HomeMy WebLinkAboutNS-2031 - Rezoning Certain Property Located on the East Side of the Santa Ana Freeway Between First and Fourth Streets from the P (Professional) District ...REL:mb(3)
12/2/87
Rev. 4/14/89
Rev. 9/26/89
23/
ORDINANCE NO. NS-2031
AN ORDINANCE OF THE CITY OF SANTA ANA REZONING
CERTAIN PROPERTY LOCATED ON THE EAST SIDE OF THE
SANTA ANA FREEWAY BETWEEN FIRST AND FOURTH
STREETS FROM THE P (PROFESSIONAL) DISTRICT TO
THE SD (SPECIFIC DEVELOPMENT) DISTRICT, ADOPTING
SPECIFIC DEVELOPMENT PLAN NO. 54 FOR SAID PROPERTY,
AND APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF SANTA ANA AND BIRTCHER XEROX PARTNERS PER-
TAINING TO SAID PROPERTY.
WHEREAS, Amendment Application No. 1031 has been
filed with the City of Santa Ana to change the zoning dis-
trict designation of certain real property located generally
on the east side of the Santa Ana Freeway between First and
Fourth Streets in the City of Santa Ana, and more specifically
delineated in Exhibit A, attached hereto and incorporated
herein by reference, from the P (Professional) District to the
SD (Specific Development) district, and to adopt a Specific
Development Plan No. 54, in the form set forth in Exhibit B,
attached hereto and incorporated herein by reference, for
said property; and
WHEREAS, the applicant Birtcher Xerox Partners pro-
poses to develop said property in accordance with Specific
Development Plan No. 54 and in this regard has requested to
enter into a Development Agreement in the form set forth in
Exhibit C, attached hereto and incorporated herein, with the
City of Santa Ana, in accordance with sections 65864-65869.5
of the Government Code of the State of California; and
WHEREAS, the Planning Commission of the City of Santa
Ana held a duly noticed public hearing on August 14, 1989,
on the said Amendment Application, Specific Development Plan,
and the Development Agreement, and, based thereon, determined
that the development as proposed therein is consistent with
the general plan of the City of Santa Ana, and recommended
that the City Council approve the Amendment Application, Specific
Development Plan No. 54, and the Development Agreement; and
WHEREAS, prior to taking action on this ordinance,
the City Council of the City of Santa Ana has reviewed and
232
ORDINANCE NO. NS-2031
PAGE TWO
considered the information contained in that certain "Xerox
Centre Environmental Impact Report" pertaining to the develop-
ment of the abovesaid property in accordance with Specific
Development Plan No. 54 and the Development Agreement, and,
by its Resolution No. 89-100, has certified said environmental
impact report as having been prepared in accordance with the
California Environmental Quality Act and has adopted environ-
mental findings regarding the Xerox Centre project; and
WHEREAS, this Council, prior to taking action on
this ordinance, has held a duly noticed public hearing, on
the said Amendment Application, Specific Development Plan
No. 54, and Development Agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
SANTA ANA DOES ORDAIN AS FOLLOWS:
1. The SD (Specific Development) district desig-
nation and Specific Development Plan No. 54, as proposed in
Amendment Application No. 1031, and the Development Agreement
are hereby found and determined to be consistent with the
general plan of the City of Santa Ana and otherwise justified
by the public necessity, convenience and general welfare;
2. Those parcels of real property located generally
on the east side of the Santa Ana Freeway between First and
Fourth Streets and more specifically delineated in Exhibit A,
attached hereto and incorporated herein, are hereby reclassified
from the P (Professional) District to the SD (Specific Develop-
ment) district.
3. Specific Development Plan No. 54, set forth in
Exhibit B, attached hereto and incorporated herein, is hereby
approved and adopted for the abovesaid property.
4. That certain Development Agreement between
the City of Santa Ana and Birtcher Xerox Partners, in the
form set forth in Exhibit C, attached hereto and incorporated
herein, is hereby approved, and the Mayor is authorized to
execute said Agreement on behalf of the City of Santa Ana
following its execution by Birtcher Xerox Partners, and the
Clerk of the Council to attest to the same.
5. The Clerk of the Council is directed to cause
a copy of the said Development Agreement to be recorded in
the official records of Orange County, California, within
ORDINANCE NO. NS-2031
PAGE THREE
ten days following its effective date. As use herein "effec-
tive date" means the date thirty days after the date of this
ordinance.
ADOPTED this 6th day of November , 1989.
ATTEST:
Mayor
~a~ice C. Guy
Clerk of the Counc~il /
COUNCI LMEMBERS:
Young
Acosta ^ye
Griset
May A.¥e
McGuigan
Norton Aye
Pulido Aye
APPROVED AS TO FORM:
E
dward J. Cooper
City Attorney
235
SEVENTEENTH
FIRST ST,
ST.
City Of
Tusfifl
GENERAL PLAN AMENDMENT NO. 89-7
SPECIFIC DEVELOPMENT PLAN NO. 54
VESTING TENTATIVE PARCEL MAP NO. 88-102
EXHIBIT A,
EXHIBIT
XEROX CENTRE
SPECIFIC DEVELOPMENT PLAN
.o.
CITY OF SANTA ANA
June 8, 1989
Prepared
for
BIRTCHER XEROX PARTNERS
27611 La Paz Road
Laguna Nlguel, California 92677-1078
by
STROCK ARCHITECTS, INC.
3300 Irvlne Avenue
Newport Beach, California 92660
TABLE OF CONTENTS
Preamble
Introduction
Definitions
Development Criteria
-/
Site Plan Approval and Modification Procedures
Exhiblte
~3
239
PREAMBLE
This Specific Development (SD) Plan establishes development standards and constraints for future
phases of Xerox Centre, a multi-phase, mixed-use commemlal development now In the first phase
of construction on a 10.6 acre site bounded by I-5, First Street, Fourth Street, and the future
extension of Cabrlllo Park Drive. The development resulting from the implementation of this text
and Its accompanying masterplan will realize the joint asplretlons of the development partnership
and the City to create a project of the very highest quality: Xerox Centre In all Its aspects -
architecture, landsceplng, and public amenities and services - will establish an appropriate
benchmark for Santa Ana's urban renaissance.
Page 3
._ 240
INTRODUCTION
Specific Development Plans are authorized by the Santa Ana Municipal Code (Chapter 41, Division
46, Sections 41-593 et seq.) which, In Its entirety, shall govern the development of the plan unless
any of Its specific provialons are waived or superseded by this ordinance.
In all cases the standards and regulations contained herein shall promote and protect the health,
~afety, and general welfare of the cItizens of the City of Santa Ana. The application of this
document shall also be made In the Interests of the enhancement of property values and a logical,
orderly sequence of development.
Specifically, this plan determines development criteria for the following:
1. Denslty
2. Phasing
3. Permitted Uses
4. Building Height
5. Setbacks
6. SIte Coverage
7. Parking
8. Loading
9. Trash
10. Landscaping ,
1 t. Signing
12. Ughtlng
13. Public TransIt
In addition, development of Xerox Centre will be subject to the companion development
agreement by site plan review, by the review and issuance of building and associated
permits, and by the General Plan of the City. Development shall be consistent with the
conceptual plan attached hereto as Exhibit A.
Page4
As a significant addition to the urban 'fabric' of the City of Santa Aha, Xerox Centre will
realize the following:
1. The existing built commercial environment.
2. The enhancement of the employment base of the City of Santa Ana.
3. The architectural Indentlty of the City.
4. A mixture of land uses conveniently located in an attempt to reduce traffic for
both Xerox Centre and the surrounding area.
5. Opportunities for the display and enjoyment of various forms of art.
6. A traffic management program supportive of the City's goal of improved
traffic circulation on sur;ace streets.
Page 5
242
DEFINITIONS
The foitowlng definitions shall supersede and/or supplement those defined by city
ordinance.
Cultural Amenltlee: interior and exterior spaces and facilities utilized for the displaY and/or
performance of vlsust, historic, musical, and theatrical arts; and for the presentation of
zoological exhtblta.
EIR: Environmental Impact Report for Xerox Centre.
Free Access: Unrestricted access, open to the public, to alt "open air' areas of the site.
Floor Area: The total Inhabitable fioor area as measured within the perimeter walls of a
building or structure (comparable to BOMA full fioor rentable area).
