HomeMy WebLinkAbout75A - CREVIER DEVELOPMENT AGMT.
REQUEST FOR
COUNCIUAGENCY
ACTION
MEETING DATE:
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CLERK OF COUNCIL USE ONLY:
JULY 6, 2004
TITLE:
APPROVED
0 As Recommended
D As Amended
0 Ordinance on 1 st Reading
D Ordinance on 2nd Reading
0 Implementing Resolution
0 Set Public Hearing For
PUBLIC HEARING - DISPOSITION AND
DEVELOPMENT AGREEMENT WITH
DONALD J. CREVIER, AS TRUSTEE OF
THE DONALD J. CREVJ:ER TRUST,
CREVIER MOTORS, INC., A
CALIFORNJ:A CORPORATION, AND
CREVIER LEASJ:NG COMPANY, INC., A
v ::;5 CORPORAUOH - CREVUR
CITY MANAGER XECUTIVE DIRECTOR
CONTINUED TO
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FILE NUMBER
RECOMMENDED ACTION
ITY COUNCIL ACTION
Adopt a resolution making certain findings with respect to the
consideration to be received by the Community Redevelopment Agency
pursuant to a Disposition and Development Agreement between the Community
Redevelopment Agency and Donald J. Crevier, as Trustee of the Donald J.
Crevier Trust, Crevier Motors, Inc., a California corporation, and
Crevier Leasing Company, Inc., a California corporation, for the sale of
certain real property in the South Main Street Redevelopment Project Area
and approving the sale of said real property upon the terms and
conditions contained in that Agreement.
COMMUNJ:TY REDEVELOPMENT AGENCY ACTJ:ON
Adopt a resolution approving a Disposition and
Donald J. Crevier, as Trustee of the Donald
Motors, Inc., a California corporation, and
Inc., a California corporation (Developer).
Development Agreement with
J. Crevier Trust, Crevier
Crevier Leasing Company,
75A-1
DDA with Donald J. Crevier, as Trustee of the
Donald J. Crevier Trust, Crevier Motors, Inc.,
A California Corporation, and Crevier Leasing
Company, Inc., a California Corporation -
Crevier BMW Dealership
July 6, 2004
Page 2
COMMUNITY REDEVELOPMENT AND HOUSING COMMISSJ:ON RECOMMENDATION
1.
Recommend that the City Council adopt a resolution making certain
findings with respect to the consideration to be received by the
Community Redevelopment Agency pursuant to a Disposition and
Development Agreement between the Community Redevelopment Agency and
Donald J. Crevier, as Trustee of the Donald J. Crevier Trust,
Crevier Motors, Inc., a California corporation, and Crevier Leasing
Company, Inc., a California corporation, for the sale of certain
real property in the South Main Street Redevelopment Project Area
and approving the sale of said real property upon the terms and
conditions contained in that Agreement.
2.
Recommend that the Community Redevelopment Agency adopt a resolution
approving a Disposition and Development Agreement with Donald J.
Crevier, as Trustee of the Donald J. Crevier Trust, Crevier Motors,
Inc., a California corporation, and Crevier Leasing Company, Inc., a
California corporation (Developer).
By a vote of 7:0 at its Regular Meeting of June 15, 2004.
DJ:SCUSSION
The Community Redevelopment Agency has embarked on a business retention
and expansion effort for the Santa Ana Auto Mall. There are currently
nine new car dealers in the mall generating over $3.7 million in annual
sales tax revenue for the City's General Fund. Given industry trends
over the past several years favoring new car dealer consolidations, it
has become necessary to provide larger lots to accommodate increased car
inventories for dealerships. In May 2003, the Agency issued tax
allocation bonds for land acquisition, relocation and site preparation
costs for future redevelopment purposes. To date, the Agency has
acquired properties from the Wyne-Snow Industrial Park Partnership and
AP-Edinger LLC totaling 4.23 acres along the Edinger Avenue frontage
(1941-2009 E. Edinger Avenue), land that is now proposed to be used to
facilitate dealership expansion.
75A-2
DDA with Donald J. Crevier, as Trustee of the
onald J. Crevier Trust, Crevier Motors, Inc.,
California Corporation, and Crevier Leasing
Company, Inc., a California Corporation -
Crevier BMW Dealership
July 6, 2004
Page 3
The subject actions will enable the expansion of the existing BMW
Dealership at the Santa Ana Auto Mall by Donald J. Crevier, as Trustee of
the Donald J. Crevier Trust (Developer) (Exhibit I). Crevier BMW, one of
four BMW dealerships in Orange County, is currently ranked first in "New
Car Sales" in the nation and holds the title of number one in the nation
for "Certified Pre-Owned Sales". The Santa Ana dealership with 267
existing employees expects to add 200 employees upon completion of the
expansion, while creating 175 construction jobs during build-out. Sales
volumes have nearly doubled from 1993 ($45.8 million) to 1998 ($88.1
million) and more than doubled again from 1998 to 2003 ($233.3 million).
