a rd Oaneva Conmrons'doslro to confrlbuto towards Uracoat ond/or
eonstrucilon ofthosolnplovemanls to tileSandpohtto neighborhood in addlllon to mid to
. Bx�lilllx D
ordinance No, NS 2040 1
Page 10 of 611
supplement the miligation mmuros and 000dlllons of approval Imposod by the City of their
rtspoofsvodevotoptuonto, Those, huprovomontsAre set forillInfthibftA,altaohedherotoend aaado
apad hemofbythis relbronoa("huprovoitonte).
Ir, ThoAgony)owiitlvatoasslSlInlbtAnidingoflllohnpeovomonlebut mUyftom a
portion oftho lox Inorornoni aolualiy gonetated by thoNoxus aad Ponevo Gbtmnoits NoJecis acid to
Pond speolfled Improvements tical would roduco blight and benefb thoProjool Area.
d, Tho Clty'o partlolpahton In Ilds Agreomont is flinlW to 000rdh1o11on oflWtding
imcUor constmotton ofcolloht, heroin apeoiHed publioly owned Improvements
IT, NOxna has agrood to tonstniol some of Oho tntproventonts, andpay for iho
C011SIM011011 Of 01110M, as Moro flttly $01 f0tili 110101Y (`'Naxos Inlprovtmonte"},
I, Gonova Coninions has agreed to Tray for s podion of the Nexus hnprovomoma.
WONY, T1IHRBF0,RB, the pantosItoro(o do tmnuallyogroe as foltowst
1, SCOM OF WOhtK
A. Noxus shiall couftiol andlor flmd lire Improvemonts f4cliflod as "Noxus
Improvements" In Rxhibit A horolo according to the schoduto set forth h,11AAbit R to Ibis
Agroomont, ntloohed horolo raid hiootporated heroin by this roibronao, Nexus shall be entitled to
full use of Tito 8utds dopoaited In tho Npxos)?serow to undertake thoNexus Improvennonis,
B. In oomidomilon for Noxus' agrooment to construct and/or fund thoNexus
rmprovonlont, Gonova Couunous agrees to wnldbnto a sunt equal to its pro-mta share ofroshdenfial
units li tweenItselfandNexus(whichIsolnreilttytwenty-fivoporoont(25%)puteuanttoMost
numbortact fotih husoottona Aand B of die Realists nbovo) ofQio cost of die Noxus
Imptavowouts, towards (Ito toil lfroreofpayabla at the timet call cd for below, Notwlf istarlding tho
foregoing, lfNoxus has. not oxeoatod ibis Agroomoul prlor to [[to data this Agreement Homos
binding on Gonovn Commons (whfoh ilia paries agrceshall conolusivoly, doomod to to tho first day
upon whtoh lids Agreoment boa been oxeculed by Genova Commons, tho Clty; the Agouoy and
Sandpolnto),11ton Genova Colnnlotta pro•rafa sharo conhibalfon to Iho Ntxus Morow shall be
conolusivoly ffxod at hvonly-levo (25%) rogardloss ofiho aohtal number ofrosideniiat twig
approved for 1t and Nexus,
C. If Iho onilro Nexus void Gonova Commons Projeols ate dot wtmiilad, Agency shsll
oauso pie oonstruodon oftlto linproventonts hdondfiod av "PubiholpOwned 1pi0ovonralts" In
1449bil A herolo aceording to the schedule set fodh In %bibit O to this Agrdomont, attached haroto
and incorporated heroln'by Ibis roferonco, Tho pantos aoknowfodgo acrd agreo that the tolat coal of
the publioly Owned Inipxovontonts, Inolud'ung studios, dosign oud ovorhoath , shalt net oxeoed Vivo
MIII1011 Dollars ($6,000,0000),
RXM BIT A
Ordinance No, NO.2800.
Page 81 of 81
21 COMPENSATION AND MaHO) OF PA'YMEN'T
A. Nexus shall, whtilualxty (60) days ofoxebullon of flus Agreement, open an escrow
accountntPhslAmedaulT1t1o1nsurwtoeCompatty,2 VirstA010loatWAY, Santa.Ana,Callfoniln,
or on equiv3lenf aserow eompmly approved In advanco by Gcnova Commons and Sattdpointo, for
deposit Winds to be used topay for 1110 Noxus Tmprovemarrfs (roferred to Well) as the "Nexus
17. Sandpointa shall deposit $1,000.00 JutolhoNexus Esorow on tho Bsorow
Submission Date no later krait flip date the, of the lfrat payment made iniquant to paragraph 2.1). of
this Asro0ment
C. Prlarioth0daadtinaspeolfiedhtpamgraph7,,A,ofIhlOAgreOmeut,Naxusaud
0OnOVR C011hnana shall meet and confbr In good feitlf to ogro s upon tho affiliated cast of ilio
Nexus huprovomants, if, nt any dura, olktor Genova Cmrmrons or Nexus dctarmtuos Ihatsuolr
agreement Is not possible, kren tip objeoting parry shall submit its dispute In willing, togWior with
anyavidancauponwhlaliltrafias tolhDxxcauRvoAirwIoruftloeCity's Pobilo, Works Agoneymid
filo other party. Within Itfiaen(15) days oflisrecolpiofaald1101100,ilia 0011-QWOOIingpartyshall
01011 have fifteen (19) clays to submit anyresponso It has to the city find kloobJeathlgparty, Tlta
ExcoutlveDireolorofOLD City's PublioWorks Agonoy ordcalgtreoshulfRion, wItwil ftly(3O)
days of rceelpt of the response, if any, or Ilio expiration ofsald deadline, Worm beth Genova
Commons and Noxus In writing oflho Anal delopoloulian oftho eslimaled Iota( coat, wbiolt all
garlics agree shall bo couahislvo and binding upon both Nexus atsd Cloaava Camerons, Thoroafier,
Noxus surd GlmtOva Conunons shall deposit Ihafrrespc0tiva shares oftha estimated cost oflha.
