HomeMy WebLinkAboutFIRST AMERICAN TITLE COMPANY0 D
THIS AMENDED AND RESTATED PROJECT IMPLEMENTATION AGREEMENT
("Agreement") is made and entered into this day of
2000 ("Effective Date"), by and between THE FIRST AMERICAN
CORPORATION, a California corporation, formerly known as The First
American Financial Corporation ("First American"), and CITY OF
SANTA ANA, a charter city and municipal corporation organized and
existing under the Constitution and laws of the State of California
("City"). All attachments and exhibits hereto are incorporated
herein by reference.
AMENDED AND RESTATED PROJECT IMPLEMENTATION AGREEMENT
R E C I T A L S
A. This Agreement results from the following actions and
events described generally in chronological order:
1. There exists within the City a large parcel of real
property generally hounded by Columbine Avenue on the North, Main
Street on the West, MacArthur Boulevard on the South, and the Costa
Mesa/I-55 Freeway on the East, and commonly known as "MacArthur
Place" (hereinafter, "MacArthur Place") . MacArthur Place consisted
of Lots 1, 2, 3, 4, 5, 6, 7 of Tract 13802 as shown on a map filed
in Book 649, Pages 44 through 48 of Miscellaneous Maps in the
office of the Orange County Recorder, and an additional lot
commonly known as the Emerson Parcel, as the foregoing lots may
have been subject, from time to time, to further subdivision or
reparcelization or adjustments resulting from lot line adjustments,
including but not limited to that certain Lot Line Adjustment 98-
001 in the City of Santa Ana, County of Orange, State of
California, dated April 2, 1998 and recorded as Instrument No.
199802100009 in the office of Orange County Recorder, and that
certain Parcel Map No. 98-232 in the City of Santa Ana, County of
Orange, State of recorded on April 4, 2000, in Book 313, Pages 12-
17 of Parcel Maps in the office of the Orange County Recorder.
MacArthur Place is shown on the MacArthur Place Site Map attached
hereto as Exhibit A.
2. On July 6, 1982, by Ordinance No. NS 1639,the City
approved and adopted the Redevelopment Plan for the Santa Ana South
Main Street Redevelopment Project (the "Redevelopment Plan".) The
Redevelopment Plan identifies an area within the City known as the
South Main Redevelopment Project Area ("Redevelopment Project
Area"). MacArthur Place lies within the boundaries of the
Redevelopment Project Area.
3. On January 4, 1988, by Ordinance No. NS-1941, the
City adopted a specific development zoning district for MacArthur
Place, known as Specific Development Plan No. 43 (""SD Plan No.
4311). As stated in its introduction, SD Plan No. 43 sets forth
authorized uses, maximum development densities, and operational
standards for MacArthur Place while permitting maximum flexibility
in site planning and design.
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4. Also on. January 4, 1988, City and the then -owner of
MacArthur Place, BGS Partners, a California limited partnership
("BGS"), entered into that certain Development Agreement, pursuant
to California Government Code Section 65864 et sec.., recorded on
June 2, 1988, as Instrument No. 88-260709, in the office of the
Orange County Recorder (the "Development Agreement").
5. In conjunction with the adoption of SD Plan No. 43
and the Development Agreement, the City, on December 7, 1987,
certified an Environmental. Impact Report (the "EIR") pursuant to
the California Environmental Quality Act (Pub. Res. Code §21000 et
sea.) ('"CEQA"), which EIR included mitigation measures associated
with development of MacArthur Place (the "EIR Mitigation.
Measures") .
6. On April 19, 1988, BGS and the Community
Redevelopment Agency of the City of Santa Ana ("Agency"), pursuant
to its authority under the Redevelopment Plan, entered into that
certain Disposition and Development Agreement ("DDA"").
7. On May 6, 1988, the City and BGS entered into that
certain Implementation Agreement to clarify and implement the
City's and BGS's mutual understanding concerning the EIR Mitigation
Measures and other aspects of development of MacArthur Place
("City--BGS Implementation Agreement").
B. On June 24, 1991, BGS executed that certain
Declaration of Covenants, Conditions, Easements and Restrictions
for MacArthur Place which was recorded on July 31, 1991 as
Instrument No. 91-405476 in the office of Orange County Recorder,
as amended by that certain First Amendment to Master Declaration of
Covenants, Conditions, Easements and Restrictions for MacArthur
Place, dated October 28, 1992, recorded on November 25, 1992 as
Instrument No. 92-812402 in the office of Orange County Recorder,
and as further amended by that certain Second Amendment to Master
Declaration of Covenants, Conditions, Easements and Restrictions
MacArthur Place, dated April 7, 1998, and recorded on April 9,
1998, as Instrument No. 19980210010 in the office of Orange County
Recorder, as further amended by that Third Amendment to Master
Declaration of Covenants, Conditions, Easements and Restrictions
MacArthur Place, Santa Ana, California, dated April 14, 1998, and
recorded on April 15, 1998 as Instrument No. 19980222443 in the
office of Orange County Recorder, as further amended by that
certain Fourth Amendment to Master Declaration of Covenants,
Conditions, Easements and Restrictions MacArthur Place, Santa Ana,
California, recorded on February 14, 2000 as Instrument No.
2000080364 in the office of Orange County Recorder (collectively,
the "Master OCRs") . The Master OCRs refer to certain rights of the
City in enforcing certain provisions of the Master CCRs.