Projected total sales are expected to reach $560 million by 2008.
The proposed Disposition and Development Agreement (DDA) calls for the
eveloper to purchase approximately 4.23 acres or 184,597 square feet of
and from the Agency at $20 per square foot, or $3,691,940. This acreage
includes a 161-square foot parcel located adjacent to the property to be
conveyed. This 161-square foot parcel is addressed in an Option
Agreement referenced in the DDA. The Agency secured this option as part
of the acquisition of property from the Wyne-Snow Industrial Park
Partnership. The 4.23 acres owned by the Agency will be conveyed in two
phases to accommodate the Developer's construction schedule. The Agency
is responsible for conveying a clear and buildable site, and will thus be
providing the Developer with a credit against the purchase price for
demolition of improvements on the property being sold. A reuse analysis
found that the purchase price of $20 per square foot is consistent with
fair market value for clear and buildable land; thus, the Agency is being
fairly compensated for the land.
The Developer received site plan approval from the Planning Commission at
its May 10, 2004 meeting in accordance with Specific Development No. 60
(SD-60), the zoning document that governs the Auto Mall (Exhibit 2). On
June 7, 2004, the City Council received and filed the subject staff
report. The proposed facility consists of approximately 170,066 square
feet of service, sales and office space and a five-level, six-tier,
approximately 730-space parking structure. The parking structure will be
used primarily for the storage of new car inventory. The proj ect is
roposed to be built in three successive phases, each taking
pproximately one year to complete: construction of the Phase I parking
structure is anticipated to commence in August 2004 following conveyance
75A-3
DDA with Donald J. Crevier, as Trustee of the
Donald J. Crevier Trust, Crevier Motors, Inc.,
A California Corporation, and Crevier Leasing
Company, Inc., a California Corporation -
Crevier BMW Dealership
July 6, 2004
Page 4
of the first parcel by the Agency; the new showroom and office area will
be constructed as part of Phase II on the second parcel to be conveyed;
and the new sales, service, parts and office addition to the existing BMW
building will be built in Phase III on Crevier's existing property. The
phasing will allow the dealership to continue its operations without
major disruption to sales and service.
The law requires a public hearing for the purpose of considering the
proposed sale of the property. On June 23 and June 28, 2004,
notification was published in the Orange County Reporter that a summary
report and other documents relating to the sale were available for public
inspection beginning June 23, 2004, and that persons wishing to comment
on this matter may appear at the public hearing or submit written
comments in advance.
CEQA COMPLIANCE
In accordance with the California Environmental Quality Act, the
recommended action is exempt from further review. Categorical Exemption
Environmental Review No. 2003-111a will be filed for this project.
FJ:SCAL J:MPACT
The funds from the sale of the property in the amount of $3,691,940 will
be credited to the South Main Tax Allocation Bonds account (account no.
552-01-5721) and the South Main Operations account (account no. 550-01-
5721) .
APPROVED AS TO FUNDS AND ACCOUNTS:
J!~
P. Reekstin
Executive Director
Community Development
Agency
¡..! R. oloma ~
V"" Execut 'Ne Director
Finance & Management
Services Agency
JPR/VU/SG/mlr
Actions\2004CC\JT CC-CRA - crevierDDA
7-6-04
75A-4
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Exhibit 1
75A-5
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EXHIBIT 2
75A-6
bk:6/30/04
RESOLUTION NO. 2004-049
A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA
MAKING CERTAIN FINDINGS WITH RESPECT TO THE
CONSIDERATION TO BE RECEIVED BY THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA
PURSUANT TO A DISPOSITION AND DEVELOPMENT
AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA ANA, AND DONALD J.
CREVIER, AS TRUSTEE OF THE DONALD CREVIER TRUST,
CREVIER MOTORS, INC., AND CREVIER LEASING COMPANY,
INC., FOR THE SALE OF CERTAIN REAL PROPERTY IN THE
SOUTH MAIN REDEVELOPMENT PROJECT AND APPROVING
THE SALE OF SAID REAL PROPERTY UPON THE TERMS AND
CONDITIONS CONTAINED IN THAT AGREEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA, AS
FOLLOWS:
Section 1: The City Council of the City of Santa Ana hereby finds, determines and
declares as follows:
A. The Community Redevelopment Agency of the City of Santa Ana
(hereinafter referred to as the "Agency") is engaged in activities necessary
to execute and implement the Redevelopment Plan for the South Main
Redevelopment Project.