Nexus lmprownionis as sot forth In paragraph LD, of Oils Agraoinow, loss $1,000,00, tete ilia
Nexus Escrow no later than rho data speolfied In paragraph 2.D. of this Agreement,
1), Nexus shall pay Into fhoNexus Tlsorow no later than (1) the data Ilia first buildbrg
penult Islasued by dna City for ktallosns Projeol, or (11) a datotunoty (90) days after i to issunnce
of enlilements to Nexus, provided no Blifiallon or roforenduni pellllon 011nllelfgitg Nexus hes beau
Iliad and served on the City, whlchovar comes later. Gonave Conunona shall pay into ilia Noxus
Iaorow uo later than (i) the crate ilio flrst building pomtit is issued by the City for tho Coma
Conunons Projeot, or (i1) a dote ninety (90) days Atter rho inauanco of entitlements to Cionova
Corm -Am, provided no lillpalion or roferandumpe lion ohationgbfg Genova Conunons has been
filed and served on Iho City, whlohcver comes later.
BXBIBIT T)
Ordinance No, N8•2800
Pago 32 at 81
B. The Ageuoy ahallpay the City its coat Incurred by the City for lhoPubllolyowned
Improvements set forOt1nUdbltAtoNits Agivonnonh provided,howovorthnttotalCmnndlmenl
by the Clty and Agency tosvard the PubOaly-Owned Improveinonls aliall not oxcocd FIV13
MILLION DOLLARS ($5,00%000,00), JflltailemsovtforihnsPubllplyOsvnedlGnprovanwrte}n
TWilbh A aro found to cost inoro then Oils snm, lhonihoAgonoy shall, in the exercise orils solo and
absolute discroflon, limit or elfminalo Pubitoly0wnotl Jnairovenicuts sat forth in Wilbit A;
provided, however, Thal rho Agenoyahall proceed with Oiepublloly.0ivurdLnprovontonts In Iha
order AN set forth in said itxhlbil.
NIIXUS CON8TRUCf10N DIL W1Nd5 ANDIMLATDD DOCUMLNTS
A. Nexus shall prapavv and sutm(teonstrncliai drawings and rol0ted dovumaits for .
Items listed on Bxidblt A to tho City fa- roviow (Including, but trot iimltod to, architech"I rovlow)
and written approval wand At the !rotes established Int lite Sohalulc o0orfornmtwasat Ibrth In
lWilblt J3 to this Agreement. The constnmllon drawings and rotated dootmtonle 411411 bo11151111004
htlwostngost (1) the Preliminary Silo Plans eind(il)Final Site Plans.
R, During the preparation of nil drawings and plans, City staffand Nexus shall hold
rogularprograss nicotings to 000011010 Oto proparollou of, submission to, and rovlow of
constntcllon plans and rolaled dooumontts by the City. Tho City 41aff attd Noxus shall oonununioato
mid amisult Infbnnnlly as OrRlucatly Oslo necessary Io Msrtrattat Iho fannalsnb[nittnl of any
domonouts to tho City muirocolvepronipt mrd speedy consideration.
C. Any rovislon or correction ofplansrcgnired by Iho Citysltali bo deoaned approved
by Out Agonoy, Conovo Coonnons and Smtdpohtto.
D. Neither Iho Clty, the Agonoy, Sandpoluto orUmiova Commons shall Novo any
oswiorship Interest in, or nay right to use, thoProllmindry Site Pions or tho.Fluid Slto Plans
submitted by Nexus, norshall the City, the Agoney, Snndpoinle orOonova Commons oltdnorizc tho
right to 1130 any such plans or dmwings to any person or sadly.
d. APPROVAL OF N IJ8 PLANS, DRAWJNOS ANI) R13LATIRD DOCUMRNT.S
A. The City shall have His d8ld of reasonable review (Including, but not Ihnrtod to,
architectural rovlow) of all plans, drawings stud related dooumonlshtolading any proposed changes
therein. Tito City ahall approvo or disapprove stn ftli ns; drawhrgs, gild rolulM (and any proposed
change4 ihoroin) wllldn Iho 111110 eslobli4lied ht thoSohedulo ofpcnbrnnanoo sot folih hnJixhlbit )3
horato. Such approval shell not be onroasonably wlhhetd.
13, Any disapproval shall statolt writing Oto reasons for disapprdvai. Tho City shall
have tito tight to disapprove, in its roasonablo dlscreilon, any of the Fluid Plans if the Final Plans do
ant conform to Iho Appravod Plans, Iho approvedl'relhnlnaty Plmis or do not cvnfvrm to Bxlilbit A'
to Itis Agrcoinent, oruro lucomploto,
)3XHIs1T D
Ordinance No. NS -2060
Page 33 of 64
C. The Cily shall state In w,dthig Mormons for disapprovol of fico Fhtal Plans witldn
sixty (60) dates of roaolpt of copies ofmloh FInAI Plans, Follate to respond within Ails sixty (60)
day period shall not its. grounds forrostlGmUlAI,
p. Nexits,uponrocelptofauoll000fdlsapproval,shailrevise, suoltportions offile
Plans, drawings orrelaled doaitments In A utmmor That roasottably salislios Iht$ masons for
disapproval and shall resubmit soul) revised pptltous to rho City As soon as passibl4 aRarreca3pt of
the notice of disapproval. Plans, drawhigs, and related dootuuouts recolvlog City approval AIIAllnot
bo subsuptonlly disapprovol. Noxue s1in1! onsnzo prat ail of its plans, drawhlge and Jolaiod
documents comply will) all Clovonmtentnl Requiremonts,
C0MMBNCJW3NT AND COMPUTION OF CONSTRUCTION OF NExus
1MPIMINTINTS ' .