Gross Site Area: The total area of the project site, Including Phase I, and site area
dedicated to public rlght~of-way.
Hardscepe: Paved surfaces within and adjacent to landscape areas dedicated to
pedestrian use.
Masterp~an: A graphic exhibit or 'map' defining, In concept, Xerox Centre at completion of
all construction. Building types, sizes and locations; landscape and hardscape areas;
points of site access, and truck circulation and loading areas are depicted.
Public Amenities: Including but not limited to seating, architectural walkways, retail
services, fountalns, art In various forms, food sen, ices, landscaping, and public gathering
places.
Site Coverage: The percentage of the gross alta area occupied, or covered, by structure
(office towers, retail, restaurant(s), parking structure(s)).
Site Plan Review:. A review of specific plans applicable to each phase of the project. This
review, and subsequent comment and approval, are administered by the Planning and
Building Agency of the City of Santa Ana.
Page 6
,243
DEVELOPMENT CRITERIA
The following densities shell represent maximum allowable areas. There shall be no
minimums. Any future Increases In these densities may be approved by the city subject to
the cartlflcatlon of subsequent or supplemental environmental Impact reports.
1. 1,100,000 square feet of office space.
2. 50,000 square feet of support rstail/commerclal/restaurent space.
3. Parking structures are not to be Included In the calculation of density.
PHASING
The development of the future phases of Xerox Centre will require certain mitigations and
Improvements to the off-site Infrastructure. Such Improvements are detailed In the EIR.
Each successive phase of development must be accompanied by those on and off-site
Improvements specified In the EIR.
AJthough the accompanying Master Plan (Exhibit A) Implies a sequence of phasing, the
developer retains the fight to modify the sequence In response to changing market
conditions, glven only that the requlrernents for mitigation and Infrastructure Improvements
shall remain In full force for each phase.
Professional and Business Offices
1. General offices providing personal and professional sendcas Including,
without limit, employment agencies; medical, financial, Insurance, real estate,
and travel services; trade contractors, architects, engineers, and other similar
uses.
Support Commercial/Retail Uses
1. Restaurant and related food and beverage servlca facilities. One such use
may occupy a freestanding structure on a separate, legal land parcel.
2. Retail/commercial uses Including, but not limited to, stationers, travel
services, copy canters, bookstores, news stands, berber shops and hair
salons, auto detailers, florists, retail banking and other similar uses.
Page 7
244
Conditional Use Permits shall not be required for any e~abllshment which serves alcoholic
beverages for o~-slte consumption, provided that a Land Use Certificate has been
approved and granted bythe City of Santa Ana.
Accessory Uses
Uses Incidental to any permitted use will be allowed,
development standards,
subject only to applicable
No structure shall exceed 350 feat In height, as measured from adjacent finished grade.
Flag polea and such Incidental appurtenances as aircraft warning lights and beacons may
exceed this height limE.
Setbacks shall be measured from the ultimate right-of-way lines of adjoining public streets.
There shall be no setbacks required from Internal lot lines, nor, In accordance with city
ordinance, shall such Internal lot lines compromise the Interconnecflon and freedom of
movement betwean adjoining structures.
1. First Streat: fiftean (15) feat
2. Cabrlllo Park Drive: fiftean (15) feet
3. Fourth Street: fifteen (15) feet
4. Interstate 5: zero (0) feet
At bulldout, site coverage shall not exceed 65% of gross site area. Individual parcels shall
not be limited In site coverage.
Page 8
245
pp, RKING
1.
Parking adequate to serve the needs of Xerox Centre shall be provided
on-site In structures. Such parking shall be safe, convenient, and accessible.
The design of parking structures shstl be complementary to the balance of
the project.
Parking areas shall be commonly accessible to the tenants of Xerox Centre.
Appropriate cross easements and/or parking agreements guaranteeing free
access shall be recorded, with the approval of the City of Santa Aha.
A~I parking shall be designed and constructed In accordance with the existing
applicable standards of the City of Santa Ana, as of the date of adoption of
this plan.
Master on-site parking plan: The attached Master Plan (Exhibit A) shall serve
as the master on-site parking plan. Detailed parking plans for specific phases
shall be subject to Site Plan Review.
Parking Required: Each phase shall be serf-sufficient In numbers of parking
spaces provided. The following baseline standards shall be used to
detarmlne the minimum parking count for each use.
a. Office: One (1) space for each 333 1/3 square feat of floor area.
Restaurant: One (1) space for each two employees and one space for
each 35 square feet of dining and drinking area.
c. Retail: Five (5) spaces par 1000 square feet.
The required number of off-street spaces may be reduced
commensurate with the specific type of use and demonstrated hourly
parking demand upon approval by the Planning Department In
accordance with the provisions of Sections 41-632 and 41-638 of the
Santa Ana Municipal Code.
Due to normal commercial office hour opamtlon, adequate evening parking
will be available to all non-office uses.
Areas for the occeslor~al loading and unloading of large trucks will be provided in
accordance with the Master Plan. Such areas shall be located end amhitecturstly treated
so as to maintain the high deslgn standards of Xerox Centre. Small detive;y vehicles will
be accommodated within the parking structures, concealed from public view and
convenient to the areas and uses served.
Page9
TRASH
Ail trash and refuse shall be collected, compacted, and stored Internally. Refuse will be
picked up at truck loading areas In accordance with the City's vendor's schedule. Pick up
times shell he scheduled so as to avoid a.m. and p.m. peak traffic hours.
The open space of Xerox Centre shell be landscaped with a mix of plant material,
architectural herdscape, and landscape fumlturs so as to reinforce the high quality of the
project's design. The Xerox Centre Master Plan shall form the concel~ual, thematic basis
for the balance of the development.
Specifically, the landscaping shall meet the following criteria.
1. Ail planted areas shall be served by an automatic IrrigatiOn system.
2. The existing streeffront landscaping palatte, as established by the City, shall
be maintained and reinforced.
3. Plant material shall be of a size and type compatible with and supportive of
the project's design concept.
4. Hardscape areas shall be finished to a level of high quality, and shall be
chosen with an eye to both durability and compatibility with the project's
architecture.
Plantings and landscape walls shall be used to screen utility equipment such
as meters, backflow preventers, and detector checks. Such cosmetic
devices shell also be used to screen loading areas.
o
Planting and hardscapa areas In the various phases shall be coordinated so
as to develop a unified theme, while at the earne time providin,g the user a
Variety of outdoor experiences.
Landscepa furniture (benches, trash receptacles, etc.) shell be chosen and
elted so as to encourage the use of the project's open space.
All new iandscapa and hardscape areas shall be maintained to a high level of
quality at all times. ·
Specific landscape plans for each phase will be submitted to the Planning Department of
the City as part of the Site Plan Review process.
Page 10
247
NI algnlng for Xerox Centre, except as noted below, shall be designed and Installed In
accordance with applicable city ordinance In effect at the time of approval of this plan.
This fact, notwithstanding all signing, will be of a consistent design and shall support the
overall archltactural concept of Xerox Centre.
The following sign type, designated as the 'Project Freeway Identification Sign', shall be
permitted. This sign will be located at the westerly edge of Xerox Centre, adjacent to
Interstate 5, and will serve to identify the project and Its major tenants. The specific nature
of this sign - Its size, means of Illumination, and nature of movement and color - is defined
In Exhibit B (attached).
The Project Freeway Identification Sign must meet all applicable city standards for
construction and maintenance.
'Eyebrow' signing, as defined by city ordinance, may be used to identify significant
building tenants. The location of such tenant(s) within the building(s) shall not be
determinant of eligibility for such signing.
All signing shall be maintained In an 'as new' condition at all times.
All areas of Xerox Centre shall be lit In an archltectureliy appropriate manner, and all such
lighting shall be Cupporttve of the personal safety of the project's tenants and visitors.
Lighting designs for each phase of development shall be reviewed end approved by the
Police Department of the City of Santa Ana.
The master plan for Xerox centre Incorporates a bus stop on the south side of Fourth
Street, west of The cebrillo Park Drive Intersection. This stop will provide weather
protection for waiting passengers, and Is sized and located to serve the surrounding
community as well as the tenants of Xerox Centre. The bus stop Is supported by a
dedicated bus lane so as to preclude the disruption of Fourth Street traffic.