B. In order to implement the Redevelopment Plan, the Agency has
agreed, subject to the approval of this Council, to sell certain real property in
the Project Area, pursuant to the terms and provisions of that certain
Disposition and Development Agreement (hereinafter referred to as the
"Agreement") between the Agency and Donald J. Crevier, as Trustee of
The Donald Crevier Trust, Crevier Motors, Inc., a Califomia Corporation,
and Crevier Leasing Company, Inc, a California Corporation, which is
attached to the Request for Council/Agency Action submitted in conjunction
with this Resolution, in which said Site, commonly known as 1941-1961 and
2009 East Edinger Avenue and consisting of approximately 4.23 acres, is
further described. This Request for Council/Agency Action and its
attachments are incorporated herein by this reference as though fully set
forth.
C.
The Agreement contains all of the provisions, terms, conditions and
1
75A-7
obligations required by the state and local laws.
D. Donald J. Crevier, as Trustee of The Donald Crevier Trust, Crevier
Motors, Inc, and Crevier Leasing Company, Inc., possess the qualifications
and financial resources necessary to acquire and insure development of the
Site, in accordance with the purpose and objectives of the Redevelopment
Plan.
E. In accordance with the California Environmental Quality Act, the
recommended action is exempt from further review. Categorical
Exemption Environmental Review No. 2003-111 a will be filed for this
project.
F. Pursuant to the provisions of the California Redevelopment Law, the
Agency and the City Council have held a duly noticed joint public hearing on
the proposed sale of the Site pursuant to the Agreement.
Section 2. The City Council has considered all terms and conditions of the
proposed sale and hereby finds and determines that the sale and the redevelopment of
the Site pursuant to the Agreement is the best interests of the City of Santa Ana and the
health, safety and welfare of its residents, and is in accord with the public purpose and
provisions of the applicable state and local laws.
Section 3. The City Council hereby finds and determines that the consideration
for the sale of the Site pursuant to the Disposition and Development Agreement is not
less than the fair reuse value of the Site determined in accordance with the covenants
and conditions governing the sale.
Section 4. The sale of the Site by the Agency to Donald J. Crevier, as Trustee
of The Donald Crevier Trust, Crevier Motors, Inc, and Crevier Leasing Company, Inc.,
upon the terms and conditions contained in the Agreement is hereby approved.
Section 5.
this Resolution.
The Clerk of the Council shall attest to and certify the vote adopting
ADOPTED this
day of
,2004.
Miguel A. Pulido
Mayor
2
75A-8
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES:
Council members:
NOES:
Council members:
ABSTAIN:
Council members:
NOT PRESENT:
Councilmembers:
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of Council, do hereby attest to and certify the attached
Resolution No. ?OO4-049 to be the original resolution adopted by the City Council of the
City of Santa Ana on
Date:
Clerk of Council
City of Santa Ana
3
75A-9
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Executive Secretary
Community Redevelopment Agency of
the City of Santa Ana
20 Civic Center Plaza M-25
P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE § 6103
PRlV A TE DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA, CALIFORNIA
and
DONALD J. CREVIER BMW, AS TRUSTEE OF THE
DONALD CREVIER JRUST,
and
CREVIER MOTORS, INC., A CALIFORNIA CORPORATION,
City of Santa Ana Resolution No. 2004-
Community Redevelopment Agency òfthe
City of Santa Ana Resolution No. -
~
Dated: July 19, 2004
75A
Private Disposition and Development Agreement
This Private Disposition and Development Agreement ("DDA'') is entered into on this 19th
day of July, 2004 by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF SANTA ANA, a public body corporate and politic ("Agency"), and DONALD J.
CREVIER, AS TRUSTEE OF TIlE DONALD CREVIER TRUST, and CREVIER MOTORS,
INC., a California corporation (collectively referred to herein as "Developer").
For good and valuable consideration stated herein, the receipt and sufficiency of which are
hereby acknowledged, the Agency and the Developer agree as follows:
ARTICLE I - SUBJECT OF AGREEMENT
Section 101. Purpose of the Agreement
The purposes of this DDA are to:
(a) effectuate the Redevelopment Plan, specified in Section 102 of this DDA, by
providing for the rehabilitation and redevelopment of a portion of the South Main Project Area;
(b) provide for the construction of the following on approximately 4.23 acres currently
owed by Agency and 5.1 I acres owned by Developer (hereafter collectively referred to as "the
Project");
(i) two new, modern, attractive showrooms, one for the sale and lease of new
automobiles and the other for the sale and lease of previously owned automobiles, both of
which meet the requirements of SD 60;
(ii) a modern, attractive, five (5) story parking structure with approximately
730 parking spaces which meets or exceeds the pertinent design standards as set forth in
the (A) SD 60, and (B) Santa Ana Design and Development Standards for Parking
Structures;
(iii) a rehabilitated showroom for sale and lease of new automobiles (of a
different make than the showroom referenced in section 10 I (b )(i), above~
(iv) a rehabilitated and expanded repair facility for automobiles; and
(v) ancillary support activities, such as a detailing center and carwash;
(c) implement SD 60 as amended, adopted by the City of Santa Ana;
1
(d) provide the tenns and conditions by which Developer can develop its showrooms,
parking garage, repair center and ancillary facilities; and
(e) facilitate the economic development ofthe City of Santa Ana and the Project Area, as
defined in Section 103 of this DDA.