a. Nona tilialt conshuctand/or thud, nlilizing old Noxna lkarow, lho ftnprovomonis lit
confonnattca with kxhibit A to title Agreoniout and the approved Vinal Plans, To Wo omentthat Clio
oost ofthoNexila Ttuprovammits, eonslntotod In cotrformaneewllh BANC A to thlsAgreamoN sidd
the approved Muni Plans, exceeds the Ihnds In the Nexus Psorow, Nexus slid Genova Commons
shall be solely responslblofor sold costs, With each rospottsible for any Additional cost to Ihesarie
peroenioso as Is sol forth br paragraph I.D. QUIN Agroomont, Nexnssitail oompleto or fluid, as the
cesemay bo; the constrmllon oflhohnprmvurnuntsl)raonformmtcvwlthliaschedidesalrbnhin
13610 A to this AWooment,
b, The palies Aalglowlalgo and ogres Atat the Block Wall ldanAIlol as ItcnrNo, l on
Bxhibll A will be consfntclad ou rid propoillcsofdozeas oflndlvldual honloAWnere Irl Aro
saudpofidoneighborlrood, 110110ofwhomamParltestoNoAgreement. Thopardesagree touse
their best oftbrts to obtain p ermisston of oaoh of flea o hidivldtull prolicrly owners to construct this
Block Wolf mrd to permit the City to permanently, maimaln Clio climbing ivy Along Clio exterior of
flit) wall, Mwovar, It Is the pArffW umloYslihilhill And Intent thokshouttl Any property owner rofttso
Io Agree to pentdl Aro 011sMl911e1% nutVAr Wlorler Ivy mnhttenanoo ("hotel outs"), thut the Block
Wall will be constructed rogardloss of ally hold•onts, turd that None $11411 corlstmet the Block Wall
In such f tshlorr ns to)oin the Block Wall to existing wall segments Owned by hold outs mid
11111dml2o any negative nostholio impact oansed by such hold outs. Nexus agrees to hold Smidpolnlo
And Its offloero, directors, oniployeoa attd agautshamitoss from miy ofalm by Any And nil property
owners lnoludlng suoli hold outs arising out of Aio construction of tltoBlook'Wall In MIMI
Smidpohite, or Its ofAcers, A[reotors, employees or ngouts are named. Nexus shall ho pennldod to
select rAunsel to d4fmid Sandpatnto of Ai44xpeirsc of Nexus, In the event of A pptentlal conflict of
Cntarest balwoon Sandpolnto And Nexus, Smidpolnlo shall havo Aio rigid to solcot indopondonl
counsel. A111basardcostsOFlndopondontcounselsofeetedbySotadpotnte,fordofensoofallyofabir
arising out of or rolathtg to mry olailtte dosarlbed heroin shell be paid by Nexus on behalf of
Sandpolute.
BXHIBIT b
OrdIAA900 No, NS -2060 S
pace 3d of 61
6. AOENCY NOTICE TO PROCHED VOR MISION AND CONSTRUCTION OP
PUAT,TCLY OWNED ROROVI3MtIN7.S
Upon the lssuarnoo of a eerlipaale of ocauponey pursuant to Iia ¢olitbrrtla)Bullding Code
for (1) all residential units in a inhdnunn of two of the throe high- iso lowers it tho Nexus Project,
and (11) all rosldonilalunits in the Ganem Commons PraJool, the Agonoy shall glvo the City a
notice to proceed to design and construe! the Pnblloly-OwmxPhnprovanrcwds as set forth III Bxhlbit,
A. If only a portion of tiro rosidentint units have been aatstmolad willdrn live (5) yours of lino date
of the Commonconnont Dale, (halt fine Agerey shall only give the City a nolleo to proceed with a
partial list of lions os sot Mill In ExIdbit C to this Agremnom, The Agoney's obligation to pay for
thePublialy-Owned hnproventot)1% and the City's obllgallon to eoruplato these Publicly-ChvJtcd
Irniprovomonts, orany pmt tinereof, shall bo timhed by lire Agency's abllily to iWtd sett work !bola
lire projeat-speolflo lax inormaeat gonorated'by Ilse Nexus Pgeol; provided, however, that City mad
Agonoy shall constntol atom no. La, on the list ofPublloly-Owned Improvements in Exhlbit A to
Ilds Agreamenl ragazdlass of Uw projeohapeeltto tax inoromantrocalvvd by the Agonoy.
7. CCN1MUNC8NMNT AND COMPL11TION OF CONSTRUCTION OP PUBLICLY
01VNMD R&ROVI M MS
a. City shall construct Ulu Publicly-Ownedhnprovomonls In omtformancowithlho
schedule set forth In Whit C to this Agreement and the approved ]final Plans; provided, however,
that dw Agonoy mid City shall bavono obligation once the cost of the PubllolpOwned
lmprovements oxceeds Vivo Million Dollars ($5,000,000.00), ff trio cost of IhoPublloly-Owned
Improvements, Including all design, adrnlnithillivo mad construollon'oosls exceed $$,000,000.00,
Utou the City shall consirrct only chat portion of Ilso Pablioly Ownad Enprovommtts as spool fled ill
Ilxldblt C ht the exomisa of lite Agonoy's solo mid alrsoluto disoroilon,
b. C14yshalT,atdtocanolatslonafgtoplanlaotabllshmantphasospeclltulinklxlnlbitl3,
additlonally rnalalsht Uro clfnsbJu$ vlaay acrd irdSolloa coustnaaled by Noxrs along tho ouleldo of
the block wall, referenced ln,item no. t on Lrxldblt A horelo, but Uro City's old lgallon to nlalntaln
Ilia olimbing Onesohall only apply to thosopmporty owners who execute a ffigade easonront with
Iho My In a roan approved by the City Attolnoy pormltting the City to malwaln said ailtnbIng
vires and ludonudfyhng Uta City rrour any liability oansM by said olimbing vinas and/or irrigation.