9. After 1988, various parcels comprising MacArthur
Place were sold to separate private entities. Lots 1 through 4 of
Tract 13802 came .into the ownership of MacArthur Partners, a
California limited partnership ("MacArthur Partners") Lots 5 and
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7 and the Emerson Parcel came into the ownership of MacArthur Place
LLC, a California limited liability Company ("MacArthur LLC'"). Lot
6, which is improved with an office building, came into the
ownership of Brookfield Imperial, Inc., a California corporation,
and as of the date of this Agreement is owned by an entity commonly
referred to as Lend Lease.
10. On January 17, 1992, BGS and MacArthur Partners
entered into that certain Parking License Agreement, recorded on
November 25, 1992 as Instrument No. 92-812883 in the office of
Orange County Recorder, as amended by that certain First Amendment
to Parking License Agreement, dated May 3, 1993, recorded on July
1, 1993, as Instrument No. 93-0442416 (collectively, the "Parking
License Agreement"). Paragraph 9 of the Parking License Agreement
provides that the Parking License Agreement automatically
terminates if the City has not approved the Parking License
Agreement within one hundred eighty (180) days after recordation of
the Parking License Agreement. City represents and warrants that
the City did not receive a request. for. City approval of the Parking
License Agreement within the foregoing described one hundred eighty
(180) day period.
11. On October 28, 1992, BGS and MacArthur Partners,
entered into that certain Assignment of Development Rights,
recorded on November 25, 1992, as Instrument No. 92-812887 in the
office of the Orange County Recorder, and re -recorded as Instrument
No. 93-0162935 in the office of the Orange County Recorder (the
"Assignment of Rights Re Lots 1-411), pursuant to which MacArthur
Partners was purportedly assigned all of BGS's right, title, and
interest that relate to Lots 1, 2, 3, and 4, in and to the
Development Agreement, SD Plan No. 43, and DDA to the extent BGS
was legally entitled to make such an assignment.
12. On February 10, 1998, First American, as Buyer, and
MacArthur LLC, as Seller, entered into that certain Purchase and
Sale Agreement and Joint Escrow Instructions ("Purchase Agreement")
pursuant to which First American acquired fee title to all of the
portions of the MacArthur Place Site owned by MacArthur LLC, namely
Lot 5, Lot 7, and all of the Emerson Parcel (collectively, "First
American Acquisition Area").
13. In light of the subdivision of MacArthur Place and
in view of the fact that MacArthur Place would not be developed by
a single private development entity but rather by multiple,
unrelated private entities (including First American), on April 6,
1998 the City, First American., and MacArthur LLC entered into that
certain Project Im lementation Agreement to identify and allocate
to First American, with respect to the First American Acquisition
Area, certain rights and obligations under and pursuant to the
Development Agreement and the various agreements previously entered
into by and between, or by and among, the City and various private
parties pertaining to the development of MacArthur Place, with the
right of First American to assign, from time to.time and more than
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one time, such rights and obligations to any third party or third
parties, as more particularly described in that agreement.
14. The DDA was terminated as to the First American
Acquisition Area pursuant to and subject to the terms of that
certain. Termination Agreement by and between Agency and MacArthur
LLC, dated April 7, 1998 and recorded on April 9, 1998 as
Instrument No. 19980210008 in the office of the Orange County
Recorder ("DDA Termination Agreement"). Pursuant to the DDA
Termination Agreement, the DDA has no further force or effect as to
the First American Acquisition Area. All references to the DDA in
the Existing Documents shall, as applied to the First American
Acquisition Area, be deemed deleted from the Existing Documents and
the Existing Documents, as applied to the First American
Acquisition Area, shall be read and interpreted without reference
to the DDA.
15. On April 9, 1998, First American and MacArthur Place
LLC closed escrow effecting the conveyance of the First American
Acquisition Area to First American. Shortly thereafter, First
American, as contemplated by the Project Implementation Agreement,
closed an, escrow that conveyed the following two portions of the
First American Acquisition Area to third parties: Lot 5
(hereinafter referred to as the "Third Party Conveyance Area") and
a portion of Lot 7 (such portion hereinafter referred to as the
"Third Party Conveyance Area [License Map]") (collectively, the
"Third Party Conveyance Areas"). The foregoing two escrows are
hereinafter referred to as the "Escrows."' The First American
Acquisition Area and the Third Party Conveyance Areas are shown on
the site map attached hereto as Exhibit B-2.
16. On August 17, 1998, City and First American entered
into that certain Amendment No. 1 to Project Implementation
Agreement.
17, On May 7, 1999, City and First American entered into
that certain Amendment No. 2 to Project Implementation Agreement.
18. On June 21, 1999, by Ordinance No. NS-2390, the City
approved and adopted Amendment No. 1 to SD Plan. No. 43. SD Plan
No. 43 as amended is hereinafter referred to as "SD-43."
19. The First American Acquisition Area excluding the
Third Party Conveyance Areas is referred to herein as the "First
American Project Site." Since its acquisition of the First
American Acquisition Area and concurrent conveyance of the Third
Party Conveyance Areas as described in Recital A--15, First American
has proceeded to develop a portion of the First American Project
Site. As of the Effective Date of this Agreement, First American
has constructed and occupied three (3) office buildings with a
cumulative square footage of approximately 210,000 square feet.
The portion of the First American Project Site where the three (3)
existing buildings are located is referred to hereinafter as the
"Existing First American Development Site." The portion of the
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First American Project Site excluding the Existing First American
Development Site is referred to herein as the "Future First
American Development Site." The two components comprising the
First American Project Site -- the Existing First American
Development Site and the Future First American Development Site --
are shown on the site map attached hereto as Exhibit B-1.