The rehabilitation and redevelopment by the Developer pursuant to this DDA, and the
fulfillment generally of this DDA, are in the vital and best interest of the City and the health,
safety, morals, and welfare of its residents, and in accord with the public purposes and provisions
of applicable laws and requirements
Section 102. The Redevelopment Plan
This DDA is subject to the provisions of the South Main Street Redevelopment Plan
which are incorporated herein by this reference and made a part hereof as though fully set forth
herein. Any amendment to the South Main Street Redevelopment Plan which changes the
restrictions or controls that apply to the parcels to be developed by the Developer as defined
hereafter, shall require the written consent of the Developer. Any other amendments of the
South Main Street Redevelopment Plan applying to other property in the Project Area shall not
require the consent of the Developer, or its successors or assignees.
Section 103. The Proiect Area
The "Project Area" is located in the City of Santa Ana, California, and is more
specifically described in the Redevelopment Plan.
Section 104.
The Propertv
The "Property" is the real property on which the Project is to be constructed, which is that
portion of the Project Area which is shown on "Attachment No.1", attached hereto and
incorporated herein by this reference, and is more fully described in "Legal Description" of the
Property, which is incorporated herein by this reference and attached hereto as "Attachment
No.2". The Property consists of one parcel ofland owned by Agency (designated "Parcel A"
and "Parcel B" on Attachment Nos. I & 2), and one parcel of land owned by Developer
(designated "Parcel C" on Attachment Nos. 1 & 2). The Property does not include the Option
Area, unless and until fee simple title to it is acquired by the Developer. At or prior to close of
escrow of Parcel A, the parties (the Agency acting through and by it's Executive Director) may
mutually agree to adjust, consistent with an approved lot line adjustment submitted by Developer
and approved by the City of Santa Ana, the boundaries of Parcel "A" with respect to Parcel "B";
provided, however, that such adjustment shall not affect the total area of Parcel "A" plus Parcel
"3" and that such changes are recorded in the grant deed transferring both Parcels from Agency
to Developer.
2
Section 105.
The Agencv
The Agency is a public body, corporate and politic, exercising govemmental functions
and powers, organized and existing under Chapter 2 of the Community Redevelopment Law of
the State of California (Health and Safety Code §33000 et seQ.).
The principal office of the Agency is located at City Hall, City of Santa Ana, 20 Civic
Center Plaza, Santa Ana, California, 92701.
Section 106.
The Developer
The Developer is Donald J. Crevier, as Trustee of the Donald Crevier Trust. Developer
hereby designates Don Crevier as its manager for the Project. Any change ofthat manager shall
be subject to the reasonable approval ofthe Executive Director of the Agency. Developer
acknowledges and warrants that it has legal ownership of the portion of the Parcel C referenced
in section 104. The word "Developer" shall also include CREVIER MOTORS, INC., a California
corporation.
The principal office of the Developer is located at 1500 Auto Mall Drive, Santa Ana,
California 92705.
Section 107. Preliminary Conditions to this DDA.
The rights and obligations of the parties under this DDA are conditional upon:
A The City's approval of the following discretionary acts, permits and entitlements,
which the parties hereto acknowledge that the City is fully entitled to approve, approve with
conditions or deny for any reason in accordance with the applicable laws:
1-
Municipal Code.
Site Plan Review pursuant to section 41-668(a)(2) of the Santa Ana
2. A conditional use permit (CUP) issued pursuant to Article V of Chapter 41
of the Santa Ana Municipal Code, commencing with section 41-630.
3.
Reserved.
4.
A lot line adjustment pursuant to the California Subdivisioa.Map-Act.
5.
Approval of a report prepared pursuant to Health and Safety Code
§ 33433.
3
6. Approval, as a "responsible agency," of a mitigated negative declaration
or other environmental document pursuant to the California Environmental Quality Act; and
7.
Approval of this DDA.
ARTICLE II - DEFINITIONS
Section 201. "Agency" shall mean the Community Redevelopment Agency of the City of Santa
Ana, and any assignee of, or successor to, its rights, powers and responsibilities.
Section 202. Reserved.
Section 203. "Approved Plans" shall mean the full and complete set of plans showing the design
of the Project as approved and conditioned by the City, which is incorporated herein by this
reference as though fully set forth.