Sandpohtto shall be respow(ble for oblandng algnantroa &ons those lndlvldual homeowners,
it,"LGIEILITYAND INDEMNIFICATIOND(RINGCONSTRUCTION; BODILY
)NJURY AND PROPMRTY DAMAOE INSURANCE
A. Prom mrd AM Ilio Elfecllve Dale, Nexus and Oonava Cvsnunono agree to and shall
indonunity land hold Ageney, dity and Sandpotnty, and their rospeoltvo oflieara, direotors, agents
lard employees harmless gam and against all dtunapa to praporty or laJorles to at, (1041 of miy
person or.persons, Inotuding employees or agents of Agency or City, laid ahall defend, lndornrdty
EXH � fT D
Ordinance No, NS -2680
Pago 46 of b1
and savo Agonoy, City And Swidpohilo, and tholr officors, agents, and employees, kom any and all
clohns, demands, suits, actions, or proeeedirgs ofauy kind or nAturo, lttolodbrg, bol not byway of
limlialion, warkars' vompensation claims of or by anyone whomsoever, In anyway rosullfng from
the negligent or wrongAd sots ar amsssions of Nexus or Geneva Commons or their raspeetivc
0anployees, agents orsuboorrlractors, irur itsalfand no ollnor, Saidpohdo agrees to }laid LAmioss
Agony, City aril Choir rospcctivo ofYlcetsdirectors, agents and employees frau etrd against nil
danages to property or Igiudos to or death of any person orpersons, In any way resulting from the
iregllgentor wmnglbi aa[s ar onnlssiwns of Naxua or [to,navA Commons, or their respeoltvo
0mployeas, Agmils or suiconirnotors; This Agreomenteholl not bo httorproled or construed to
obllgMo Saidpolnlo, its olfluors, dlrcotore or agents, or the Neighborhood to defend, Indemnlfy or
to siww0r in Ary way for dee Agency due Clly or tlnelr rarpeoHvv offlcars, dlraolcrs, agents or
employees For aitch clolms.
U, prior to Iho commencomenl ofconstmollon, Nous dr any otherpartyworking
Albin the real property of alto Cly orAgonoy, still)[ obtain At lie sale 0081 and filo Willi Cho City and
Agouo% and malalaln for lho poriod covored by Ods Agreement, a policy or poliviw of liability
1nlanraie0 or a caNfficnto Of 811011 lualrrnnco, conalslonl with this Agrcomaup naming Agcnoy, tits
City and Sanipoint% their officers, direowns, agents, and omployaas, as insured or additional
Insured, which provides coverage not loss than that provided in tiro toms of a eomprohensive
gonoral liabfllty fnrsut'atao policy aga6}sl liability for any and nil olahus and sulk ibr drunagas or
Injuries to porsons or proporty rosutling from or arising out of operations of Nexus, Its officers,
dircciora, 8901117, oromploycos, Said Polley orpollofos ofiusnanao shall provfdo covarago for both
bodily Injury raid propotty danage In 11011038llinn 0110M Illon Dollars ($1,000,000) combined
single, limit, oritscguivolenr, Sold polioyorpoliolosshall Also conlAinaProvision that no
torminallon,caroolladon, orahaige ofeovamgo oflnsured shall bo oMotivo tmlll hiller thirty (30)
days notice thoreofhns been given lu whiling to City And Agency. Noxus shall give to Agency and
City prompt and lately notice, of claim mado or snit Instltrded adstng oat of Noxus operations
heronador. Noxus may proeuro mid mahriniu, at IIs own cost mid expense, any Adii(liomd kinds aid
Mrouuls of insumneo, wldoh In its own,ludgniont may be necessary for its proper protection hs filo
proswndivnofOle work, All hummuopolloles$hallbewdttenbyresponsible mid solvent
Insurmice companies and shall Include. mi additional insured w0ureoment hi sobetmdtAlly the form
of Exhibit D, Attached hereto mrd Incorporated horahn by this refcronce
9. CaMPI-TANCDVATklCOVi3RNMI]INPAl,R}1QUIR M13NTS.
Nous shall carry out the daslgrr,.canstnration, and oporallon Mile Noxus Lnprovonnants in
atbMatliAl e0orormtly Willi all opplIonblo laws, ordtnanoes, stabiles, codes, Dries, regulations,
orders, and door", of ilio United Slates, ilio Stato of Califbrilis, lie County of oraigo, tine City, or
any othor polifioah subdivision in whlch the Property Is located, and of aiy'otherpoll Neal
subdivision, agency, or fnslnnmamaliyoxerclsing jurlsdictlat over Iho City orNoxu% Inaluding all
applloabte fidamt, atnro, mW 10041 000upa8on, gnt'otyand health laws, ales, rogulAdars And
stnndords, applloAlle slate and labor slmndmda, appliaablo pinvalling wage requiromonts, the City
waning and development standards, City pemrila and approvals, building, plumbing, mechanical
EXHIBIT D
Qrdlnando No. N6.2000 7
PACO 410 of 6i
slid olcoldcol.codw, mid alt otherprovietons of the city and Its Mundcipai Codo; gild all applicable
disabfod mid handicapped access requhninenls, Including, without the Ilmllatlon, tho Americans
With Alsablilty Aot, 42 U,S.C. § 12101 et seq., Government Code § 4450 of coq„ and the Unnih
Civil Ittghis Aot, Civil Code § 51 of seq. ("t3ovenunonlol Itequiremouio' ).
10, DBYAULTS AM it WIDIBS
If any patty (Whnlls 1n performanoo of Ila obligations, eovonauls or agreementshereuneter,
lite dofnu[ting patty almll bo ontided to cure the doflauil In accords oo vrlih this •seotloo, Tho Wifrod
party shall glvewrlilmuiotice of default to the party in dolAn(t, spcolaiug (lie dofmult complained of
bythelwhircdporly. Delay ftigiviugsuch nolfooshall not consdlutoawalvorofany dothul[nor
shall ttoliango tho limo 9fdofmalt. Tito dofadllingparfy must, within thirty (30)days, following
scrvicoofpaid notice, aoinunonoo to ouro, correct or romedy such Whim or delay and shall complete
audictiro,carremlon,orromet(ywilhroasonnbladlllgatao.
JI. INSTITUTION OIt LBOAL ACTIONS
Subject to the provisions of Seolton I3.hercof, In addition to any otherrights or remodtos, oilhor
patymayhisiltula legal action to cihro, correct ov ronicdy sty dafauit to iveoverdautagos for any
default, or to obtain nny other ronledy emtslsloat veldt Ilio piuposo of dills Agi•conhon .