20. SD-43, Development Agreement, EIR, City-BGS
Implementation Agreement, and Master CCRs are hereinafter
collectively referred to as the "Applicable Documents."
B. First American and City now mutually desire to amend and
restate the PIA as set forth in this Agreement for the purpose of
updating the PIA in light of the close of the Escrows that (i)
confirmed selection of one of the two transaction options permitted
by the Agreement, (ii) defined the precise portion of MacArthur
Place that First American acquired, and (iii) defined the area
within MacArthur Place where First American's project could occur.
C. The parties hereto, by this Agreement, expressly do not
intend to modify any existing document or agreement other than to
amend and restate the PTA.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing Recitals,
and the mutual covenants and promises hereinafter contained, and
for good and valuable consideration, the receipt and sufficiency is
hereby acknowledges, the parties hereto agree as follows;
1. Recitals Incorporated; Agreement Supersedes „PIA. The
foregoing Recitals are incorporated herein and made a part hereof.
This Agreement supersedes and replaces the PTA.
2. DDA Termination. Pursuant to the DDA Termination
Agreement, the Agency terminated the DDA as to the First American
Acquisition Area. Notwithstanding the termination of the DDA, the
City-BGS Implementation Agreement shall remain in full force and
effect and City expressly waives its right under Section 11 of the
City-BGS Termination Agreement to terminate the City-BGS
Implementation Agreement.
3. First American Permitted Successor Under Development
Agreement. City acknowledges and agrees that First American, with
respect to the First American Acquisition Area, is a permitted
successor to the interest of BGS under the Development Agreement
and the City-BGS Implementation Agreement. This Agreement
implements First American's rights and obligations under the
Development Agreement with respect to the First American
Acquisition Area. City agrees that (i) any amendment to the
Development Agreement and (ii) any termination of the Development
Agreement pursuant to Section 4(e) of the Development Agreement,
shall not be effective as to First American Acquisition Area, nor
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shall affect First American's rights and obligations under the
Development Agreement as set forth herein, unless such amendment or
termination is approved in advance in writing by First American in
its sole, absolute, and arbitrary discretion.
4. Separate Development; Parcels. The following parcels,
regardless of the ownership of such parcels, shall be treated by
the parties hereto as separate and divisible development sites (as
such parcels may be modified by lot line adjustment, parcel/tract
map, merger, or any other process for modifying boundary lines or
creating new parcels) for the purpose of interpreting and applying
the Applicable Documents and the rights and obligations thereunder
as allocated by this Agreement: (a) First American Project Site
(including the Existing First American Development Site and Future
First American Development Site), and (b) the Third Party
Conveyance Areas (including the Third Party Conveyance Area and the
Third Party Conveyance Area [License Map]).
5. First American's Rights and Obligations.
a. Out of the total building square footage entitlement
for MacArthur Place of 4.1 million square feet set forth in the
Applicable Documents, First American has the right, but not the
obligation, in one or more phases and from time to time, in
accordance with plans approved by the City, to construct on the
First American Acquisition Area a cumulative total of 1,647,000
square feet of gross building area (excluding subterranean and
above --ground parking.structures) and related on -site improvements
and amenities (the "First American Acquisition Area Project"),
provided that First American complies with the requirements
pertaining to off -site improvements set forth in subparagraph e of
this Paragraph 5. The foregoing shall not be interpreted as a cap
on the development of building square footage otherwise permitted
under the Applicable Documents. With respect to the cumulative
total of 1,647,000 square feet of gross building area (excluding
subterranean and above -ground parking structures) referred to
above, the parties acknowledge and agree as follows:
(1) First American, concurrent with the conveyance
of the Third Party Conveyance Areas, assigned
certain rights to the Third Party Conveyance
Area pursuant to that certain Assignment and
Assumption Agreement, dated April 14, 1998, by
and between First American, as assignor, and
Imperial Promenade Associates LLC ("Imperial
Promenade"), as assignee (the "First American --
Imperial Promenade Assignment"), relevant
provisions of which are set forth in Exhibit D
hereto, and Imperial Promenade or its
successor has obtained approval of its
development plans from the City for, and has
commenced construction of, up to but not
exceeding 425,000 square feet of building
square footage.
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(2) First American, concurrent with the conveyance
of the Third Party Conveyance Areas, assigned
certain rights to the Third Party Conveyance
Area [License Map] pursuant to that certain
Assignment and Assumption Agreement, dated
April. 14, 1998, by and between First American,
as assignor, and MMN Development Company, LLC
("MMN Development") as assignee (the "First
American-MMN Assignment"), relevant provisions
of which are set forth in Exhibit E hereto.
(3) Within the Existing First American Development
Site, First American has constructed
approximately 210,000 square feet of building
square footage.
(4) First American has the right but not the
obligation to construct on the Future First
American Development Site up to but not
exceeding the amount of building square
footage remaining out of the total of
1,647,000 square feet after subtracting the
building square footages described in each of
the following three clauses (a), (b), and (c):
(a) the building square footage developed on
the Third Party Conveyance Area [approximately
425,000 square feet];
(b) the building square footage developed on
the Existing First American Development Site
[approximately 210,000 square feet], and
(c) one of the following (i) , (ii) , or (iii) ,
as applicable: (i) the building square
footage developed on, or in the process of
being developed on pursuant to actual
construction occurring on. the Third Party
Conveyance Area [License Map], or (ii)
pursuant to final building plans approved by
the City the building square footage to be
developed on the Third Party Conveyance Area
[License Map], or (iii) if neither of the
foregoing (i) or (ii) are applicable, the
building square footage assigned to the Third
Party Conveyance Area [License Map] as set
forth in Exhibit E hereto.
b. As used herein, First American's existing and future
development of the First American Project Site shall be referred to
as the "First American Project." First American's development of
the 210,000 square feet on the Existing First American Development
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Site is hereinafter referred to as "First American. Project Phase
1."