Section 204. Reserved.
Section 205. "City" shall mean the City of Santa Ana, California, a charter city and municipal
corporation, duly organized under the Constitution and laws of the State of California.
Section 206. "Effective Date" shall mean the date first written above.
Section 207. "Final Plans" shall mean the final construction plans, drawings and specifications
in sufficient detail to obtain a building pennit, which are to be submitted to the City and Agency
for review and approval pursuant to Section 306 hereof.
Section 208. "Fiscal Year" means July 1 through June 30.
Section 209-212. Reserved.
Section 213. "Force Majeure" shall mean delays ofperfonnance by either party hereunder due
to war; insurrection; strikes; lockouts; labor disputes; riots; floods; earthquakes; fires; casualties;
acts of God; acts of the public enemy; epidemics; quarantine restrictions; treight embargoes; lack
of transportation; governmental restrictions or priority; litigation including, but not limited to,
litigation challenging the validity of this transaction or any element thereof (except
condemnation); severe weather; inability to secure necessary labor, materials or tools; delays of
any contractor, subcontractor, or supplies; acts of the other party; acts or failure iõãct of the City
or any other public or governmental agency or entity (other than acts or failure to act on the part
of the Agency or the City shall not excuse perfonnance by the Agency); or any other cause
beyond the control, or without the fault of the party claiming an extension oftime to perfonn;
provided that notice by the party claiming such extension is sent to the other party within thirty
(30) days of the commencement of the cause or event resulting in such delays. Any such
extension shall be for the duration of the cause of the delay.
4
Section 214. "Developer" shall collectively mean Donald J. Crevier, as trustee for the Donald
Crevier Trust, and CREVIER MOTORS, INC., a Califonria corporation.
Section 215. "Option Area" shall be the approximate 161 square foot, triangular shaped parcel
described in Attachment 8 hereto, owned by Wyne-Snow Industrial Park, A California General
Partnership.
Section 216. "Payment Period" shall have the meaning set forth in Section 504 of this DDA.
Section 217. "Phasing Plan" shall have the meaning set forth in Section 304.B. ofthis DDA
Section 218. "Preliminary Plans" shall mean the preliminary construction drawings, grading
plan and architectural review to be submitted to the Agency and the City pursuant to Section 306
hereof.
Section 219. "Project" shall have the meaning set forth in Section 301 hereof.
Section 220. "Project Area" shall have the meaning set forth in Section 103 hereof.
Section 221. "Property" shall have the meaning set forth in Section 104 hereof. For purposes of
Closing of Escrow the word "Property" may mean either Parcel A or Parcel B, depending on
which parcel escrow is being closed.
Section 222. "Redevelopment Plan" shall mean the Redevelopment Plan for the South Main
Street Redevelopment Project Area, which was approved and adopted by the City Council of the
City by Ordinance No.NS-1639 on July 6, 1982, and was amended by an amendment approved
by Ordinance No. NS-2256, adopted on July 17, 1995, and Ordinance No. NS-2392, adopted on
August 2, 1999, as it may be amended ITom time to time.
Section 223. "Schedule ofPerfonnance" shall mean the time schedule set forth in "Attachment
No. 7" attached hereto and incorporated herein by reference.
Section 224. "Scope of Development" shall have the meaning set forth in Section 301 hereof,
and Attachment No.3.
Section 225. "Governmental Requirements" shall have the meaning set forth in Section 312
hereof.
ARTICLE III -DEVELOPMENT OF THE PROPERTY
--
Seetion 301.
Scope of Development
Developer agrees the Property shall be developed in accordance with and within the
limitations specified in Scope of Development, "Attachment No.3", attached hereto and
incorporated herein by this reference. The improvements to be developed on the Property shall
5
include all improvements referenced in section 101 (b) above, which improvements are
hereinafter collectively referred to as the "Project."
Section 302. Public Improvements
Developer shall be responsible for the zoning, costs of environmental documents and all
other municipal requirements, which shall be such as to permit development of the Property and
the construction, use, operation, and maintenance of the improvements to be constructed thereon
in accordance with the provisions of this DDA. The Developer shall be responsible for obtaining
any approvals required by any agency, department or bureau having jurisdiction over the
development or the Developer. The Developer acknowledges and agrees that these City of Santa
Ana approvals will include, but not be limited to, the condition that Developer dedicate and
improve a portion of its property for a dedicated right turn lane southbound on Auto Mall Drive.
Section 303. Responsibilities ofthe Agencv
The Agency shall perform only that work explicitly specified in the Scope of
Development and elsewhere in this DDA for the Agency to perform.
Section 304.