Page 11
SITE PLAN APPROVAL AND MODIFICATION PROCEDURES
~QNCEPTUAL PLAN APPROVAL
The City hereby approves that certain Conceptual Site Plan for Xerox Centre prepared by
Strock Architects, Inc., dated May , 1989 (hereinafter the 'Conceptual Plan').
Notwithstanding the foregoing, no building permit shall be Issued In connection with any
Phase until further plans have been submitted to and approved II r
by the City for such Phase pursuant to the procedures set forth In Sections 41-668 through
41-674 of the Santa Ana Municipal Code, satisfying the following ~anda~s:
1. The plans for the Phase shall provide for adequate vehicular and pedestrian
access end clmulatlon and vehicular perking.
2. The plans for the Phase shall provide for adequate access for City emergency
and service vehicles and equipment.
3. The plans for the Phase shall provide for adequate utility services.
4. The plans for the Phase shall comply with all applicable standards and
regulations.
Any conditions Imposed by the City In conjunction with such plan approval shall be
reasonably related to the purpose of achieving compliance with the foregoing standards.
MODIFICATION TO SITE PLAN
Approval(s) of non-material amendments or modifications to the Conceptual Plan or any
final Plans approved by the City may be made by the City of Santa Ana Directors of Public
Works and Planning. The Owner shall have the right to appeal any adverse decision, first
to the Planning Commission and then, If necessary, to the City Council. A 'non-material'
change shell be deemed to consist of any change, modlflcetlon or amendment to the
Conceptual Plan wfllch does not require a supplemental environmental Impact report
under the requirements of the California Environmental Quality Act.
Page 12
Fourth Street
249
Exh~it A
Xerox Centre Freeway Sign
The sign shall be clad In 12' x 12" granite
tiles to match existing building. Sign
copy shall be fabricated from stalnless
steel with polished faces and brushed
finished returns. 'Xerox Centre' logo
type shall be Internally illuminated to
create a halo lighting effect. The sign
shall Include a changeable
message center set Into the sign
structure, flush with the surface..The
sign shall be double faced and be placed
on the site perpendicular to the freeway.
ELEVATION
Exhibit B
~' ' 9D"006603 9 50. I
DAL/103089/20
DDA-XER2
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
City Clerk
City of Santa Ana
Post Office Box 1988
Santa Ana, CA 92702
RECORO~D ,N OF,~C,AL
OF ORANGE COUNTY. CALIFORNIA
.2.~_9 PM JAN
EXEMPT
(Space Above This Line For Recorder's Use Only)
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF SANTA ANA
AND
BIRTCHER XEROX PARTNERS
FOR
XEROX CENTRE
"' 250',2
TABLE OF CONTENTS
Development Agreement by and Between
the City of Santa Ana and Birtcher Xerox Partners
for Xerox Centre
2
3
4
5
6
7
8.
9.
10
11
12
13
14
15
16.
17
18
19
20
21
22
Property and Phasing ..................................... 3
Term ................................................. . .... 3
Use of the Property ....................... 4
Development Standards .....................
Dedications of Land for Public Purposes...
Subdivision ...............................
Coordination with Caltrans ................
Utility Capacity ..........................
Mitigation Measures .......................
Costs of Mitigation Measures ..............
Timing For Performance of Developer's Obligations ......... 9
Subsequent Environmental Review .......................... 10
Vesting of Development Rights ............................ 11
Processing of Applications and Permits ................... 13
Periodic Review and Monitoring of Compliance
with Agreement ..................
Amendment and Modification ............
Events of Default .....................
Consequences of Default ...............
Binding Effect of Agreement ...........
Assignment ............................
Notices ...............................
General Provisions ..............
14
15
16
17
17
17
.. 18
.. 18
250,5
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF SANTA ANA AND BIRTCHER XEROX PARTNERS
FOR XEROX CENTRE
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as
of this llth day of November, 1989 by and between the CITY OF
SANTA ANA, a municipal corporation ("City") and BIRTCHER XEROX
PARTNERS, a California general partnership ("Developer").
RECITALS
This Agreement is entered into on the basis of the following
facts, understandings, and intentions of the parties:
A. California Government Code Sections 65864 et seq.
provide that the legislative Body of a City may enter into a
development agreement for the development of real property in
order to vest certain rights in the developer and to meet certain
public purposes of the local government. Pursuant to California
Government Code Section 65865, the City has adopted its
Resolution No. 82-98, establishing procedures and requirements
for the approval of development agreements. Developer has
applied to City pursuant to California Government Code Sections
65864-65869.5, and pursuant to said Resolution for approval of
the Development Agreement set forth herein.
B. The City desires to enter into this Development
Agreement with the Developer in order to facilitate the develop-
ment of certain property (the "Property") more fully described
and depicted in Exhibit "A" attached hereto. Such development is
to be in accordance with the Specific Development Plan No. 54
approved by the City pursuant to the City Ordinance by which this
Agreement is approved and on file with the City Clerk and
incorporated herein by reference (the "SD"), The City has given
notice of its intention to adopt this proposed Development Agree-
ment, has conducted public hearings thereon pursuant to
Government Code Section 65867, and City's Resolution No. 82-98
and has found that the provisions of this Development Agreement
and its purposes are consistent with the objectives, policies,
general land uses and programs specified in the City's General
Plan and the SD. Prior to or concurrently with the approval of
this Agreement, the City Council of the City has also approved
(a) a Final Environmental Impact Report (hereinafter "EIR") State
Clearing House Number 87090908 consisting of the Xerox Centre
Draft Environmental Impact Report and the Xerox Centre Response
to Comments and Final Environmental Impact Report (hereinafter
collectively "EIR"), (b) General Plan Amendment No. 89-007
pursuant to Resolution No. 89-101 (hereinafter the "General Plan
Amendment"), and (c) Vesting Tentative Map No. 88-102, designed
- 1 -
for multiple phased final maps (authorized pursuant to Government
Code Section 66456.1) (hereinafter the "Tentative Map").
C. The City has taken all steps necessary to achieve
compliance with the California Environmental Quality Act
including the circulation and adoption of the EIR. The City has
specifically incorporated mitigation measures recommended by the
EIR into the terms of this Agreement.
D. The development and use which Developer proposes in
connection with the Property have been extensively reviewed and
considered by the City and its officers, agencies and departments
and such proposed development and use have been modified to
accommodate the City's recommendations and suggestions in order
to protect the public's interest and to enhance the desirability,
from the public's perspective, of such proposed development and
use. The terms and conditions of this Agreement have been found
by the City to be fair, just and reasonable.
E. The development and use which Developer proposes in
connection with the Property will provide substantial public
benefits and help the City attain certain public objectives,
including, without limitation: (a) the development of a major
business center within the City which will provide a long-term
source of employment opportunities and revitalization of the
economic base of the community; (b) providing the City directly
with additional revenue in the form of sales taxes, rental taxes,
and increased real property taxes; (c) prov{ding retail and
service facilities for the business community in the area of the
real property; (d) providing for the dedication and improvement
of Cabrillo Park Drive connecting First Street through to 17th
Street in conformance to the City's master plan; (e) the widening
and improvement of drainage of public streets at First Street and
Cabrillo Park Drive; and (f) the improvement of access to
Interstate 5 from First and Fourth Streets.
F. Developer will be required to make substantial commit-
ments and risks in developing the real property including,
without limitation, dedication of real property, expenditures for
construction of public improvements and expenditures for
necessary predevelopment planning, engineering and design work
and accordingly, Developer has requested the City to enter into
this Agreement. If the City were to halt any part of the
development at any time or if Developer were required to comply
with some or all newly adopted land use ordinances, rules,
regulations, policies, or moratoriums, Developer would incur
substantial losses, including, without limitation, the dimunition
in the value of the real property and loss of anticipated
revenues from the development of the real property. Due to the
- 2 -
250,
magnitude of those development risks and uncertainties, Developer
would not have agreed to commit itself to the development, unless
the City had entered into this Agreement.
G. The City, by electing to enter into contractual agree-
ments such as this one, acknowledges that the obligations of the
City shall survive beyond the term or terms of the present City
Council members, that such action will serve to bind the City and
future councils to the obligations hereby undertaken and this
Agreement shall limit the future exercise of certain governmental
and proprietary powers of the City. By approving this Agreement,
the City Council has elected to exercise certain governmental
powers at the time of its entering into this Agreement rather
than deferring its actions to some undetermined future date.