C. First American shall have the benefits of the
entitlements under the Development Agreement with respect to the
First American Acquisition Area, as implemented pursuant to this
Agreement, through January 4, 2008.
d. Approval of a site plan for any phase of the First
American Project by the City's Planning Commission constitutes
(upon expiration of the applicable appeal period for the Planning
Commission approval, or, if the Planning Commission's approval is
appealed, the successful conclusion of all such appeals) approval
of that site plan for that phase of the First American Project by
the City, including but not limited to any rights of approval City
may have under the Applicable Documents.
e. The complete and exclusive obligations for off --site
improvements including the EIR Mitigation Measures (collectively,
hereinafter, the "Off -Site Improvement Obligations") that are
allocated to the first 1,647,000 square feet of building square
footage on the First American Acquisition Area under the Applicable
Documents are those, and only those, Off -Site Improvement
Obligations shown on Exhibit C under the "Developer" column,
subject to the provisions of subparagraph (3) of this subparagraph
e (hereinafter the "First American Acquisition Area Off -Site
Improvement Obligations").
(1) As shown in Exhibit C the allocation of the
First American Acquisition Area Off -Site Improvement Obligations
for particular levels or phases of development are determined by
the cumulative square footage of buildings [as used herein the term
"buildings" does not include subterranean and above -ground parking
structures] (the "Project Square Footage") developed on the First
American Acquisition Area. There are four (4) levels of
development ("Level" or "Levels," as appropriate) based on
cumulative Project Square Footage set forth in Exhibit C:
(a) Level I - Level I sets forth the First
American Acquisition Area Off -Site
Improvement Obligations allocated to the
first 810,000 square feet of buildings
developed on the First American
Acquisition Area.
(b) Level II - Level TI sets forth the First
American Acquisition Area Off -Site
Improvement Obligations for the next
following 240,000 square feet of
buildings wherever occurring on the First
American Acquisition Area.
(c) Level III - Level III sets forth the
First American Acquisition Area Off -Site
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Improvement Obligations for the next
following 300,000 square feet of
buildings wherever occurring on the First
American Acquisition Area.
(d) Level IV - Level IV sets forth the First
American Acquisition Area Off -Site
Improvement Obligations for the next
following 297,000 square feet of
buildings wherever occurring on the First
American Acquisition Area.
(2) The Level I portion of the First American
Acquisition Area Off -Site Improvement Obligations required to have
been completed or paid for by "Developer" as shown on Exhibit C
have been completed. Before the City will issue a certificate of
occupancy for any building whose square footage causes the
cumulative Project Square Footage of buildings developed on the
First American Acquisition Area to fall within a succeeding Level
(i.e., Levels II through IV), the First American Acquisition Area
Off -Site Improvement Obligations required of "Developer" for that
particular succeeding Level as shown on Exhibit C must have been
completed or paid for by "Developer."
EXAMPLE 41: A cumulative total of 360,000
square feet of building improvements has been
developed on the. First American Acquisition
Area. An additional 140,000 square feet of
building improvements are proposed (i.e., a
cumulative total of 500,000 square feet). No
additional First American Acquisition Area
Off -Site Improvement Obligations are required
for that 140,000 building as it falls within
the Level I Project Square Footage of 810,000
square feet as shown on Exhibit C and the
Level I portion of the First American
Acquisition Area Off -Site Improvement
Obligations that were required to have been
completed or paid for by "Developer" have
already been completed or paid for.
EXAMPLE #2: Assume the cumulative square
footage of buildings developed on the First
American Acquisition Area is 700,000 square
feet. First American or a successor
developer, for a portion of the First American
Acquisition Area, then proposes a 150,000
square foot building. Before City will issue
a certificate of occupancy for that 150,000
square foot building, the Level II portion of
the First American Acquisition Area Off -Site
Improvement Obligations required to have been
completed or paid for by "Developer" as shown
on Exhibit C shall be required to be completed
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because this additional 1.50,000 square feet
will push the cumulative Project Square
Footage beyond 810,000 and into Level II.
(3) Notwithstanding subparagraphs (1) and (2) above
of this subparagraph e, in the event the Project Square Footage as
shown on Exhibit C reaches Level IV, City shall be permitted to
include as additional mitigation a pro-rata fair -share allocation
(the "Pro-Rata Fair -Share Allocation") of the costs of those Level
IV Off -Site Improvement Obligations as shown in the "Other" column
for Level IV on Exhibit "C" (the "Level IV Other Off -Site Items").