Preliminary Plans
A. All work to be performed on the Property shall be in accordance with the
Preliminary Plans and related documents approved by the Agency at the time of its approval of
this DDA, except for such changes which may be mutually agreed upon in writing between the
Developer and the Agency. Any such changes may be approved by Agency's Executive Director
provided they are within the limitations established in the Scope of Development. A reduced
copy of the Preliminary Plans as approved by the Agency at the time of its approval ofthis DDA
is attached hereto as "Attachment No.4".
B, The Project shall be developed in three (3) Phases as set forth in the Preliminary
Plans. In general, Phase I shall be the parking garage and re-sale showroom, Phase II shall be
the construction of the new sales showroom and Phase III shall be the expansion of the service
area and rehabilitation ofthe existing new sales showroom.
Section 305. Landscaping Plans
Landscaping plans shall be those approved by the City as part of Design Review
No.2004-002.
-~
Section 306.
Construction Drawings and Related Documents
A.
The Developer shall prepare and submit construction drawings and related documents for
the Property to the Agency for review (including, but not limited to, architectural review)
and written approval as and at the times established in the Schedule of Performance.
The construction drawings and related documents shall be submitted in two stages: (i)
6
the Preliminary Plans and (ii) Final Plans. The Agency acknowledges that it has already
reviewed and approved the Preliminary Plans.
B.
During the preparation of all drawings and plans, the Agency staff and the Developer
shall hold regular progress meetings to coordinate the preparation of, submission to, and
review of construction plans and related documents by the Agency. The Agency staff
and the Developer shall communicate and consult infonnally as frequently as is necessary
to insure that the fonnal submittal of any documents to the Agency can receive prompt
and speedy consideration.
C.
Any revision or correction of plans required by the City shall be deemed approved by the
Agency.
D.
The Agency shall not have any ownership interest in, or any right to use, the Preliminary
Plans or the Final Plans which are submitted to the Agency by Developer pursuant to this
Article III, nor shall the Agency authorize the right to use any such plans or drawings to
any person or entity.
Section 307.
Agency Approval of Plans. Drawings and Related Documents
A. The Agency shall have the right of reasonable review (including, but not limited
to, architectural review) of all plans, drawings and related documents for the development,
including any proposed changes therein. The Agency shall approve or disapprove such plans,
drawings, and related documents referred to in this DDA (and any proposed changes therein)
within the times established in the Schedule of Perfonnance. Such approval shall not be
unreasonably withheld. Any disapproval shall state in writing the reasons for disapproval. The
Agency shall have the right to disapprove, in its reasonable discretion, any of the Final Plans if
the Final Plans do not confonn to the Approved Plans, the approved Preliminary Plans or do not
confonn to the Scope of Development or this DDA, or are incomplete. The Agency shall state in
writing the reasons for disapproval of the Final Plans within fifteen (15) days of receipt of copies
of such Final Plans. Failure to notifY Developer of reasons for disapproval within such time
period shall be deemed approval of such items. The Developer, upon receipt of a notice of
disapproval, shall revise such portions of the plans, drawings or related documents in a manner
that reasonably satisfies the reasons for disapproval and shall resubmit such revised portions to
the Agency as soon as possible after receipt of the notice of disapproval. Plans, drawings, and
related documents receiving Agency approval shall not be subsequently disapproved. Developer
shall ensure that design of the Project complies with all Governmental Requirements.
B. The Agency shall not have any proprietary interest in the Project -.the :J!£operty,
and its review of the Final Plans shall be limited to detennine confonnance ofthe Project with
the. City of Santa Ana Project approvals referenced in Section 107 of this DDA and the Scope of
Development.
7
Section 308.
Cost of Construction
The cost of developing the Property and of constructing all improvements thereon shall be borne
by the Developer, except as otherwise expressly provided in this DDA. Should Developer
demolish any structures on the Property, the Agency will credit the actual cost of such
demolition (and disposal of demolition waste) ITom the Purchase Price established in Section 401
of this Agreement; provided, however that Developer shall pay "prevailing wage" as that term is
defined in the California Labor Code for such demolition. The parties agree and acknowledge
that the cost of demolition of structures on the Property would be a cost normally borne by the
seller, in this case the Agency, since the Property is being purchased by Developer is valued as
"raw land" pursuant to the Report prepared pursuant to Health & Safety Code section 33433, and
that in any event such credit, even if it were deemed a subsidy to a private developer, is de
minimis in the context of the project.
Section 309.
Commencement and Completion of Construction
The Developer shall begin and complete all the required development within the times
specified in the Schedule of Performance, subject to Force Majeure or such reasonable
extensions of such times as may be granted in writing by the Agency's Executive Director.
Section 310.
Construction Supervision
Developer shall assure that development on the Property is constructed in accordance
with the following requirements:
A.
