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HomeMy WebLinkAboutNS-2413 - Approving a Development Agreement Between City of Santa Ana ...277 ORDINANCE NO. NS-2413 AN ORDINANCE OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND JAMES A. LUKENS and FLORENCE B. LUKENS PERTAINING TO PROPERTY LOCATED AT 1350-1414 WEST EDINGER AVENUE WHEREAS, JAMES A. LUKENS and FLORENCE B. LUKENS have requested to enter into a Development Agreement in the form set forth in Exhibit A, 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, for the development of property located at 1350 through 1414 West Edinger; and WHEREAS, prior to taking action on this ordinance, the City Council of the City of Santa Aha reviewed and considered the information contained in the Development Agreement pertaining to the development of the above described property; and WHEREAS, this Council, prior to taking action on this ordinance, has held a duly noticed public heating, on the said Development Agreement; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: 1. That certain Development Agreement between the City of Santa Ana and JAMES A. LUKENS and FLORENCE B. LUKENS, in the form set forth in Exhibit A, attached hereto and incorporated herein, is hereby found to be consistent with the General Plan of the City of Santa Ana and is hereby approved, and the Mayor is authorized to execute said Agreement on behalf of the City of Santa Ana, with such non-substantive changes as may be approved by the City Attorney, following its execution by JAMES A. LUKENS and FLORENCE B. LUKENS, and the Clerk of the Council to attest to the same. 2. The Clerk of the Council is directed to cause of copy of the said Development Agreement to be recorded in the official records of Orange County, California, within ten days following its effective date. As used herein "effective date" means the date thirty days after the date of adoption of this ordinance. ADOPTED this 6th day of December ,1999. ATTEST: /8~"~. Guy /Clerk of the Council Mig)~ulido I Ma96r Ord. No. NS-2413 Page 1 of 2 278 COUNCILMEMBERS: Pulido Aye Lutz Aye Bist Aye Christy Franklin Aye McGuigan Aye Moreno Aye APPROVED AS TO FORM: Joseph W. Fletcher City Attorney ~rgJ. e2 ~s~°jtalcity Attorney CERTIFICATE OF ORIGINALITY & PUBLICATION State of Califomia County of Orange I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance No. A/Y - 2~ ,-A ! ~ to be the original ordinance adopted by the City Council of the City of ~anta Ana on />-/z, / ¢ ? ; and that said ordinance was published in accordance with the Charter of the Ci{y o~' Sknta Ana. Date: /~-/,~'-I~ / [ '~ /J~0~ofthe Council ~'/- ~ity of Santa Ana Ord. No. NS-2413 Page 2 of 2 279 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Aha 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, california 92702 EXHIBIT RECORDED: BOOK/PAGE DEED NO. TIME' 3;c~5 FREE RECORDING GOVERNMENT CODE § 6103 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND JAMES A. LUKENS and FLORENCE B. LUKENS This DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city ("City") and LUKENS ENTERPRISES, LLC, SUCCESSOR-IN-INTEREST to JAMES A. LUKENS and FLORENCE B. LUKENS ("Owner" or "Property Owner"). facts: RECITALS. The Agreement is entered into with reference to the following 1.1 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) the time of development. This Agreement is intended to assure adequate public facilities at (2) This Agreement is intended to assure development in accordance with City's General Plan, and applicable Specific Plans. (3) This Agreement will permit achievement of goals and objectives as reflected in the City's General Plan and all applicable Specific Plans. (4) This Agreement is intended to assure the applicant that upon the approval of the development project, the applicant may proceed with the project in accordance with existing policies, rules and regulations. (5) This agreement is intended to reduce the economic cost of the development to both the City and Owner and is submitted by City and Owner as applicant. 28O 1.2 Owner. Owner represents and wan, ants that it has a legal or equitable interest in the real property located in City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein (hereinafter the "Property"). The Property is located at 1350 through 1414 West Edinger at the southwest intersection of Bristol Street and Edinger Avenue, parcel no. 408-273-08. The Owner desires to develop the Property with a retait facility of approximately 95,400 square feet with on-site parking. The Property is zoned reta. il commercial and is improved by approximately 95,400 square feet of building. The Property is part of a larger retail ("Center") consisting of approximately 140,500 square feet of building. The Property is subject to and benefited by a Reciprocal Easement Agreement which entities the Owner to a non-exclusive right to use 730 parking spaces in the Center. For the past four years Owner has engaged in the refurbishment and/or redevelopment of a portion of the Property. The proposed widening of Bristol Street will cause a reduction in the number of parking spaces in the Center. It is the parties' desire that Owner have the right, but the obligation, to continue the redevelopment and refurbishment on the Property without being prejudiced by the proposed loss of parking spaces. 