The Pro -Bata Fair Share Allocation shall be calculated using a
ratio in which the numerator is the First American Acquisition
Area's contribution to the need for those improvements, and the
denominator is sum of (i) the contribution of the entire MacArthur
Place to the need for those improvements, plus (ii) the
contribution of other sites outside MacArthur Place to the need for
those improvements. The Pro Rata Fair Share Allocation shall be
established by the City at the time the first site plan(s) are
submitted for Level IV, If permitted by the EIR, the City may
adopt alternative mitigation for the Level IV Other Off -Site Items,
in which case the Pro-Rata Fair Share Allocation that is imposed
upon First American, or its successors under this Agreement,
pursuant to this subparagraph (3), shall be the Pro-Rata Fair Share
Allocation, calculated as provided hereinabove, of those
alternative mitigation measures. Notwithstanding the foregoing
language in this subparagraph (3) or anything else in this
Agreement to the contrary:
(a) First American or its successors shall
not be required to expend (or in lieu
thereof be charged) more than Nine
Hundred Thousand Dollars ($900,000)
toward the actual (not estimated) total
cost for all of the following combined:
Level IV of the First American Off -Site
Improvement Obligations, Level IV Other
Off -Site Items, and any Pro-Rata Fair
Share Allocation ("First American Maximum
Level IV Mitigation Requirement"), Upon
expenditure or payment (or combination)
by First American of the First American
Maximum Level IV Mitigation Requirement,
First American shall have satisfied the
First American Acquisition Area Off -Site
Improvement Obligations for Level IV, and
City, in its discretion, shall be
entitled to apply such First American
Maximum Level IV Mitigation Requirement
amount to one or more of the Level IV
mitigation items listed in Exhibit C.
(b) The City and First American, or its
successors under this Agreement, shall be
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permitted to amend SD-43 so as to reduce
the maximum density on the Property and
in conjunction therewith to adopt a
revised mitigation plan pursuant to
appropriate CEQA documentation.
f. Provided that the First American Acquisition Area
Off -Site Improvement Obligations that are required to be completed
or paid for by "Developer" for the particular Level of development
shown on Exhibit C have been completed or paid for in accordance
with the provisions of subparagraph e of this Paragraph 5, City's
review of a request(s) for, and City's issuance of, a
certificate(s) of occupancy for development(s) on the First
American Acquisition Area, including each separate phase or Level
of development as shown on Exhibit C, shall be separate and
distinct from any request (s) for, and issuance of, a certificate (s)
of occupancy pertaining to or related to (i) any other phase or
Level of development of the First American Acquisition Area, (ii)
any phase of the .First American Project, or (iii) any other real
property whether such other real property is within or outside of
MacArthur Place. City acknowledges and agrees that under the
Applicable Documents, a request(s) for, and City's issuance of, a
certificate(s) of occupancy for development occurring on the First
American Acquisition Area, including each separate phase or Level
of development thereon, shall not be affected by, or conditioned
on, the completion or failure to complete on -site or off -site
improvement obligations, or any noncompliance with mitigation
measures or other requirements of the EIR, that pertains to or is
related to (A) any other phase or Level of development of the First
American Acquisition Area or (B) any other real property whether
such other real property is located within or outside MacArthur
Place.
g. (1) Subject to subparagraph (2) below of this
subparagraph g, City shall not, by "Municipal Financings" (as
defined in Section 16 of the Development Agreement) or any other
form of financing or payment for improvements, including but not
limited bond, assessment, tax, fee, or charge (collectively,
"Financings"), impose, either directly or indirectly, on any
portion of the First American Acquisition Area any obligation or
responsibility to pay for the First American Acquisition Area Off -
Site Improvement Obligations through Financings.
(2) Notwithstanding subparagraph (1) above of this
subparagraph g, City reserves the right, consistent with the terms
of this Agreement, to impose financial obligations on the First
American Acquisition Area if the following two criteria are met:
(A) City is permitted to impose such financial obligations pursuant
to the Development Agreement; and (B) such financial obligation(s)
is/are imposed on a City-wide basis or, if imposed on less than a
City-wide basis, are imposed on all non --residentially zoned
properties in. the City.
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h. City acknowledges and agrees that First American has
satisfied all obligations First American has under Section 4(c) of
the City-BGS Implementation Agreement.
6. No Defaults Applicable to First American Acquisition Area
or First American Project. City represents and warrants that (i)
there are no defaults under the Applicable Documents applicable to
the First American Project or First American Acquisition Area or
any development undertaken on the First American Acquisition Area
as of the date of this Agreement; (ii) the Applicable Documents
shall not be terminated by City, to the extent City may have such
right of termination, upon the occurrence of a default by any
person, firm, or entity, without notice to First American and the
expiration of all applicable cure periods, and any such termination
shall not terminate such Applicable Documents) with respect to the
First American Project Site and (iii) First American shall only be
liable for or responsible for any defaults occurring under the
Applicable Documents with respect to the First American Project
Site from and after the date of this Agreement.
7. Cooperation Agreement. City acknowledges and agrees that
City has entered into a cooperation agreement with the Agency (the
"Cooperation Agreement") to effect the Agency's payment to the City
of the following two fees that otherwise would be the obligation of
First American for the First American Project Phase 1: (i) the
Transportation System Improvement Area fee ("TSIA Fee"), and (ii)
the Fire Department Facilities fee ("FDF Fee"') . City shall not use
the Agency's payment for any other purpose than payment of the TSIA
Fee and FDF Fee for the First American Project Phase 1. City
further acknowledges and agrees that (A) First American shall be an
express third party beneficiary of the Cooperation Agreement, and
(B) the City's entering into the Cooperation Agreement and the
benefits to First American resulting from that Cooperation
Agreement are a material inducement to First American to enter into
this Agreement. City agrees that it shall not impose on First
American any obligation for payment of the TSIA Fee and FDF Fee
that Agency is obligated to pay to City pursuant to the Cooperation
Agreement even if (A) Agency fails to make any payment(s) to City
or (b) the Cooperation Agreement is modified, amended, or
terminated.
8. Assignment and Transfer.
a. First American, without the consent of the City,
shall be permitted, from time to time and one or more times, to
transfer or assign all or a portion of its rights and obligations
under this Agreement to an affiliated or related transferee or
assignee, and with respect to such transfer or assignment; (i) an
assignment and assumption agreement shall not be required to be
provided to the City, and (ii) such affiliated or related
transferee or assignee shall be entitled to receive the financial
benefit resulting from the Cooperation Agreement referenced in
Paragraph 7 above.