Developer shall contract with a general contractor, licensed as such by the State of
California, for all such construction work.
B.
A project manager of Developer shall inspect the construction work at least once each
month until such construction work is complete. A construction progress report shall be
prepared by the Developer or general contractor or architect and approved by the
Developer and delivered to the Agency's Executive Director at least once each month
until such construction work is completed. Such inspection and report shall be limited to
the Developer's compliance with this DDA to the extent that the requirements of this
DDA exceed, or are in addition to, the normal requirements of the building and zoning
codes ofthe City.
C.
Developer shall ensure that construction on the Property complies with all Governmental
Requirements. --
Section 31 I.
Antidiscrimination During Construction
The Developer for itself and its successors and assignees agrees that in the construction
of the improvements on the Property provided for in this DDA, the Developer will not
8
discriminate against any employee or any applicant for employment because of sex, marital
status, race, color, religion, creed, national origin or ancestry.
Section 3]2.
Compliance With Governmenta] Requirements.
Deve]oper shall carry out the design, construction, and operation ofthe Project in
substantia] conformity with all applicable laws, ordinances, statutes, codes, rules, regulations,
orders, and decrees of the United States, the State of California, the County of Orange, the City,
or any other political subdivision in which the Property is located, and of any other political
subdivision, agency, or instrumentality exercising jurisdiction over the City, the Developer or the
Property, including all applicable federal, state, and local occupation, safety and health laws,
rules, regulations and standards, applicable state and labor standards, the City zoning and
development standards, City permits and approvals, building, plumbing, mechanic a] and
electrica] codes, as they apply to the Property and the Project, and all other provisions of the City
and its MW1icipa] Code (as they apply to the Property and the Project), and all applicable
disabled and handicapped acccss 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. ("Governmenta] Requirements").
A.
B.
Section 313.
Riclü ofHo]ders of Security Interests
The holder of any mortgage, deed of trust, or other security interest creditor with a
secured interest in the Property or any portion thereof (each "a holder") authorized by this
DDA shall in no way be obligated by the provisions of this DDA to construct or complete
the improvements or to guarantee such construction or completion; nor shall any
covenant or any other provision in a deed for any portion of the Property be constructed
so to obligate such holder. Nothing in this DDA shall be deemed to construe, permit, or
authorize any such holder to devote the Property to any uses, or to construct any
improvements thereon, other than those uses or improvements as specified in the
Approved Plans.
Whenever the Agency shall deliver any notice or demand to the Deve]oper with respect
to any breach or default by the Deve]oper in completion of construction of the
improvements, the Agency shall at the same time deliver to each holder of record of any
mortgage, deed of trust or other security interest authorized by this DDA, a copy of such
noticc or demand. Each such holder shall (insofar as the rights of the Agency are
concerned) have the right at its option within one hundred twenty (120) days after the
receipt of the notice to cure or remedy any such default and to add the cost thereofto the
security interest debt and the lien on its security interest, provided such hekler cBll1plies
with the following requirements:
1.
If such default shall be a default which can only be remedied or cured by such
holder upon obtaining possession, such holder shall seek to obtain possession with
diligence and continuity through a receiver or otherwise, and shall remedy or cure
such default within one hundred twenty (120) days after obtaining possession;
9
B.
C.
Section 314.
A.
provided that in the case of a default which cannot with diligence be remedied or
cured, or the remedy or cure of which cannot be commenced, within such one
hundred twenty (120) day period, such holder shall have such additional time as is
reasonably necessary to remedy or cure such default ofthe Developer.
2.
Nothing contained in this DDA shall be deemed to permit or authorize such
holder to undertake or continue the construction or completion of the
improvements (beyond the extent necessary to conserve or protect the
improvements or construction already made) without first having expressly
assumed the obligations to the Agency by written agreement satisfactory to the
Agency. The holder in that event must agree to complete, or cause to be
completed, in the manner provided in this DDA, the improvements to which the
lien or title of such holder relates, and submit evidence satisfactory to the Agency
that it has the qualifications and financial responsibility necessary to perform such
obligations, but the Agency and holder shall, upon holder's request, meet and
confer in an effort to determine whether the schedule (Attachment No.7 hereto)
should be adjusted to take into account the reasonable time necessary for the
holder to obtain possession of and title to the Project, to analyze and negotiate
amendments to plans, specifications, and construction contracts. Any such holder
properly completing such improvements pursuant to section 314 of this DDA
shall be entitled, upon written request made to the Agency, to a Certificate of
Completion from the Agency.