Accordingly, the City and Developer desire to enter into this
Agreement in order to vest in Developer certain development
rights pursuant to the terms of this Agreement. Such development
rights are intended to allow for the development of the real
property in accordance with the terms of this Agreement pursuant
to the land use ordinances, rules, regulations and policies
applicable as of the Effective Date, except as otherwise
specified in this Agreement.
WHEREFORE, in consideration of the foregoing and of their
mutual and respective promises, and subject to the terms and
conditions hereinafter set forth, the parties hereto do hereby
agree as follows:
1. Property and Phasing. Developer and the City agree
that the Property may be developed in one or more phases. The
purpose of this Agreement is to form a binding agreement for the
development of all such phases of the Property. For the purpose
of this Agreement, "Phase I" shall mean the existing development
dePicted as Parcel 1 on Exhibit "B", attached hereto and incor-
porated herein. It is currently anticipated that the Property
will be developed in three (3) subsequent phases, sometimes
hereinafter referred to as "Phase II", as depicted on Exhibit
"B" as Parcel 2, "Phase III", as depicted on Exhibit "B" as
Parcel 3 and "Phase IV" as depicted on Exhibit "B" as Parcel 4.
Developer, however, reserves the right to develop the Property in
any number of phases, including without limitation, the ability
to separately construct as separate phases, retail or restaurant
improvements. The phrase "Project(s)" as used herein, shall be
deemed to refer to any or all Phases of development.
2. Term. The term of this Agreement (hereinafter "Term")
shall commence on the Effective Date of this Agreement, as set
forth above, and shall continue for a period of fifteen (15)
years from such date, unless sooner terminated pursuant to the
provisions hereof.
- 3 -
250.&
3. Use of the Property. Developer agrees that the
permitted and conditional uses of the Property shall be as
specified in the SD. City agrees to allow such uses on the
Property, subject to the right of the City to take appropriate
action to abate any public nuisance and to enforce all laws
designed for the protection of the public health and safety.
4. Development Standards. City agrees to allow
development of the site in accordance with the development
standards set forth in the SD including, without limitation, the
provisions relating to the density and intensity of use and the
maximum height andsize of proposed buildings. ~.
5. Dedications of Land for Public Purposes. Developer has
dedicated to the City certain real property owned by Developer in
connection with the development of Phase I. Developer will also
be dedicating an easement for street purposes over a portion of
real property owned by Developer adjacent to Fourth Street as set
forth in the Tentative Map. It is understood and agreed that no
other reservations or dedications of real property will be
required by the City during the Term with respect to the
Project(s) except for easements necessary for City maintenance of
traffic signals and similar public street appurtenances.
6. Subdivision. The term of the Tentative Map or any
resubdivision or amendment of the Tentative Map, including any
lot line adjustment or merger of lots within the Tentative Map
(or any other tentative map filed subsequent to the Effective
Date of this Agreement as defined hereinbelow relating to the
Project[s]) shall automatically be extended for the Term of this
Agreement as permitted by Government Code Section 66452.6(a).
The City agrees, upon application by Developer, to allow for the
modification of the boundary lines between Phase I and Phase II,
Phase II and Phase III, Phase III and Phase IV, or between any
Phase and Parcel 5 depicted on Exhibit "B". The City agrees not
to impose any new or additional requirement or condition upon any
such subdivision or lot line adjustment other than those imposed
upon the Tentative Map.
7. Coordination with Caltrans. The City and Developer
each agree to use their best efforts to coordinate with Caltrans
to facilitate the planned widening of the Interstate 5 Freeway.
Developer agrees not to develop the portion of the Property
designated as Parcel 5 on Exhibit "B" ("Offramp Site") so as to
leave such real property available for condemnation by
Caltrans. Caltrans' current plans provide for the widening of
First Street at the Santa Aha Freeway. Upon completion of such
work by Caltrans, the City agrees to permit Developer to
construct a right turn only vehicular ingress and egress lane
from the parking structure constructed on Phase I onto First
Street. Developer agrees to install such lane at its sole cost
and expense in accordance with City standards including, without
limitation, providing a diversion restricting left turns from
250,7
such lane. Nothing herein is intended to limit Developer's right
to receive full and fair compensation for any right-of-way or
other taking by Caltrans of the Offramp Site nor to the limit the
highest and best use of the Offramp Site for the purpose of
determining the value of the site.
8. Utility Capacity. It is hereby agreed that the City
will not undertake any action or fail to perform any action which
would impair or restrict the availability of storm drain
capacity, sanitary sewer capacity, water capacity, or cable
services sufficient to service the Project(s).
9. Mitigation Measures.
(a) City's Obligations.
The City agrees to use its best efforts to
construct or cause to be constructed all public
improvements listed in the Traffic Study portion of the
draft EIR on pages 3-63 through 3-68, as modified which
are required by the EIR to be completed as "fair share"
cumulative mitigation measures, "Areawide and
Cumulative Roadway Improvements" or "Caltrans
Improvement Program." In furtherance of this
obligation, the City agrees to use its best efforts to
enter into a joint exercise of powers agreement with
the City of Tustin to provide for the implementation
and the funding mechanisms for all .'such improvements.
In the event the City is unable to reach such an
agreement with the City of Tustin, the City shall
nevertheless be responsible for the implementation and
funding for all such improvements. In any event, the
failure of the City, Caltrans, the City of Tustin or
any third party to complete any of the public
improvements set forth above shall not impact or in any
manner restrict Developer's right to complete the
Project(s) as provided in this Agreement. In the event
such public improvements are not completed, the City
may not withhold or delay any permits or approvals,
including, without limitation, building permits or
Certificates of Occupancy, so long as the Developer has
otherwise satisfied its obligations under this
Agreement as they relate to the particular Phase for
which permits or approvals are being sought.
(b) Developer's Obligations.
(1) Cabrillo Park Drive. The Developer agrees
that it will cause to be prepared and submitted to the
City for approval plans and specifications for street
improvements to complete Cabrillo Park Drive between
First and Fourth Streets adjacent to Phase II, Phase
III and Phase IV substantially in accordance with those
- 5 -
250.
certain preliminary street improvement plans for
Cabrillo Park Drive Phases II and III prepared by
Greiner Engineering, Inc. If required, such plans and
specifications shall also include the design of sewer
and storm drain lines to be located within Cabrillo
Park Drive between First and Fourth Streets. The
improvement to be completed pursuant to the street
improvement plans described above and the sewer and
storm drain plans, if applicable, are hereinafter
collectively referred to as the "Cabrillo Park Drive
Improvements." Subject to the approval of such plans
and specifications by the City and the acquisition of
all necessary rights-of-way by the City at Birtcher's
cost, the Developer agrees to commence construction of
the Cabrillo Park Drive Improvements on or before the
date twelve (12) months from the Effective Date of this
Agreement and diligently process such construction to
completion. In any event, subject to the approval of
such plans and specifications and the acquisition of
all necessary rights-of-way at Birtcher's cost, the
Cabrillo Park Drive Improvements shall be completed on
or before the date that the Developer is ready for the
issuance of a Certificate of Occupancy or other
equivalent approval-for the first building constructed
on the Property after the Effective Date of this
Agreement. The City agrees, upon request of the
Developer, to cooperate with the Developer to obtain a
Cabrillo Park Drive mailing and street address for all
Phases of the Project.
(2) First Street and Grand Avenue The Developer
agrees that, prior to October 1990, it will cause to be
prepared and submitted to the City for approval plans
and specifications for the widening of the east side of
Grand Avenue between First and Fourth Streets and a
westbound right-turn lane at the intersection of First
Street and Grand Avenue (hereinafter "First and Grand
Improvements").
(3) Other Traffic-Related Public Improvements.
The Developer agrees to construct or cause to be
constructed all public improvements listed in the
Traffic Study portion of the EIR on pages 3-63 as items
5 and 6 for Phase II, and items 8 and 9 for Phase III
and to widen Fourth Street adjacent to the Property in
accordance with the dedication specified in Section 5
of this Agreement. All such public improvements shall
be completed prior to or upon issuance of a Certificate
of Occupancy for the first building constructed on the
Property after the Effective Date of this Agreement,
except that items 8 and 9, referenced above, need not
be completed until the completion of the Phase III
building. If the traffic signal referenced in item 9
- 6 -
250. q
is needed, Developer shall install said traffic signal
at Developer's expense.