394/016555-0002/3124650.19 05/26/00 - 12 "
b. First American shall be permitted, from time to time
and one or more times, without the consent of City, to transfer or
assign all or a portion of its rights and obligations under this
Agreement to a nonaffiliated or non -related transferee or assignee
as long as First American and such transferee or assignee provide
to City a signed assignment and assumption agreement pursuant to
which the transferee or assignee assumes those obligations of First
American identified in such assignment and assumption agreement;
provided, however, that the transferee/assignee shall not be
entitled to receive the financial benefit resulting from the
Cooperation Agreement referenced in Paragraph 7 above.
C. Upon any transfer or assignment effected consistent
with the terms of this Agreement, City shall look solely to the
transferee or assignee for the performance of the obligations
transferred or assigned.
d. City confirms and ratifies that it previously
approved First American's transfer of the Third Party Conveyance
Area to Imperial Promenade, and hereby approves First American's
transfer of the Third Party Conveyance Area [License Map] to MMN
Development. Pursuant to the foregoing transfers, Imperial
Promenade and MMN Development, with respect to their respective
parcels, shall be deemed successors to First American under the
terms of this Agreement.
9. Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
the parties hereto and each of them.
10. City Waiver of Defense. Notwithstanding any .legal
authorities to the contrary concerning the doctrines of waiver and
estoppel as applied to public entities and the actions or inactions
of public agencies or public agency officers and officials, City
agrees that it shall be estopped from denying the validity of this
Agreement and City knowingly and expressly waives any such claim or
defense.
11. Waiver; Approvals. No delay or omission in the exercise
of any right or remedy by a nondefaulting party on any default
shall impair such right or remedy or be construed as a waiver. A
party's consent to or approval of any act by any other party
requiring the party's consent or approval shall not be deemed to
waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by any party of any
default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this
Agreement.
12. Rights and Remedies Cumulative. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or
more of its rights or remedies shall not preclude the exercise by
394/016555-0002/3124650.19 05/26/00 - 13 -
it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
13. Litigation Matters. The Municipal and Superior Courts of
the State of California in the County of Orange shall have the
exclusive jurisdiction of any litigation between the parties
arising out of this Agreement. This Agreement shall be governed
by, and construed under, the laws of the State of California. In
addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct, or remedy any
default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain declaratory or injunctive
relief, or to obtain any other remedy consistent with the purposes
of this Agreement. The rights and remedies of the parties are
cumulative and the exercise by any party of one or more of such
rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the
same default or any other default by any other party. First
American shall indemnify the City from any lawsuit brought within
the applicable statute of limitations by any direct assignee of
First American referred to in this Agreement, but only as to any
cause of action in such lawsuit that specifically asserts that such
direct assignee's development rights, as existing on the Effective
Date of this Agreement, were detrimentally affected by City and
First American having entered into this Agreement. Service of
process on the public entity parties to this Agreement shall be
made in the manner required by law for service on a public entity.
Service of process on the private entity parties to this Agreement
shall be made in any manner permitted by law and shall be effective
whether served within or outside of California.
14. Interpretation; Severability, The terms of this Agreement
shall be construed in accordance with the meaning of the language
used and shall not ,be construed for or against either party by
reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply. The Paragraph/Section
headings are for purposes of convenience only, and shall not be
construed to limit or extend the meaning of this Agreement. Each
provision of this Agreement shall be severable from the whole. If
any provision of this Agreement shall be found contrary to law, the
remainder of this Agreement shall continue in full force.
15. Notices. Unless otherwise provided herein, all notices
required to be delivered under this Agreement or under applicable
law shall be (i) personally delivered, or (ii) delivered by United
States mail, prepaid, certified, return receipt requested, or (iii)
delivered by reputable document delivery service that provides a
receipt showing date and time of delivery, or (iv) by telecopier or
facsimile transmission provided the original of the notice is
concurrently delivered by one of the methods prescribed in clauses
(i) through (iii). Notices personally delivered or delivered by a
document delivery service or shall be effective upon, receipt.
Notices delivered by mail shall be effective at Noon on the third
business day following dispatch. Notices delivered by telecopier/
394/016555-0002/3124650.19 05/26/00 - 1 4 -
facsimile transmission shall be effective upon receipt provided
there is concurrently delivery of the original as prescribed in
clause (iv) of the preceding sentence. Notices shall be delivered
to the following addresses:
To City: City of Santa Ana
Clerk of the Council
20 Civic Center Plaza, 8th Floor
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Telecopier/facsimile No:
(714) 647--6956
With a copy to: City Attorney's Office
City of Santa Ana
20 Civic Center Plaza, 7th Floor
Mail Station 29 - P.O. Box 1988
Santa Ana, CA 92702
Attn: City Attorney
Telecopier/facsimile No:
(714) 647-6515
To First American: The First American Corporation
1 First American Way
Santa Ana, CA 92707
Attn: Mr. Parker S. Kennedy,
President,
and
Mr. Gerald M. Lutzky,
National Director of Facilities
Telecopier/facsimile No:
(714) 800-3353
With a copies to: Lutzky Associates
Development, L.P.
2915 Redhill Avenue
Suite C-104
Costa Mesa, CA 92626
Attn: Mr. Richard C. Lutzky
Telecopier/facsimile No:
(714) 641-6991
and Allen, Matkins, Leck, Gamble &
Mallory LLP
1.8400 Von Karman Avenue
4th F1.