12. APPLICABLBLAW
'fids Agwemont mid all queslloin roloting to Its validity, hdorprolallon, performaice, and
onforooniont shall be governed and construed ht accordance willt Ibo laws of the Slato. of Ceiifomfe.
This Agreemcni has been oxecated and delivered In the Slate of California and Illo valldily,
integnrolallon, po*rtrianco, mid oArcemeni ofany of iho olausos ofthls Agreement shall be
dolorntinedAnd governed byClio lotvsefthe state ofColfFonda All podlesfinrthorWoo that
Orange County, California, shall be the votive for any action or proceedhig ghat may bebrought or
mdse on( of, In connection will) or by reason offtAgroumont.
13, R101IT3 AND IMBDIBS Milt CUMUi,ATWH- -.
Bxcept whit respect to rights And remedlos oxplussly doctored to be oxolustvo in this Agreement, the
rights mid romedios of the patifos ao enrol lnilvo and the exorcise by olthor puty of one or mora of
such rights or rontedles shall not preoludo the exerolso by It, at lhesane or dlfforont times, ofany
other rlghis or remedies for the sante dofanit or any olhor default by the other party,
BXHlnft D
A Ordinance No. �t3•$a80
Page 7 of 61
14. DAMAGES
In Iho milt Ktal dto Agency or City is tlnble for damages to Noxus, Swtdpointo artd/or Geneva
Commons, snob Ilabllityshall not exceed costs incurred by Noxus, Snodpolnla and/or Genova
Commons in the porfnrrnanoo of this Agrornentaod WWI not exlond to compensntion for loss of
Inhne 11100me, profits orassols.
15, NOTICES, DUMAND AND COMMUNICATIONS
Formal colicas, denwrds and eenmutdcallo„s lifteon the parties shall bo sutlfolordly given If
dispalohetlby roglsieracl or cerldfied rnal(, poslagoptopalcl, rohtm recolpl requested, to llro prlpoipal
offffticos of tiro Agenoy wrd rho Devolaper ns desigumel below, Suoh wdKel notices, damanda and
communloadons may hosantln Iho srutta ptarmor to such eUneraddrossos as either pally stay from
Elmo to Limo doslgnale by mail as provided in Oils section,
City: City of Santa Ana
Planning mrd Building Agonoy
20 Clvto Contor Plus, M-20
Saila Alta, CA 92702
Atha Slovollatding,Bxaonlivoplrocior
Phone: (714) 667-2700
Fax: (714) 973.1461
with copy to: City Attorney
20 Ctvic (!enterPlau, M-29
Sawn Ann, Cailfomia 92702
Agenoy; Community Development Agwwy
City oiSwda Ann
20 Civlo Center PI ave, M-25
Santa Aiza, CA 92702
Atli): Palrlota C, Wldtakor,l3xaculivoDircclor
Phone: (714) 6441.5360
Vex: (714) 647.6549
wigwopy Io: Agoucy cionoral Coimsol
Oonunwdty Redevelopment Agenoy of tate
Olty of Ssu,ta Ana
20 CI vis Centor Pl,urt, M49
Swtla A„a, Cellfornin 92702
BXHIB1TD
Ordtnaeee No. N3•2000 9
P600 00 o161
Sandpohda; Sandpoint* NalghborhoodMS001a(1on,Ine,
Rp. Box 27 t22
SaulaAua, Catlforlda 92799
Mention: BobBlaak
Nexus: NoxusAavdopmonl CorporatloiJCanlral Ulvlalon, ho,
Tbo (lrnnd$larr 2
1 MaaAtUntrVlane, Suite 300
Santa Ana, Callfomio 92707
Attenlidw Cory W. Alder
Ooneva Commolm Coastal 93MPropeNlcs, Ilia,
13911asi Allo,tAvouuo
SattaAnn, Calitbmia 92707
Attentlon; FmnooMola
A paty may change its address by giving 1101100 In wriing to the othor pantos. Thoroattor, any
nonce, tender, demand, delivery, or other conununicall4n ahnil ba nddressed slid nrmsnAted to Ilse
new address, Ifsant by mall, airy nolico, tender, demand, dolivery, or olhereommunloalion shall be
efteolivo or doomed tolnam boat given three (3) days nReril hasbcon deposited in thoUnRed
Mato mail, Italy registered or codified, whh postage propnid, and addressed as sot forth above, If
soul by fnosimilo, any nolico, tondoy demand, delivery, or oUor communication shall be offoolva
ordeemed tohnvo bolt given Imat(y•four (24) hours altar Ute Umesat folit on ilia tronsndssion
report lssned by Ute transnd(ing fheshnilo maahino, addressed as sotfodh above. For purposes of
oatoalatins [hoc time Rome*, we -kends, federal, state, County or City holidays heli be axyhtdod,
T3XIItB17' ])
I0 Ordinance No. NS -2600
Page 60 of M
16. ' BFF+ECTXVBDATE AND TBRMOFAOIW13MBNf
Tlds Agreement shall lako offcot from And altar Ilio data of adoption slid approval by ilia
City sad tho Agonay pursuant to offMolai aollon ofthogoveruing hedies thorcofand shall he
effeollve uml I oanphelton and nccalnnnca of Ilia Nexus•Ttnprovamenis mud Yubllady-Owned
bliprovenients, If (deaava Commons Is approved by the City and Nexus is not, titon Oerteva
Conunons shall lake over Noxus' obligallons to co)[slntot it porllou of the Nexus imprownionts
under this Agmomonl, bu(shall be rcgmiml to (1) neat aid eomfox with lite Agonay mid Sandpoluto,
and using Ula order of IhoNastip hoprovemenis speoUied in BxhlbitA qs a guldo, daslgnalewiiioh
of rho Nexus Improvanculs shall bo coustmoted using Gonovo Commons!wormy fi vo poment
(25%s) sharo oflho csihnatcd coat of 1110 (0141 Nexus inlprovamotds, and (il) the pad104 a19ao acid
aolmowledga (hal Ail ro1'oroncox!Crain to Nexus obali'badaunted to boroforeneos to Gcnava
Commons, If Naxos is approved and Oaneva Commons is not, then Nexus, the Agenoy and
Smndpohuo shnil neat and cmifor in good Allh, and using ilia order of thoNoxus Fmprovamonts
speolRcd in Bxlgblt• A ao a oulde, dosignota whloh of ilio plexus Improvamenla shall be oomstmcled
using Noxus sovanty five porcont (75%) altars Mile aallmated cost of Ilia tolal Noxus
lnnprovanlonls.