(4) Transportation Demand Management
Program. The Developer agrees to comply with the
Transportation Demand Management Program as set forth
in the draft EIR, as modified in the Response to
Comments portion of the EIR.
(5) Non-Traffic Mitigation Measures. The
Developer agrees to comply with the non-traffic
mitigation measures, of Developer as set forth in the
draft EIR, as modified in the Response to Comments
portion of the EIR.
10. Costs of Mitigation Measures.
(a) City's Obligations.
Except as expressly provided below, the Developer
shall not be obligated to pay the cost for any public
improvements required to be designed and constructed by
the City as set forth above in Section 9(a). The cost
of all such public improvements shall be the sole
responsibility of the City or other applicable party.
(b) Developer's Obligations.
(1) Monorail Study. The Developer agrees to
contribute Fifty Thousand and No/100 Dollars
($50,000.00) towards the study of a monorail system for
the City within forty-five (45) days after demand by
the City. The obligation to make such contribution
shall be subject to the requirement that the City
initiate such a study and provide or obtain the balance
of the funding necessary for such a study.
(2) Cabrillo Park Drive. The Developer shall be
obligated to bear all costs and expenses in connection
with the acquisition, design and construction of
Cabrillo Park Drive between First and Fourth Streets
including the portions previously constructed as well
as portions required to be constructed pursuant to the
terms of this Agreement. The City and Developer have
established a benchmark for the total cost to acquire,
design and construct the Cabrillo Park Drive
Improvements so as to extend Cabrillo Park Drive to
Fourth Street of One Million Five Hundred Seventy-Five
Thousand and No/100 Dollars ($1,575,000.00). This
benchmark includes the cost of acquisition of the
remaining right-of-way not previously dedicated and the
design and construction costs for the Cabrillo Park
Drive Improvements as defined in Section 9(b)(1) which
includes the street improvements to complete Cabrillo
Park Drive between First and Fourth Streets adjacent to
'250. w
Phase II, Phase III and Phase IV of the Project. The
benchmark does not include the complete cost of the
sewer line. To the extent the Developer is actually
able to acquire, design and construct the Cabrillo Park
Drive Improvements for less than the benchmark amount,
the Developer agrees that its contributions toward the
First and Grand Improvements as required below shall be
increased by such amount. Similarly, to the extent
Developer's total costs to acquire, design and
construct the Cabrillo Park Drive Improvements exceeds
the benchmark, the amount of any such excess shall be
deducted from the Developer's obligation to contribute
toward the cost of the First and Grand Improvements.
(3) First Street and Grand Avenue. The Developer
agrees to prepare the plans and specifications for the
First and Grand Improvements at its sole cost and
expense within one (1) year from the Effective Date of
this Agreement. Further, the Developer agrees to
contribute an amount equal to One Million Three Hundred
Thirty-Two Thousand Five Hundred Thousand and No/100
Dollars ($1,332,500.00) applicable toward the actual
total cost of construction of the First and Grand
Improvements. Such contribution shall be made by
Developer to the City within ninety (90) days after
demand by the City. In no event shall the City require
such contribution sooner than such costs are actually
incurred by the City in connection with the
construction of the contemplated improvements or prior
to March 1, 1991.
(4) Limitations on Development Fees and Developer
Contributions. The City agrees that the amounts paid
or contributed by the Developer defined below as
"Developer Contributions" shall all be credited against
any transportation fees required by the City pursuant
to Section 8-44 of the Santa Ana Municipal Code or any
other developer fee or other similar fee or charge now
or hereinafter imposed by the City on the Property
designed to fund infrastructure or traffic-related
public improvements (hereinafter "Development Fees").
The term "Developer Contributions" shall mean:
(i)
amounts contributed pursuant to Section
10(b)(1) for the Monorail Study;
(ii) the costs set forth in Section 10(b)(2)
relating to the Cabrillo Park Drive
Improvements;
(iii)
the cost of plans and specifications
for the First and Grand Improvements
and amounts contributed pursuant to
Section 10(b)(3) for the First and
Grand Improvements; and
- 8
250.
(iv)
an agreed upon amount equal to Eight
Hundred Six Thousand Eight Hundred
Seventy-One and No/100 Dollars
($806,871.00). (This agreed amount
represents a partial credit for the
cost previously incurred by Developer
for the construction of Cabrillo Park
Drive adjacent to Phase I and the
dedication of the full length of
Cabrillo Park Drive. The total costs
were approximately Three Million One
Hundred Twenty-Eight Thousand Seven
Hundred Forty-Two and No/100 Dollars
($3,128,742.00).
Items (i) through (iv), above, are hereinafter
collectively referred to as the "Developer
Contributions." The City hereby agrees that in no
event will the total of all Development Fees for the
Project exceed a total of Four Million Four Thousand
Three Hundred Seventy-One and No/100 Dollars
($4,004,371.00) and in no event will the Developer be
obligated to make Developer Contributions as set forth
in Items (i) through (iv) above that exceed a total of
Four Million Four Thousand Three Hundred Seventy-One
and No/100 Dollars ($4,004,371.00).
(5) Other Mitigation Measures. The Developer
agrees to pay all cost and expense associated with the
performance of the "Other Traffic-Related Public
Improvements," "Transportation Demand Management
Program" and "Non-Traffic Mitigation Measures" as set
forth in above Sections 9(b)(3), 9(b)(4) and 9(b)(5).
(6) Reimbursement for Water Line. The City shall
require any developer of the vacant property across
Fourth Street from the Property to reimburse the
Developer for part of the cost of the water line
installed by the Developer in Cabrillo Park Drive.
Such reimbursement shall be on the basis of a fair
share apportionment of the benefit of said water line
between the development on the Property and the
development to occur on said property to the north.
11. Timing For Performance of Developer's Obligations. The
time for the performance of Developer's obligations as set forth
in Sections 9(b) and 10(b), above, shall be extended by any
period or periods of time that this Agreement is subject to legal
challenge by any third party. Further, Developer's obligations
as set forth above may be extended by the City Manager for
periods of time up to ten (10) months. Such extension shall be
warranted in the event of delays in the acquisition of necessary
rights-of-way by the City. Further, the time for Developer's
performance of its obligations relating to the preparation of
- 9 -
,,.. "2,50./,z
plans and specifications or the completion of construction shall
also be extended for delays, arising as a result of war or
insurrection, riots, casualtles, ~loods, earthquakes, adverse
weather conditions, labor strikes, boycotts, lockouts, shortages
in material or equipment, acts or omissions of the City, acts or
omissions of third parties who are not parties to this Agreement,
or other causes beyond the reasonable control of Developer.
12. Subsequent Environmental Review. In exercising its
legislative discretion to enter into this Agreement and to commit
the City to the completion of the Project(s), the City has
reviewed and considered the potential adverse environmental
impacts related to all aspects of the contemplated Project(s),
including, without limitation, the potential demands the
Project(s) will make On local and regional streets, highways,
water capacity and water lines, sewer capacity and sewer lines,
flood and storm drain systems, and energy conservation, traffic,
pedestrian safety, shadowing, noise and air quality impacts,
public health and safety, impacts on school facilities, cultural
resources, geotechnical impacts, and visual aesthetics. The City
has further reviewed and considered from a variety of perspec-
tives, and has analyzed pursuant to a variety of assumptions, the
projected future regional and cumulative area-wide environmental
demands that will compete with the Project(s) for available
capacities and cumulatively add to potential adverse impacts. In
so doing, the City has considered among other things, the
possibilities that:
(i) Federal, local, regional and state plans, if any,
for provision of new infrastructure systems or expansion of
existing infrastructure systems may be delayed, modified or
abandoned;
(ii) The types, ntensltles, and amount of future
regional development may exceed or otherwise be different
from that currently being planned by the City and other
local agencies; and
(iii) Regional and Project(s) generated demands on
infrastructure and utility improvements to be constructed as
a part of the Project(s) may exceed in either the short run
or the long run the allocated capacities for such demands.