Irvine, CA 92715
Attn: Mr. John C. Gamble, Esq.
Telecopier/facsimile No:
(714) 553-8354
394/016555-0002/3124650.19 05/26/00 - 1 5--
Changes in the address to be used for receipt of notices shall be
effected in accordance with this Paragraph.
16. Corporate Authority. The person(s) executing this
Agreement on behalf of the parties hereto warrant that (i) such
party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party has taken such
formal action of its governing board or authority as is required by
law to bind such party, and that such party is formally bound to
the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other agreement to
which said party is bound.
17. Entire Agreement; Amendments. It is understood that there
are no oral agreements between the parties hereto concerning the
subject matter hereto, and this Agreement supersedes any and all
previous understandings, if any, between the parties concerning the
subject matter hereof. This Agreement may be amended at any time
by the consent of all the parties by an instrument in writing;
provided, however, that the consent of a party hereto shall not be
required for amendments that do not materially affect the rights or
obligations of such party.
18. Counterparts. This Agreement may be executed in
Counterparts which, when all the parties hereto have signed this
Agreement, shall constitute an original.
19. Effective Date. The Effective Date of this Agreement
shall be latest of the dates set next to the signatures of the
parties below when all the parties hereto have signed this
Agreement, and such date shall be inserted into the preamble of
this Agreement.
[end - signature page follows]
394/016555-0002/3124650.19 05/26/00 - 1 6 -
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the Effective Date.
"CITY"
CITY OF SANTA ANA, a charter
city a nd,"'1 cipa1 oration
By:
�lxyor
ATTEST:
n's tol ep)A'ent
City Clerk
APPROVED:
Joge,ph Fletcher""",
City 'I, A'tt'
[signatures continued on next page]
394/016555-0002/3124650,19 05/26/00 -17-
[Continuation of signatures for
Amended and Restated Project Implementation Agreement]
THE FIRST AMERICAN CORPORATION,
a California corporation
UBy.
Parker rke��rVS. ennedy
President
By;
Mark R Arnesen
Secretary
[end of signatures]
394/016555-0002/3124650.19 05/26/00 - 18 -
EXHIBIT "A"
MACARTHUR PLACE SITE MAP
SEE FOLLOWING PAGE
394/016555-0002/3124650.19 05/26/00 - I -
EXHIBIT "Bl"
SEE FOLLOWING PAGE
394/016555-0002/3124650.19 05/26/00 - 1 -
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EXHIBIT "B2"
SEE FOLLOWING PAGE
394/016555-0002/3124650,19 05/26/00 - I-
I
EXHIBIT B-2
EXHIBIT "C"
FIRST AMERICAN ACQUISITION AREA OFF -SITE IMPROVEMENTS
SEE FOLLOWING TWO PAGES
394/016555-0002/3124650.19 05/26/00 "1.-
EXHIBIT C
LEVEL I -- 810,000 square feet
Cost Estimate
I.D. #
Description of Improvements
Developer
Other
1A2
Provide eastbound widening on MacArthur to form the
160,000
continuation of the number 3 eastbound lane, east of
Hutton Center Drive directly into the southbound SR-55
on-raTp eliminating the current "pinch".
1C
Complete Columbine widening to four lanes including landscaped
340,000
median, street lights, sidewalk and parkway landscaping.
1N*
At southeast corner Main/MacArthur intersection, add a northbound
200,000
right turn lane. Right-of-way and construction costs are to be shared
with Hutton Center Development.
2A1 & 2A2
Route the southbound SR-55 off -ramp, desiring to travel
300,000
west on MacArthur Blvd. through an enlarged signalized inter-
section rather than along the existing right -turn diagonal roadway.
These improvements will require the addition of two lanes and
the modification of the traffic signal. These improvements will
require Caltrans a roval.
2D
Widen MacArthur Blvd. to add a third westbound lane between
400,000
the southbound SR-55 Freeway off -ramp and the full width
improvement east of Imperial Promenade. Resurface/reconstruct the
westbound lanes on MacArthur Blvd. between Main Street and the
southbound SR-55 off -ramp per the material report. This work must
be coordinated with Caltrans and may need to be constructed
in two hales.
1L
At SR-55 northbound off -ramp to Dyer add a third lane to off -ram
100,000
On -site improvements:
1,427,530
Cap First American Way with asphalt concrete between Imperial
Promenade and existing terminus. Construct storm drain from Orange
County Flood Control Channel to Columbine and between First
American Way and Orange County Flood Control Channel; reactivate
traffic signal at First American Way and Imperial Promenade including
loops on west -bound approach, signal modification to provide
northbound right turn overlap with westbound left turn and restriping;
construct First American between existing terminus and Columbine.
The construction of First American Way shall include four lanes,
landscaped medians, street lights, sidewalks and parkway landscaping.
SUBTOTAL
2,367,530
560,000
394/016555-0002
72059.05 a05130100
LEVEL II — 240,000 square feet
1K
At Halladay/Dyer intersection, convert existing westbound right turn
200,000
lane to a third westbound through lane at intersection
1H*
At southwest corner Main/MacArthur intersection, add an eastbound
250,000
120,000
ri ht-turn lane and modify traffic signal as needed
SUBTOTAL
450,000
120,000
LEVEL III — 300,000 square feet
1J
At intersection of Main and Dyer convert existing northbound right -turn
lane to a through lane.
300,000
SUBTOTAL
300,000
LEVEL IV -- 297,000 square feet***
3A****
Construct Alton overpass at SR-55 and widen to our lanes between
Standard and Main Street.