17, COMMBNC13MENT DATE
. Pur pnposcs of Lida Agreoncert iito teen "Canuneueomenl Rata" shall refor to the period
attar issuance of City enllllcments and steal I be deemed to be It data Islnaty (90) days aRoe ti1v
issuance ofonlitlamanis (o Nexus and Oonova Commons (wldoltaver comes later). 1110
Counnauceuwnt Daloshall be tolled should a valid rofarondom petition be presented ohallenging
either project, or Ilmoiy IEtigation be filed end served challonging any ofihe anllltomenls,, heludins
approvol pursuant to Ilio CAlifondn Bnvlromn0nla! Quality Ael,
18, INTEGRATION
Tlds Agraomaut integrates oil of ilia lens and conditions mentioned herein or inotdental horo(o,
and suporsedcs all magotialtolis or provlous saroomout between thopadlos Mill reaped to oil or
nay the mattara addressed herein. All wAlvers of the provisions of this Agreoment must be hi
Writing and signed by the Oppropdale authortti m of the parries, and all amamdmouls hereto tool
be in wiling and signed by Iho appropriate aulitorliles of the parties.
19, ASSIONMBNT
Noxus acrd Oenova L'onunane shall isave dm rJglrt io Irmnsfor or assign Itis Agreement, in
wholo, to any person, oullty (publie or p,ivAle), partnership, f ohtt venture, firm or corporation
who Is ilio owner Of the real property roforenccd in Iho 11001101 terata at any time during the ten
of this Agroomonll providOd, howover, the rights of Nexus or Geneva Commons undor tills
Agrcwnout mny not be iransforroo or assignod unless ilia weiiten consent of ilio City, Counell is
Erica( obtained mid any irmtsfor or assignment oflbe rights condor ibis Agreement shall lnolude h1
BX HIBIT P
Ofdlnnnao No. NS -2000 i 1
Page 40 of 61
Ute Chy grants written consent to (noiafar tho dghts, Not shut[ therights of Noma or Oonovn
Commons hareimdor be, subJoct to Assignment by mtoohmeut, exeoullon, or prooeedrngs under
Arty provision of the Bmtkruploy Act, ad any suoh msignmont or Iramsfer shall be wholly void
AM of no force and offeel unless such written consont themto be obtained from the City Corinoil,
Such frAnstbr or assigmnmt shall not roltavo Nexlts or Ctonevn Conunous of auy duty, obligodon
or [lability to City without the consent oft)to oily.
Baring tho term of this Agrocmeni, any approved nsslgnao or transferee of the
rJAIA under this Agrooment shall observe And porform all of the duties and obUgatlons of Noxm
or 0011ova Cornmona coinalned in iblaAgroemom m such duties and obligndans portain to tho
Nexus or Qeaeva Commons, Any And all approved sucomaors and noslgneos ofN•oxus or
(1611m oaounons shall have all of the snnro rights, benofils, duties, obitgatlons, and liabilities of
Maxus or panevn Conunous mrdor tUls Agracnrenl, rf thel'roperty la subdivided, flrgr subdivfdorl
parcel mny be, sold, fnorigaged, bypollaeealcd, assigned, or Irmrsforred topexsoas for
dovolopuront by them. Upon assignment or trAnsfer of the rights of Noxns or Oonava Commons
under this Agreomony fho obligo6ons of The assignor and the frnosforeo orflsatgneoshall be joint
and several.
1r1 WfTNGtSS WHT312YlOP, Gro pnrtiea hereto have exeatttod Ihis Agreement the data and
yeargist above weltleri.
SAND1101NT13N1 i(MOMOOD,
ASSOCUMN, fNC,
a. rR
v m
MUS D BVBL.OPMNT CORPORATION/
CLINMAT, DIVISION, INC
Py
Now
Ita
12 Otdlaanoe No, HS -2060
Nage di'of 61
Ilse City grants written aonsaat to Eransfor tha rights. Nor Anil thajIghts ofN4xus or 00110va
Commons hereunder bo anbjoot to assignment by atiaahmanl, oxcoutlon, or proceedings under
any provfslon of the Bnnknlploy Act, nrd ally suolr asstgnmant er Iratrsfarahnp bo wholly void
mid of ao force and offeel unless such wrlller consort thoralo ba obtaluod Rom tiro City Cowroll.
'Such transfer or ossignmont 811sll11ot rollevo Nexus or Nam Commons of my duty, obligation
orlinbf lily to City without the cnnsant of Iho Cily.
Dmhtg Iho form of 00a, Agromiont, any approved assignae or transforea ofllto
rights ond4r this Aprecnrew sball observo and perfomt all of the duties and obligatiats of Nax+rs
OV 0410a Commons contabled hr this Agr44manl as auoh dnlies and obligations porlaln Io lite
Noxus or rlonova Commons. Any and All opprovad successors and nasignoas ofN4xus or
Ooilua Commens shall have 411 of rho snmo rights, bono(f ts, dtitlas, obligalious, anti ilabllIllos of
Nexus or Gaaovn Commons under Ihls Agt'aement; If the Prepariy Is subdivided; any subdlyided
parcoi nmy ho said, mortghsed, hypodteonled, asslgueA, a• Iransforrcd to persons fbr
davelopmont by lhom. Upon nsslgnm4nt or Iransfer of the rights of Noxus or Clamn Commons
uudor tblsAgreament, Ilia obligations of tho nssipnor and tho Iransforco or assignoo shall bofoinl
and soveral.