After assessing these and other potential adverse
environmental impacts associated with the development of the
Property, the City has imposed the mitigation measures set forth
in paragraph 9, above, and in the EIR to the fullest extent the
City considers feasible and necessary. The City has determined
that the public benefits of the Project(s) override any potential
adverse environmental impacts which may arise during the develop-
ment period; therefore, the City agrees, consistent with
California Public Resources Code Section 21166, that no
subsequent or supplemental environmental impact report shall be
required by the City for subsequent approvals except as otherwise
required by Section 21166.
- 10 -
250 5
13. Vesting of Development Rights.
(a) General Statement. As a material inducement to
Developer to continue with diligent efforts to promote the
development of the Property, the City desires to cause all
development rights which may be required to develop the
Property with buildings and related improvements consistent
with the SD to be deemed vested in Developer for the benefit
of the Property, as of the Effective Date of this Agreement,
to the fullest extent permitted by law, and to eliminate all
rights of the City or any body or agency thereof to impose
on the Project(s) any subsequent ordinances, rules,
regulations, policies, or moratoriums which are inconsistent
with the terms of this Agreement. Notwithstanding the
foregoing, nothing set forth in this Agreement shall be
deemed to require Developer to complete the Project(s).
(b) Vesting of Development Rights. Developer is
hereby authorized and vested with the right to subdivide and
construct works of improvement upon the Property in
compliance with the density, intensity, height, size,
access, parking and other components of the SD.
(c) Existing Rules to Govern. In a.ccordance with the
terms of Government Code Section 65866, the City and
Developer agree that the ordinances, rules, regulations and
official policies of the City, including the SD (collec-
tively, the "Existing Development Regulations") in effect as
of the Effective Date of this Agreement governing the
design, density, permitted land uses, improvement and
construction standards applicable to the Project(s) shall
govern during the Term of this Agreement. Except as
otherwise provided in this Agreement, no amendment to or
revision of, or addition to any of the Existing Development
Regulations without Developer's prior written approval,
whether adopted or approved by the City Council or any
office, board, commission or other Agency of the City, or by
the people of the City through charter amendment, referendum
or initiative measure or other vote, shall be effective or
enforceable by the City with respect to the Project(s), its
design, grading, construction, remodeling, use or occupancy,
or schedule of development.
(d) Definition of "Existing Development Resula-
tions". As used herein, "Existing Development Regulations"
shall not include municipal ordinances, rules, regulations
and policies which do not conflict with Developer's vested
rights to develop and use the Property in accordance with
the SD, the General Plan Amendment, the Tentative Map and
this Agreement. Developer and its successors and assigns
and all persons and entities in occupation of any portion of
- 11
, 25o. '/
the Property shall comply with such non-conflicting laws and
regulations as may from time to time be enacted or
amended. Specifically, but without limitation, such non-
conflicting laws and regulations shall include the follow-
ing:
(1) Except as otherwise provided herein, taxes,
assessments, fees and charges;
(2) Building, electrical, mechanical, fire and
similar codes based upon uniform codes incorporated by
reference into the Santa Ana Municipal Code (other than
Ordinance No. NS-1998 which shall be applicable
regardless ofany subsequent changes);
(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.
Conflicting laws and regulations shall include, without
limitation, any matters which:
(1) shall limit, restrict or reduce the density
or intensity of development or any component part of
the development or otherwise require a reduction in the
total square footage of the proposed buildings and
improvements;
(2) shall limit the timing or phasing of the
Project(s); or
(3) which are not uniformly applied on a City-
wide, good faith and non-discriminatory basis to all
substantially similar projects.
(e) Subsequent "Slow/No Growth" Measures. Consistent
with (a) and (b), above, the City and Developer specifically
agree that any subsequently enacted initiatives, referen-
dums, or amendments to the City's General Plan and/or Zoning
Code which contain "slow/no growth" measures or which by
their terms are intended to, or by operation have such
effect or which otherwise conflict with the terms of this
Agreement or limit the timing and phasing of the Project(s)
shall have no application to the Project(s). Notwithstand-
ing any such measures, the mitigation measures required for
the Project(s) are limited to those established by this
Agreement.
12 -
250ors
(f) Rent Control and Condominium Conversion. During
the Term of this Agreement, the City shall not impose or
enact any ordinance, regulation, fee or condition which (i)
directly or indirectly artificially controls or otherwise
restricts commercial rents charged within the Project(s) or
(ii) applies directly or indirectly to the conversion of
office rental units to office condominiums within the
Project(s).
14. Processing of Applications and Permits.
(a) Fees. The City agrees that any increase in the
administra~-~ fees, processing fees, permit fees and other
similar fees and charges for the Project(s) above the
amounts applicable as of the Effective Date (hereinafter
"Fees") must be reasonably related to the purpose for which
the fee was imposed, e.g., increased administrative overhead
or increased cost of construction of public improvements.
The term "Fees" shall not include "Development Fees" as
defined and limited by Paragraph 10(b)(4) above. Further,
the City agrees that in no event shall the total aggregate
amount of the Fees imposed on the Developer for any Phase of
the Project exceed the simple arithmetic average of the
total aggregate Fees that would be charged for the
applicable Phase of the Project based upon the schedule of
Fees then being utilized by the cities of Anaheim, Irvine,
Newport Beach, and Orange. In the event the average amount
as calculated herein is less than the Fees that would
otherwise be imposed on the Project by the City, the City
agrees that the Developer shall only be required to pay fees
up to the amount of the average.
(b). Processing% The City will accept for processing
and review all applications for permits or other entitle-
ments with respect to the Project(s) in accordance with
this Agreement. Developer shall likewise have the right to
apply for revisions to any approved site plan for the
Project(s). Any such new site plan applications shall be
reviewed in accordance with this Agreement and the SD. The
City and its officers, agencies and departments agree to
fully cooperate with Developer, consistent with the
requirements of law, to process all applications, permits,
and approvals necessary to complete the Project(s) in a
reasonably expeditious manner, including (i) the processing
of any and all approvals for the Project(s) requested by
Developer, (ii) the scheduling, convening and conclusion of
all required public hearings, if applicable, (iii) the
processing of all maps, plans, land use permits, building
plans and specifications and other plans relating to the
development of the Project(s), including, but not limited
- 13 -
to, final site plans, tentative maps, parcel maps, final
maps, resubdivisions, amendments to maps, lot line adjust-
ments, encroachments, grading and building permits, sewer
and water connection permits, business licenses, Land Use
Certificates, and related matters as necessary for the
completion and occupancy of the Project(s), and (iv)
inspections and issuance of temporary and permanent certifi-
cates of occupancy when warranted. In addition, the City
shall cooperate with Developer in its efforts to obtain any
permits and approvals as may be required by other govern-
mental or quasi-governmental agencies having jurisdiction
over the Project(s) including, without limitation, the Air
Quality Management District, Federal Aviation Administra-
tion, County of Orange, Caltrans, City of Tustin, County
Sewer and Water Districts, State of California Alcoholic
Beverage Control Board, and County Health Department.
(c) Development Review. Nothing set forth herein
shall impair or interfere with the right of the City to
require the processing of building permits as required by
law and to conduct its development review of any specific
improvements proposed for the Project(s) pursuant to the
existing development regulations; provided, however, no such
review shall authorize or permit the City to impose any
condition and/or withhold approval to any proposed building
the result of which would be inconsistent with any term or
provision of this Agreement and it is hereby further agreed
that the basis for the City's development review shall be
limited to compatibility with the standards and
specifications set forth in the SD.
15. Periodic Review and Monitoring of Compliance with
Agreement.
(a) Periodic Review. The City shall review this
Agreement at least once every twelve (12) months from the date
this Agreement is executed. During each periodic review by the
City, Developer shall demonstrate good faith compliance with the
terms of this Agreement. Developer agrees to furnish such
evidence of good faith compliance as the City in a reasonable
exercise of its discretion may require. Developer shall be
deemed to be in good faith compliance with this Agreement if the
City is not entitled by the terms and provisions hereof, to
terminate this Agreement.