12,000,000
3B1
Widen Halladay to four lanes between Columbine and Alton.
7,500,000
3B2**
Install a traffic signal at Halladay and Alton
120,000
3C****
Widen Main Street to six lanes between Columbine and Warner.
1,700,000
3D****
Widen Dyer (southside) to provide three lanes between Halladay
and Main.
2,100,000
**
Install traffic signals at the following impacted intersection when
warranted:
MacArthur Place (formerly Majestic Drive) @ Imperial Promenade
MacArthur Place (formerly Majestic Drive) @ Majestic East
Columbine Drive @ Hallada Street
360,000
SUBTOTAL
480,000
23,300,000
TOTAL
3,297,530
24,280,000
* Denotes fee in lieu of constructing improvement or not to exceed cost to do as
agreed between Developer and City.
** = Maximum contribution per intersection will be $120,000
*** = Maximum Level IV "Developer" contribution is $900,000 as defined in main text at Paragraph
5.e(3).
**** = Projects are area -wide mitigation measures and are not part of this project. The City intends that
these projects be completed about the time the third phase street improvements are completed but
these additional projects are not mitigation measures for the MacArthur Place project. (EIR, Table
1, Note (c).)
394/016555-0002
72059.05 a05130100
EXHIBIT I'D"
ASSIGNED OBLIGATIONS -- IMPERIAL PROMENADE
First American covenants that the First American -Imperial Promenade
Assignment contains the indented language shown below with respect
to the Third Party Conveyance Area. In the First American -Imperial
Promenade Assignment, the Third Party Conveyance Area is referred
to as "Lot 51" and the Third Party Conveyance Area (License Map) is
referred to as the "License Parcel." The additional language shown
below in brackets is included for clarification purposes.
Associates' [i.e., Imperial Promenade's] development of
Lot 5, for the purposes of the [Project Implementation]
Agreement and this Assignment, shall be a "Level I"
project. The maximum building square footage for Level
I stated in the [Project Implementation] Agreement is
810,000 square feet. Of the Level I maximum building
square footage of 810,000 square feet, Associates shall
be permitted a maximum building square footage for Lot 5
of 425,000 square feet, and a maximum building square
footage of 162,000 square feet has been allotted to the
License Parcel. The foregoing maximum building square
footages for Lot 5 and the License Parcel are . . .
subject to adjustment with the maximum building square
footage for one increasing and the maximum building
square footage for the other decreasing, up to a maximum
adjustment of 50,000 square feet. . . . The remainder of
223,000 building square feet for Level I shall remain in
the control of First American for development outside of
Lot 5 and the License Parcel (with the right of First
American to assign all or a portion of such 223,000
building square feet).
The Off -Site Improvement Obligations set forth in Exhibit
"C" to the [Project Implementation] Agreement that are
listed in the "Developer" column for Level I shall be the
obligation of First American and not the obligation of
Associates . . . . If Associates exceeds the maximum
building square footage on Lot 5 of 425,000 square feet
as may be increased in accordance with [the adjustment
set forth above] . . . and such excess square footage on
Lot 5 results in the imposition of any Off -Site
Improvement Obligations that are not listed on Exhibit
"C" to the [Project Implementation] Agreement for Level
I under the "Developer" column, such Off -Site Improvement
Obligations shall be the obligation of. Associates and
shall not be the obligation of First American.
[end of Exhibit I'D" ]
394/016555-0002/3124650,19 05/26/00 - 1 -
EXHIBIT "E"
ASSIGNED OBLIGATIONS -- MMN DEVELOPMENT
First American covenants that the First American-MMN Development
Assignment contains the indented language shown below with respect
to the Third Party Conveyance Area (License Map). In the First
American-MMN Development Assignment, the Third Party Conveyance
Area (License Map) is referred to as the "License Parcel" and the
Third Party Conveyance Area is referred to as "Lot 5." The
additional language shown below in brackets is included for
clarification purposes.
MMN's development of the License Parcel, for the purposes
of the [Project Implementation] Agreement and this
Assignment, shall be a "Level I" project. The maximum
building square footage for Level I stated in the
[Project Implementation] Agreement is 810,000 square
feet. Of the Level I maximum building square footage of
810,000 square feet, MMN shall be permitted a maximum
building square footage for the License Parcel of 162,000
square feet, and a maximum building square footage of
425,000 square feet has been allotted to Lot 5. The
foregoing maximum building square footages for the
License Parcel and Lot 5 are . . . subject to adjustment
with the maximum building square footage for one
increasing and the maximum building square footage for
the other decreasing, up to a maximum adjustment of
50,000 square feet. . . . The remainder of 223,000
building square feet for Level I shall remain in the
control of First American for development outside of Lot
5 and the License Parcel (with the right of First
American to assign all or a portion of such 223,000
building square feet).
The Off -Site Improvement Obligations set forth in Exhibit
"C" to the [Project Implementation] Agreement that are
listed in the "Developer" column for Level I shall be the
obligation of First American and not the obligation of
MMN. . . . If MMN exceeds the maximum building square
footage on the License Parcel of 162,000 square feet as
may be increased in accordance with [the adjustment set
forth above] . . . and such excess square footage on the
License Parcel results in the imposition of any Off -Site
Improvement Obligations that are not listed on Exhibit
"C" to the [Project Implementation] Agreement for Level
I under the "Developer" column, such Off -Site Improvement
Obligations shall be the obligation of MMN and shall not
be the obligation of First American.
[end of Exhibit "Ell]
394/016555-0002/3124650.19 05/26/00 - 1 -