IN WITNESS WIIEREOP, the patties hereto havo a llted this Agreornmtt Iho dalo Rud
Y80 11131 above WT1110n.
SANDPOINTB Nk1011130RHOOA,
ASSOCIATION, INC.
By —
Nante
Ila
NEXUS DAVEIAPMBNT CORPORATION/
CRITTRAI• DIVISION, INC.
BY
Nemo
Its
Ordinance No. NS•2000 12
ha0o d2 or m
ATTBST; COMMUNITY VMLOPWNT AOBNCY
OF TUB CITY OF SANTA ANA
13y --
Pnlrlotu B Nonfy Palrloln C, W]ittnker
Seorolary ofAgonoy Bxooullvo Motor
AP11ROVED AS TO 17ORM:
Josoph W. Fie ta I r
Agony Qonerol Counsel
)3XMITD
Ordlnonoe No, hIB-2680 14
P00944 of 61
13X RBIT A
01711 -SITE iMPRO MANTS
Hlook Wall
a. Mabr Shcet bahvooit Murphy & Sunflower, Ond house, 100219111101 W. Murphy
b. Norlhside ol'SrmflowsrbotwsonMain & alloy s((iaoonttolourplexos,exoludina
09011000 of well at OOmar ofMafn & Sunflower at rear of commoroW building
o. Plaslor and paint with olio color selected by Association
d,$3,000porhousopaymantfirrapn3r/rsplacamontaFlaudsoapingassooloiedwNh
WOR lmprovomonls npOn oxeontlon ofNoxm right -of enfry for constnwllon and
oxlOrion wall tllafnlonanoo oasomont. This psymont shall be mado by Noxus at the
limo filo Individual properly ewnor oxcoutos the otisircotfou oas6rncnl In favor of
Nexus and permanent matnlenanco ommont (for the oilmbing vines) In favor of
file City. For any "hold nuts" (as defined In paragraph 6,b, of this Agreement,
Nexus shall niako file $3,000 payment to Sesndpointo lu hust for each hold out.
o. Remove and replace 16 sections of white concrotoblook wall In Inunedlato area of
MaoArthur)3onlevard and 10lowor 8knot, and paint with ono color selected by
Association,
E Remove and roplao d sections of white concrete block wall along Weal Allen
Avenue aid pabt will' one color solcolod by Association
g. Noxus shall install olimbing vires, species ldo ttfied by the Clty, along the ont9r
edge, of tho wall, install Inigalon to feed sold climbing vines which shall be
conneo(ed and metered by Noxus al file nearest City water supply, and shall
remistruot the aldowalk to file Clly's speof (Sgatlous ager hnsiallatton of ll'o
Jrrigaffon lines and block wail,
h, Wall rOpla00montspecit0alions shall be established purettmrt topnragraph d of
this Agreement,
i. Nexus shall malnlatn, and replace, as necessary, file climbing vines drtdng a ninety
(90) day plant 9stabhsluctaui phase fbl lowlllg I101n uc, I,g,
2. Window Replacements
a. Nexus shelf provida$3,500oonstractlonallowatuoPer Italian for soundproof
window rophaentonis for up to 49 resldonflal units loeatc(l along Mali) Street and
Snnftowor Avenue, behind the oxiAlus concrete wall to bo roplaced, Tho 0
residontial uniis are Identified 111 Exhibit AA to thisAgroemenL
b. Noxus shatl assist Sandpolnto in oblalning/preparing 1100os0ary oonsiruofton btda,
doonmants andpermils,
o, Allowance will bo pall by Noxua to Smtdpoluto for any applicable home upon
rcc0(pt of bone flda consintol lon or material invoices,
d, Allowance shall expire 12 mnnfhs following IN completion of iho oonorewvall
13XHIBIT D
Whence Na, N8.2000
Nago 46 of 61
roplaooananl improvomotils,
o.Wladow spoolfloollons shall be estabJishod pursuant to paragraph 4 of this
Agraemow,
31 Tail Elementary Loading Zone
a. nexus $11411 constmot all hnprovomonta necossary to offenN* DORIllvo
Lasemonl Agroomont botween Saila Ana Uni fled Sohool Aistriot, Noxus turd
South Coast Churob.
b, hnprovomonts to loading sono shall lnahido driveway approachos,'tmfilo tones on
aho, striping, ohurolr building roamiIons,portableolas$room rolooatlone,
conputor lab on sohool and church proporllos, olo, as provided for In plans
inoluded as part ofAoilullk. Fmononl Agremrlontt
d. Pay City $200,00 for City to Implemont 4 Noighborhood Trolllo Management
Pine C NUO") to mtilgalo ohouges lu Irofilo paklorns or inoroased out Ilwongh
hatTfo rasulling ttom 1110NO%nl$ and Ocneva Commons Pro)eols In tho Sandpolnto
N01811borhood, NTMP cools shall Inahtdo Irafflo studios, stnfflhuo lopr000ss
neighborhood 1t41roplan, and the consltuoilon of opproprlato Irafflo aahning
dovioos, Inoludlug bol not IWANd to semi-divertcrs, dlai;ml divoaters, and street
olosuros. Tire Implonontallmr of thaNTMP shalt be pursuant to procedures
adopted by the City Counoll,
5, Nam shall pay Iho City the Rill cost (so )Xilbit 53) for IN lnstailalion of a
Traffic, Signal at tholutorsorden of MwArthurBoulovard and Wroh Simi,
pnllnn wttpd ymnrnva Iw
1 Utility Undorgrounding
a. Main SEreel—MacArtlmr to Suuflowor
b. MooArihur Main IoFlowor
o. Srmflowor—Main toFlower (norlitside ofalraot)
FXl11HIT A
00(nmcs No. N$-2080 Ifi
Nage 48 of 611
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42. $01 W. Svnnou,a
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46.3620 A8, Mvib
10.1$32 0 $, bf+din
49.1532 C 8, &WA
MINDIT A_1
hist ot'49 Residential ilddfs
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Yrndaw plaummA'
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17
Oldham No. NS -2660
. Pago 47 of 61
)IXHIBPr 13
SCHBAUI,13 QFNRXUS IMPROVBMBNTS
Constmollon of Item No, Ito Rxi lbil A shat) conform to the Ibllowing sohodulot
A. Prolimblary ShoPlans m 1)110 MI IflOdy (30) days of iho Commencoment Data.
c. 'Final Plans -•Due within sixty (60) days of City approval ofprolhninarySite
- Plane, togolhorWilli pro,pposaditighbOf•BnhyandMntnlenmtceRnsomonlfor
rovlow of City and Sandllohdo.