(b) Monitoring. The Developer shall file a written
report with the Executive Director of the Planning and Building
Department of the City approximately once every (12) twelve
months, beginning with the first periodic review of Developer's
compliance with this Agreement as required in subsection (a),
above. Subsequent written reports shall be filed concurrently
- 14 -
with each annual review of Developer's compliance with the
Agreement. The written report shall briefly state the status in
implementing each mitigation measure which is adopted as a
condition of approval or which is incorporated into the
Project. The Planning and Building Department staff shall review
the written report and determine whether there is any unusual and
substantial delay of over one (1) year in, or obstacle to,
implementing the adopted or incorporated mitigation measures
which requires action by Department staff. The result of this
review will be provided to the Developer in writing. If the
staff determines that action is required, the staff and the
Developer shall consult and, if possible, agree upon additional
actions to be taken to implement the mitigation measure(s) which
are the subject of the delay or the obstacle. If, and only if,
the staff and the Developer are unable to agree upon the
additional actions to be taken, then either staff or the
Developer may bring the matter before the Executive Director of
the Planning and Building Department for a decision whether any
action should be taken and what that action should be. Staff and
the Executive Director of the Planning and Building Department
shall be limited to imposing reasonable actions as permitted by
law and by the terms of this Agreement and the EIR which will
implement the existing mitigation measures in the time
contemplated by the terms of this Agreement.
16. Amendment and Modification
(a) General Provision. Except as otherwise set forth
in this Paragraph, this Agreement may be amended or
cancelled in whole or in part only by mutual consent of the
parties or their successors-in-interest, in the manner
provided for by California Government Code Sections 65865.1,
65867, 65867.5 and 65868.
(b) Modification of Agreement in the Event of Changes
in State or Federal Law or Law of Other Governmental Entity.
In the event that State or Federal laws, ordinances, rules,
regulations, or policies or the laws, ordinances, rules,
regulations, or policies of any other governmental or quasi-
governmental entity enacted after the Effective Date of this
Agreement prevents or precludes compliance with one or more
of the provisions of this Agreement, or impose a requirement
on the Project(s) materially different than as otherwise
contemplated by this Agreement, the City agrees to:
(1) Provide Developer with written notice of such
event and a statement of the conflict with the
provisions of this Agreement; and
(2) Promptly meet and confer with Developer in
good faith to modify this Agreement to comply with such
law, ordinance, rule, regulation, or policy.
- 15 -
Thereafter, regardless of whether the parties reach
agreement on the effect of such law, ordinance, rule,
regulation, or policy upon this Agreement, the matter
shall be scheduled for a hearing before the City
Council, upon thirty (30) days notice, for the purposes
of determining the exact modification required to this
Agreement. It being the express intent of the parties
to modify the Agreement to allow for the development of
the Project(s) in as close conformity to the terms and
conditions of this Agreement as reasonably possible.
17. Events of Default.
(a) Developer shall be deemed to be in default under
this Agreement in the event that the City's City Council
finds and determines, on the basis of substantial evidence,
following a periodic review under the procedures provided
under Government Code Section 65865.1 and Paragraph 15
hereof, that Developer has not complied in good faith with
one or more of the material terms or conditions of this
Agreement.
(b) The City shall be deemed to be in default under
this Agreement upon the occurrence of one or more of the
following events:
(i) The imposition by the City upon Developer of
any ordinance, rule, regulation, policy or moratorium
in conflict with Existing Development Regulations or
the terms of this Agreement. The City shall not be
deemed to be in default by reason of subsequent change
of laws, rules, regulations, or policies of another
local agency or governmental entity not created or
controlled by City which prevents or precludes
compliance by City or Developer with this Agreement;
the City agrees not to initiate or promote any such
changes without Developer's express written consent and
will use its best efforts to oppose any such changes.
(ii) The failure by the City to perform any
covenant or obligation required by this Agreement in
the time and manner set forth herein, including,
without limitation, the Public Improvements required to
be constructed by the City as set forth above.
(c) In the event of a default as defined in subpara-
graph (a) or (b) of this Paragraph 17, the non-defaulting
party shall issue to the other party a written "Notice of
Default" specifying the grounds therefor and all facts
demonstrating that a default has occurred. The party
receiving the Notice of Default shall have thirty (30) days
to respond in writing to the Notice of Default indicating
- 16 -
250.1q
that the party is contesting the existence of the default.
If a response to the Notice of Default has not been received
in the offices of the party alleging the default within such
thirty (30) day time period, the Notice of Default shall be
conclusively presumed to be valid and the defaulting party
shall have an additional thirty (30) days to cure such
default. In the event that the default is not cured within
the period set forth above, the non-defaulting party may
pursue any remedy afforded by Paragraph 10. If a Notice of
Default is contested, the parties shall have up to sixty
(60) days from the date of written response to the Notice of
Default to arrive at a mutually acceptable resolution of the
matter(s) giving rise to the Notice of Default. If, after
the expiration of such time, the parties are not able to
arrive at a mutually acceptable resolution of the matter(s),
the party alleging the default may elect to pursue any
remedy afforded by Paragraph 16.
18. Consequences of Default. In the event of a default by
either party which is not cured within the time prescribed by
Paragraph 17, the non-defaulting party may undertake one or more
of the following remedies:
(a) Terminate this Agreement by written notice stating
the grounds for such action; or
(b) Institute an action for specific performance of
this Agreement, injunction, or other equitable relief, it
being expressly agreed that in the event of a breach of this
Agreement, irreparable harm is likely to occur to the non-
breaching party and damages are not an available remedy. In
no event shall either party be entitled to damages against
the other party based upon the other party's default under
this Agreement.
19. Bindin9 Effect of Agreement. The burdens of this
Agreement shall bind, and its benefits inure to, all successors-
in-interest to the parties hereto and constitute covenants which
run with the land. City agrees to cause an original of this
Agreement to be recorded with the County Recorder for the County
of Orange in compliance with the requirements of Government Code
~65868.5.
20. Assignment. Developer shall have the right to sell,
assign, pledge as security or transfer all or any part of its
interest in the Property along with all of its right, title and
interest in and to all or any part of this Agreement to any
person, firm or corporation at any time during the Term without
the consent of City. The City agrees to execute any document
reasonably required by an assignee, transferee, lender or other
party confirming the rights of such party under this Agreement or
providing notices of default and rights to cure for the benefit
of such parties.
- 17 -
· . 250. o
21. Notices. Unless otherwise specifically provided in
writing, all notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been
delivered upon actual personal delivery or as of three (3)
business days after mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to City: Executive Director of the Planning
and Building Department
City of Santa Ana
20 Civic Center Plaza
P. O. Box 1988
Santa Ana, CA 92702
With a copy to:
City Attorney
City of Santa Ana
20 Civic Center Plaza, M-29
P.O. Box 1988
Santa Ana, CA 92702
If to Developer:
Birtcher Xerox Partners
c/o Birtcher
27611 La Paz Road
Laguna Niguel, CA 92656
Attn: Brandon R. Birtcher
With a copy to:
Voss, Cook, Casselberry & Thel
840 Newport Center Drive
Suite 700
Newport Beach, CA 92658
Attn: David A. Lurker
A party may change its address by giving notice in writing to the
other party, and thereafter notices shall be delivered or sent to
such new address.
22. General Provisions.
(a) Waiver. A waiver of any default or failure to
enforce any provision of this Agreement by either party
shall not constitute a waiver of any subsequent default or
prevent the enforcement of the same or other provision at
any subsequent time.
(b) Severability. In the event that any provision of
this Agreement shall be held to be invalid by a court of
competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof. Further,
in the event any approval or action by the City in connec-
tion with this Agreement is held to be invalid by a court of
competent jurisdiction, to the fullest extent permitted by
- 18
250.2
II
II
II
II
II
II
II
II
II
II
II
II
II
II
law, such holding shall not invalidate or render
unenforceable another approval or action.
(c) Entire Agreement. This Agreement, the exhibits
hereto and the approvals referenced herein contain the
entire agreement between the parties, and is intended by the
parties to completely state the Agreement in full. Any
agreement or representation respecting the matters dealt
with herein or the duties of any party in relation thereto,
not expressly set forth in this Agreement shall be of no
force or effect.
(d) Relationships of the Parties. The relationship of
Developer and the City is exclusively that of parties to
this Agreement. Neither Developer nor the City is the agent
or principal of the other.
(e) Construction. This Agreement shall be interpreted
pursuant to the laws of the State of California. This
Agreement is the product of negotiation and has been drafted
by the mutual efforts of both parties and, in the event of
an ambiguity, it shall be construed accordingly.