1.3 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. 1.4 Council Hearings. On November 15, 1999, the City Council of the City of Santa Aha ("Council"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the City's and Owner's application for this Agreement. 1.5 Council Findings. The Council finds that this Agreement is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On December 6, 1999, the Council adopted Ordinance No. NS-2412 approving this Agreement. The ordinance became effective on January 5, 2000. 2. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Property Owner" or "Owner" means JAMES A. LUKENS and FLORENCE B. LUKENS, being the person, persons, or entity having a legal or equitable interest in the Property, and includes their successors in interest. 2.2 "Property" is the real property described in Exhibit A and referred to in Exhibit B, commonly referred to as 1350-1414 West Edinger, A.P. No. 408-273-08. 2.3 "Project" is the development of the Property as generally set forth in section 5.1 of this Agreement. 2.4 "Reciprocal Easement Agreement" is that agreement dated March 22, 1962 relating to, and for the benefit of, the Property. 2 281 to this Agreement and are identified as follows: EXHIBITS. The following documents referred to in the Agreement are attached Exhibit Designation Description Property Legal Description A Property Graphical Description (Site Plan) B Referred to in Section 1.2 1.2 4. GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section 9.3 below, no property shall be released fi.om this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of the Agreement shall commence on, and the effective date of the Agreement shall be, the effective date of City Ordinance No. NS- 2412 as set forth in Section 1.6 above, and the term shall extend for a period of eight (8) years following the effective date unless the Agreement is earlier terminated, or its term modified of fully executed by both parties; provided, however, that nothing herein is intended nor shall it be interpreted to extend the period of validity of any approval issued in conjunction with the City's Development Project Plan process or building permit, beyond local requirement. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, the rights of Owner under this Agreement may not be transferred or assigned unless 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. The rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. 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 alt approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. 4.4 Amendment or Cancellation of Agreement. This Agreement may be 11/12/99 11:44 AM 282 amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. 4.6 Hold Harmless. Property Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives harmless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Property Owner or their comractors, 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 fi.om this Agreement. Property Owner agrees to pay all costs for the defense of the City and its officers, agents, employees, consultants, special counsel, and representatives regarding any action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have been caused by reason of Property Owner's actions in connection with the Project, any claims arising out of this Agreement, or any approval or certification by the City relating to the Project. This hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property fights by reason of the terms of, or effects arising from 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. 4.8 Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 4.9 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if 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 11/12/99 11:44 AM 4 283 following persons: If to City, to: City Clerk City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Aha, California 92702 telefacsimile (714) 647-6954 with a copy to: City Attorney City of Santa Aha 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Aha, California 92702 telefacsimile (714) 647-6515 If to Owner, to: Lukens Enterprises, LLC c/o James A. Lukens and Florence B. Lukens 1151 River Lane Santa Ana, California 92706 With a copy to: James E. Carter, Esquire 1851 E. First Street, Suite 800 Santa Aha, California 92705 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. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days 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 t~ames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 284 5.1 Rules, Regulations and Policies. The rules, regulations and official policies governing thc permitted use(s) of the Property, with respect to and only with respect to the density and intensity of use of the Property, shall be those rules, regulations, and policies applicable to the Property as of(a) the effective date of this Agreement, or Co) the time at which Owner obtains a building permit for the Project or any unit or structure contained witl-fin the Project, whichever is later, with the exception that the Property will be viewed for purposes of issuance of development approval as if it had 730 parking spaces. Thc parties specifically intend that the future development of the subject property into an expanded retail use will occur as if the City had not taken any parking spaces under the Reciprocal Parking Agreement that relates to the property. Accordingly, the parties intend that the future build out of the property, including density and intensity of use, to occur as if it still possessed the benefit of all 730 parking spaces. 5.2 Permitted Use, Density, and Intensity of Use; Rate and Amount of Gro~vth. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,208 Cal.Rptr. 228, 690 P.2d 701, the right to enact police power regulations on matters not covered by section 5.1 of this Agreement, including without limitation regulation of the off-street parking requirements is not abrogated by the City. 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. No vested rights as to any requirements in this sub-section either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5.3 Design and Construction Standards and Specifications. Except as stated section 5.1 and 5.2, the design and construction standards and specifications for all Project construction 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 Maximum Height and Size of Structure. The maximum height and size for all structures shall be as provided in the applicable zoning classifications. 5.5 Future Discretionary Approvals. This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by Section 5.1 and 5.2 of this Agreement subsequent to the effective date of this Agreement, from applying new rules, regulations, and policies which are applicable to the Property, including but not limited to, changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules, regulations, and/or policies; provided however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.1 and 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 11/12/99 11:44 AM 6 285 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (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 Co) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in the Development Plan or this Agreement. 5.8 Development, Construction and Completion of Project. For valuable consideration, the Owner has been legally vested under Section 5.1 and 5.2 with regard to the permitted uses of land, density, and intensity of use. The Facilities described in section 5.1 must be designed and construction commenced prior to the eighth armiversary date of this Agreement as specified in Section 4.2. After the effective date of this Agreement, and during the duration hereof, Owner shall have the right to secure the necessary permits and approvals necessary to continue to pursue the refurbishment and/or redevelopment of the Property in accordance with the terms and conditions of this Agreement, including without limitation, all permits fi-om the City of Santa Ana. Any refurbishment and/or redevelopment project shall be initiated by Owner during the term of this Agreement provided, however, Owner shall not be required by this Agreement to initiate any such development. Any development that is initiated by the Owner, however, shall be in compliance with this Agreement and Owner shall perform all of its obligations under this Agreement, 5.9 Responsibility For Costs of Development of Retail Center. The City and Owner agree that Owner shall be responsible for all costs associated with the design and construction of the Retail center. 5.10 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. I 1 Compliance With Governmental Requirements. Subject to the terms and provisions of this Agreement, Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, 11/12/99 11:44 AM 286 rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including alt applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 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 is false or proves to have been false in any material respect when it was made; (2) Failure to comply with Governmental Requirements. 7.2 ProcedUre upon Default. (1) Upon the occurrence of default, City shall give Property Owner 13./12/99 3.1:44 AM 8 287 (the "defaulting party") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that 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) Non-performance shall not be excused because of a failure of a third person. (3) 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. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against City upon termination of this Agreement. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within thirty (30) days following the date of default. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous agreements [1/12/99 11:44 AM 9 288 between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropr/ate author/ties of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of performance of this Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the approphate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking, It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; Co) 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 until City accepts the improvements pursuant to the provisions of this Agreement or in connection with discretionary approval(s); and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The 11/12/99 11:44 AM 10 289 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana, acting by and~through its Mayor, and by Property Owner. ATTEST ' '. ' CLERK OF. THE COUNCIL Dated this ~t~ day of~, PROPERTY OWNER LUKENS ENTERPRISES, LLC ~"james A. Lukens, Member PROPERTY OWNER LUKENS ENTERPRISES, LLC Florence B. Lukens, Member Approved as to F~grm: ,~I~IglES E. CARTER, Esq. Attorney for Lukens Enterprises, LLC JOSEPH W. FLETCHER, CITY ATTORNE~-~//~ ~etiior Assistant City Attorney 12/28/99 2:55 PM 11 290 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange On January 3, 2000 before me, Elizabeth A. Dan~. Sr. Deoutv Clerk, personally appeared Miguel A. Pulido, Mavor s^,~m) oF s,o.ms) [] personally known to me - OR - [] 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(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of whleh the person(s) acted, executed the instrument. WITNESS my hand and official seal. 291 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ' St~ of California - , : - personally appeared' Elizabeth A. Dam,. Sr. Deoutv Clerk. ~^Mm) OFS~G~mS) . ' ~:person~lly lo. own to me - OR - ~ proved tome on ~e basis of safisfact~ evidence to ~ ~e person(s) whose n~s) ~are subseri~d to ~e.wi~in ink.mere ~d ac~owledged to me ~at he/she/~ey ex~uted ~e same in his/her/~ir authorized capacity(ies) and that by his/her/their signature.(S) on the. instrument .the person(s); Pr .fl3e 'e~titY ulSon behalf of .which'the persOn(s) i~cted exe6uted ~e instmme~nt. -- .... ;: '.- .. - :,. WITNESS my hand and official seal. 292 STATE OF CALIFORNIA COUNTY OF ORANGE On December 29, 1999 before me, l~.,O~-'~-m~o/J/~'~., ~.~('~n'~5 ,Notary Public, personally appeared James A. Lukcns, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature Notary ~li~-- ROSEMARIE SANTOS COMM. #1237701 STATE OF CALIFORNIA COUNTY OF ORANGE On December 29,1999 before me, ~m0~r/~ (-~/~"~-~' ,Notary Public, personally appeared Florence B. Lukens, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity and that by her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature N°tarY~ _/ ~ ! ~ ROSEI~:ARIE SANTOS"i ~:~ C0MM.#1237701 ~ 293 F.~4IBIT ALL T]{ATCERTAIN LAND SITUATED IN TI{E STATE OF CALIFORNIA. COUNTY OF ORANGE, CIT%' OF SANTA A.NA, DESCRIBED AS FOLLOWS: PARCEL 1: THE EAST 5.25 ACRES UP TI-tE WEST 7.25 ACRES OF TIIAT I,DRTION OF TIlE LAND ALLOTTF. D TO F. W. KOLL. AS DESCRIBED IN THE FINAL DECREE OF PARTFrlON 03: TIlE RANCIIO SANTIAGD DF. SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12, 1868 1N BOOK 'B', PAGE 410 OF JUDGEMENTS OF THE DISTRICT COURT OF THE I?TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT TIlE SOUTHEAST CORNER OF THE SEPULVEDA TRACT. AS $]IOWN ON A MAI' RECORDED IN BOOK 31. PAGE 197 OF DEEDS. RECORDS OF LOS ANGELES COUNTY. CALIFORNIA; THENCE WEST 818.136 FEET; THENCE SOUTH 649.44 FEET; TIIENCE EAST 8~8.136 FEET I'IIENCE NORTH 649.44 FEET TO THE POINT OF BEGINNING. EXCBPTING FROM SAID EAST S.25 ACRES THAT PORTION DESCRIBED IN DEED TO TI1RIFTIMART. INC., A CALIFORNIA CORPORATION, RECORDED JUNE ~4, 1952 IN BOOK 6144. PAGE 203 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. PARCEL 2: THE WEST 2 ACRES OF THAT PORTION OF THE LAND ALLOTTED TO F. W. KOLL, AS DESCRIBED IN THE FINAL DECREE UP PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA. WHICI! WAS ENTERED SEPTEMBER 12, 1868 IN BOOK 'B', PAGE 410 OF JUDGEMENTS OF ]'lie DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA. DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF Tile SEPULVEDA TRACT, AS SItOWN ON A MAP RECORDED IN BOOK 31, PAGE 197 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CAL!FORNIA; THENCE WEST 818.136 FEET; THENCE SOUTH 649.44 FEET; THENCE EAST 818.136 FEET THENCE NORTH 649.44 FEET TO Tile POINT OF BEGINNING. PARCEL 3: AN APPURTENANT NON-EXCLUSIVE EASEMENT FOR PARKING, INGRESS AND EGRESS PURPOSES. AS SAID EASEMENT IS SET FORTH IN THAT CERTAIN GRANT OF EASEMENTS AND COVENANTS AND AGREEMENTS RESPECTING AUTOMOBILE PARKING AND OTHER LAND USES RECORDED J U NE 14, 1962 IN BOOK 6144, PAGE 1"/1 OF OFFICIAL REGORDS OF ORANGE COUNTY, CALIFORNIA. 294 EXHIBIT "B" ~ UBJ£C ~'