d. Hulloing Peralta, Consh'nollon RIg11hCP-811try (Infivor of Nous), and
Permanent Maintenance Rasomont for Rxlerlor of Wall (in favor 9ecity) •-
Appllcatlon, right o£entdes acrd oasomcals shall be subndtted ne talo than sixty
(60) days atter Clty approval of Final ]clans,
o. ConetruolfenConunencomont-•WilAlathirty(30)daysaforapprovalofButlding
Pormits.
f Conatnwllon Complete-Widdn onohmrdred twenty (120) days of
commenoomont of comirt ollon,
g. NlaoLy(00)dayplantostabflstone11F110soafteroomplationofoonsirrloNonof
oilrebing vinos and litigation,
2. Constniollon of Itom No. 2 to Bxldhit A 811a1l conform to the following sohcdule;
Final building permit plans shall besubuillled by indivldual Sandpointo
honleowllors to City no later than consinwllon complolodnte for ltum no. 1, .
Above,
b. Couslrnotton shat) bo oompleto pllrsuanl within ono hundrod hvonly (120) days of
ksuanco of City Building Pounit,
3. Cellahllellort ofI an No. 3 to Exhibit A shall conform to the following schedule:
Nexus shall submit oxeouted Uofinitiva Rasomont Agreement to all pulloa no
later than one hundred eighty (180) days of lho Commonoomont foto. 1'fNexua
fails to moot this deadline, NOW may boexiondod hr ivriling by Noxus and
Sandpninte, then Nexus shall deposit Sl .2 niilfloli from Iho Noxus llsarow into it
separate escrow with lerms providing fbr ha withdrawal by Sandpointo, ivhtoli are
nnllually agraoablo to atl pontos, for use by sondpohnlo on other proJuots to
bene(It tho Sondpointo nelghborhaod,
b, Nexus shall compfato lids atom not later than olghtson (18) monthn ftom (ho
137CE11jbIT ll
Ordinance No, NS -2080
Page 48 of 61.
Colnuneueontem Date,
A. Nexus 01,01€ pay City for Item no. d tot OM( A not later than approval orlho first Anet
map Por OteNexns ProJecl. Tho City shall follow the Noighborhood Traffio Management
Plan Polley adopted by the City Coulloll.
5. Constmailon of riem No. 5 to Exhibit A shalt oontbrm to tho following sohadulo:
a. Tltc City 0110) l provide Nexus with n prelhntnary asthnalo of psis Cost �vitidn 11drty
(M) days of tlto Conuuansomonl W10, This prolhnhtury osilmalo shall bo npd0ted,
if necessary, upon rite 4`I[y's rcoeipl ofNcxns appllcalEol] to final tu>,v poHiat of I!s
tenialivo Not map, $ald astlmato shall be contusive.
b. Nexus shall pay the City tiro eslhnated cost of Ibis ilotn 1101 later than approval of
the first final map for the NOXIIS Project.
The City shall 00ntpl0lo 0onslruollon or this atom prior to the first corlltioole of
coonpMoy for the Nexus project
Any deadline pursuant to this 9XII I C May be oxlonded by nmtnal written agreement afNexue
AM 1110 CityManoger or designee.
13XH1BITD
19
Ordhtaaao No. N19•2e80
Popo 49 of 61
EXHIBIT C
SCHWULB FOR PUBLICLY•OWNRA IMPROVa3MBNTS
City shell complete Item no. La. on 8xhlbll A of Pubiioly-Ow,ted Tmprovemenls not inter
Ihnnlun62005,
2, City Shall complete Item ne,1.b.on1301bitAofPublLely-OwuodImprovements not later
than live (5) years attar the Agency provides City with Ilse then estimated cost ofthe
projeot
3, City 81,011 oomplele.item no. La ou Uhlbil A of Publioly-Owned Lnprovemonls not later
than five ($) ycats After the Agency provides City with the thou oslhnatcd east of the
projeol,
Noiwithstandbtg this sohedule, City shalt mako a reesonablo good 1'dtltaffott to ofrotuato the
comptatlon OflhosoNblialy-Owned Lnprovemonls (Miloh,undereurrent law. must be designed
and comstrueted by Soulharn California Ildison raid not tho CI(y) prior to Ilia dales speoliial above,
Rx"IBIT O
Ordinanco No. N9.2t180 ��
Pago60of61 -
EXHIBIT "E"
Remaining Offsite Mitigation Measures
The Met at South Coast Public Improvements
Improvement
New sidewalk
New driveway ("pad'style)
Dedication for 25'x 25' comer cut-off
Sidewalk easement
Street dedication
4" depressed curb
Triple -left traffic mitigation measure,
including sign bridge, signal modification,
updated detection, and signing and striping
on both streets
Pavement Rehabilitation (minimum 2"
grind and overlay)
Installation of new public fire hydrants
Location
Property frontage on First American Way
First American Way
NIE comer of MacArthur & Imperial
Promenade
10' along property frontage of MacArthur Blvd,
60' from street centerline along MacArthur
Blvd.
Emergency access on MacArthur Blvd,
Southbound Imperial Promenade at MacArthur
Blvd
On Imperial Promenade and First American
Way along property frontage from curb to street
centerline
Along MacArthur Blvd, and First American
Way