(f) Time of the Essence. Time is of the essence for
each provision of this Agreement of which time is an
element.
(g) Incorporation of Recitals.
in Paragraphs A. through G. above,
by this reference.
The Recitals set forth
are hereby incorporated
(h) Effective Date. This Agreement shall be dated as
of the date of adoption of an ordinance of the City
approving this Agreement, it being understood that such an
ordinance shall not have been submitted to the City Council
for adoption until after the execution of this Agreement by
Developer. The "Effective Date" of this Agreement shall be
the date on which said ordinance becomes effective.
- 19
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year set forth above.
"CITY"
"DEVELOPER"
CITY OF SANTA ANA,
a municipal corporation
D~--Young ,/\ /
Mayor ~J !
BIRTCHER XEROX PARTNERS, a
California general partnership
By: BIRTCHER EQUITIES, a California
general partnership, Partner
By: BIRTCHER LIMITED, a California
limited partnership, Partner
ATTEST:
Clerk of t~e ~oun/c'~-/
APPROVED AS TO FORM:
City Attorney
By: BIRTCHER REAL ESTATE INC.,
a California corporation,
General Partner
Brandon R. Birtche~
~.~ Vice-president
By: XEROX REALTY CORPORATION
(CALIFORNIA), a California
corporation, Partner
- 20
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS
COUNTY OF ORANGE )
On /~,/(/~/',Ut ~"}' , 19 ":'~ , before me, the undersigned, a
Notary Publi~ ~ in and for said State, personally appeared
~[~;~'///~ ~,~'-< , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person who executed
the within instrument as President on behalf of BIRTCHER REAL
ESTATE INC., a California corporation, the corporation therein
named and acknowledged to me that said corporation executed the
within instrument pursuant to its bylaws or a resolution of its
board of directors, said corporation being known to me to be the
general partner of BIRTCHER LIMITED, a California limited
partnership, which partnership is known to me to be a partner of
BIRTCHER EQUITIES, a California general partnership, which
partnership is known to me to be a partner of BIRTCRER XEROX
PARTNERSHIP, a California general partnership, the partnership
that executed the within instrument, and acknowledged to me that
he executed the within instrument on behalf of BIRTCHER REAL
ESTATE INC., that said corporation executed the within instrument
on behalf of BIRTCHER LIMITED, that said partnership executed the
within instrument on behalf of BIRTCHER EQUITIES, that said
partnership executed the within instrument on behalf of BIRTCHER
XEROX PARTNERS, and that BIRTCHER XEROX PARTNERS executed the
same.
WITNESS my hand and official seal.
THLEEN A. liALVERSOH
NOTARY PUBLIC
(SEAL)
- 21 -
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
SS
/
On ~/~/c.,,/'~7 .'-"~ , 19 C~ , before me, the undersigned, a
Notary Public in and for said State, personally appeared BRANDON
R. BIRTCHER, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person who executed the
within instrument as Vice-President on behalf of BIRTCHER REAL
ESTATE INC., a California corporation, the corporation therein
named and acknowledged to me that said corporation executed the
within instrument pursuant to its bylaws or a resolution of its
board of directors, said corporation being known to me to be the
general partner of BIRTCHER LIMITED, a California limited
partnership, which partnership is known to me to be a partner of
BIRTCHER EQUITIES, a California general partnership, which
partnership is known to me to be a partner of BIRTCHER XEROX
PARTNERSHIP, a California general partnership, the partnership
that executed the within instrument, and acknowledged to me that
he executed the within instrument on behalf of BIRTCHER REAL
ESTATE INC., that said corporation executed the within instrument
on behalf of BIRTCHER LIMITED, that said partnership executed the
within instrument on behalf of BIRTCHER EQUITIES, that said
partnership executed the within instrument on behalf of BIRTCHER
XEROX PARTNERS, and that BIRTCHER XEROX PARTNERS executed the
same.
WITNESS my hand and official
seal.
NOTARY PUBLIC
Name (Typed or Printed)
(SEAL)
- 22-
250. s
ACKNOWLEDGMENT
On ~e~,~ 5' , 19~ , before me, the undersigned, a
Notary Public ~ in and for said state, personally
appeared ~p~ ~,'~o1~ ~ -- '
personally known to me (orp~o~ed to me on the basis o~'
satisfactory evidence) to b~ t~e person who executed the within
on behalf of XEROX REALTY CORP. (CALIFORNIA), a California
corporation, the corporation therein named and acknowledged to me
that said corporation executed the within instrument pursuant to
its bylaws or a resolution of its board of directors, said
corporation being known to me to be a partner of BIRTCHER XEROX
PARTNERS, a California general partnership, the partnership that
executed the within instrument, and acknowledged to me that said
corporation executed the within instrument on behalf of BIRTCHER
XEROX PARTNERS, and that BIRTCHER XEROX PARTNERS executed the
same.
(SEAL)
WITNESS my hand and official seal.
Name (typed or printed~
- 23 -
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
SS.
On , 19 , before me, the undersigned, a
Notary Public in and for sai-~state, personally appeared DAN
YOUNG, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within
instrument as the Mayor of THE CITY OF SANTA ANA, a municipal
corporation, organized and existing under the State of
California, the municipal corporation that executed the within
instrument, and acknowledged to me that he executed the within
instrument on behalf of said municipal corporation, and said
municipal corporation executed the same.
WITNESS my hand and official seal.
NOTARY PUBLIC
Name (typed or printed)
( SEAL )
State of California }SS.
County of Orange
On this ~.~Z day of <:Q0./y;.z%49.cc.,_ , in the
year ./...,~3..O--, before me ~' ~ , Clerk of the
Council or /-'v'. Z:). ~A/¢~,O/,,,/ , Deputy Clerk of the
Council of the City of Santa Ana personally appeared
DA~/E'/., //. ",'0/.,'/,/($ , personally known to me (or
proved to me on the basis of satisfactory evidence)
to be t.he person who executed this instrument as
of the City of Sa.t~{ Aha and acknowledged to me that
the City of Santa Aha executed it. ..,./
- 24 -
250.27
EXHIBIT "A"
LEGAL DESCRIPTION
OF THE PROPERTY
The West 15.0 feet of lot 15 of the Mabury Tract, as
shown on a map recorded in Book 36, Page 65 of Miscellaneous
Records of Los Angeles County, California.
That portion of Lot 16 of the Mabury Tract,
a map recorded in Book 36, Page 65 of Miscellaneous
Los Angeles.County, California,~described as follows:
as shown on
Records of
Beginning at a point on the north line of said
lot, distant thereon North 89 degrees 13' 40"
East 299.99 feet from the northwest corner
thereof; thence continuing North 89 degrees
13' 40" East along said north line, 650.12
feet to the Northeast corner of said lot 16;
thence South 0 degrees 35' 05" East 859.52
feet along the east line of said lot to the
southeast corner thereof; thence South 89
degrees 07' 30" West 377.76 feet along the
south line of said lot 16 to the southerly
corner of the land described in the Director's
Deed to Allstate Insurance Company, an
Illinois corporation, Recorded October 24,
1966 in Book 3688, page 220 of Official
Records; thence along the westerly line of
said Deed, North 56 degrees 13' 44" West 33.35
feet; thence north 18 degrees 49' 13" West
491.00 feet; thence North 22 degrees 39' 48"
West 403.54 feet to a point in the northerly
line of lot 16, distant 60.50 feet westerly
from the point of beginning; thence North 89
degrees 13' 40" East 60.50 feet to the point
of beginning.
Except therefrom that portion of said lot 16
more particularly described in Director's Deed
to Allstate Insurance Company, an Illinois
corporation, recorded October 24, 1966 in Book
3688, Page 220 of Official Records, all
minerals, oil, gases and other hydrocarbons by
whatever name known that may be within or
under said parcel of land, without, however,
the right to drill, dig or mine through the
surface therefor, as reserved by the State of
California in the Deed above mentioned.
NOTE: Upon recordation of a Final Map in a accordance
with Ten~-~-~ve Map No. 88-102, the legal description will
thereafter be refere~ed as Parcels 1 through 5, inclusive, of
Map No. 88-102.
VESTING
TENTAT/¥E PARCEL MAP
88-102
W