Certificate of Completion
Promptly after the completion of all construction required by this DDA to be completed
by Developer (including landscaping and off-site improvements) in all material respects,
the Agency's Executive Director shall furnish Developer with a Certificate of Completion
therefore upon written request by Developer. Agency's Executive Director shall not
umeasonably withhold or delay such Certificate. Such Certificate shall affirm that
satisfactory completion of the construction required by this DDA has been conclusively
determined by Agency. If the Agency's Executive Director refuses or fails to furnish
such Certificate of Completion after written request from Developer, the Agency's
Executive Director shall within ten (10) days of the written request, provide Developer
with a written statement of the reasons why the Agency refuses or fails to furnish such
Certificate of Completion. The statement shall also contain the Agency's Executive
Director's opinion of the action that must be taken to obtain such Certificate of
Completion
_._~
If this DDA has been recorded at the Recorder's Office of Orange County, such
Certificate of Completion shall be in such form as to permit it to be recorded at the
Recorder's Office of Orange County.
Such Certificate of Completion shall not constitute evidence of compliance with, or
satisfaction of, any obligation of Developer to any holder of a mortgage, or any insurer of
10
a mortgage, securing money loaned to finance the improvements, or any part thereof
Such Certificate of Completion is not a Notice of Completion as referred to in California
Civil Code, Section 3093.
D.
Furthermore, such Certificate of Completion is separate and distinct from any Certificate
of Occupancy to be issued by the City pursuant to the Chapter 8 ofthe Santa Ana
Municipal Code (incorporating by reference and amending the California Building
Code), and referenced in the Section 207 hereto, for the construction required by this
DDA or any part thereof No Certificate of Completion shall be issued by the Agency's
Executive Director for the construction required by this DDA until after the issuance by
the City of all applicable Certificates of Occupancy for such construction.
ARTICLE IV - DISPOSITION OF THE AGENCY'S PROPERTY
Section 401. Sale of Parcel A and Parcel B.
A. In accordance with, and subject to, all of the terms, covenants and conditions of
this DDA, Agency agrees to convey Parcel A and Parcel B to Developer through the escrow
established pursuant to section 408 hereof at the office of First American Title Insurance
Company, I First American Way, Santa Ana California, promptly upon satisfaction of the terms
and conditions specified in this DDA for the "Purchase Price" of THREE MILLION SIX
HUNDRED NINETY ONE THOUSAND NINE HUNDRED FORTY DOLLARS AND 00
CENTS ($3,691,940.00), this being $20.00 per gross square foot for the 184,597 square feet to
be transferred (including the 161 square foot Option Area). The parties acknowledge and agree
that this escrow shall close separately at different times for Parcel A as opposed to Parcel B and
that the Agency may, at its sole option, adjust the purchase price of the initial parcel transferred
by up to fifty cents ($0.50) per square foot; provided, however that in no event shall the purchase
price for both parcels exceed $20.00 per square foot or $3,688,720.00.
B. The parties acknowledge and agree that, as confirmed by the written Report
prepared on the Agency's behalf pursuant to California HeaIth & Safety Code § 33433, a true
and correct copy of which is on file with the Secretary of the Agency, the Purchase Price
represents both the "fair market price" of the City Parcels as that term is used in California Labor
Code § 1720(b), and the "fair market value" of the Property as that term is defined in said section
and other provisions of California law, and that neither the Purchase Price or any other element
of this Agreement provides a subsidy by the Agency to the Developer. Any sums paid by the
Agency with respect to acquisition to the Property represents an expenditure of costs that would
normally be borne by the public, or provides directly or indirectly a public subsidy to a private
development project that is de minimis in the context of the project. ~
C. Simultaneously with Closing on Parcel A, Agency shall also irrevocably assign
for' $1.00 to Developer its written option to acquire the Option Area. If Developer acquires the
Option Area, pursuant to the terms and conditions ofthis assigned option, it shall integrate the
Option Area into the Project.
11
Section 402. Approval of Condition of Property.
A. Except as provided in subsection (B) of this section 402, the Developer shall have
the right within thirty (30) days of the Date of this DDA to disapprove the environmental, soils
and geotechnical condition of Parcel A and/or Parcel B by written notice to the Agency prior to
the Conveyance. Failure by Developer to give Agency Executive Director written notice within
said thirty (30) days shall automatically constitute conclusive waiver of the right to disapprove.
B. The DDA shall not be terminated despite Developer's notice in the event that the
amount of monies reasonably necessary to remediate the Hazardous Materials pursuant to
Governmental Regulations, and generally accepted procedure to cause Parcel A and Parcel B to
be in compliance with the Environmental Laws is not more than One Hundred Thousand Dollars
($100,000.00). In such event, Agency agrees to pay the amount up to such One Hundred
Thousand Dollars ($100,000) limit (the "Excess Payment").
Section 403.
No Further Warranties As To Property.
Except as otherwise provided herein including as provided in Section 414.1, below, the
physical condition and title to Parcel A and Parcel B is and shall be delivered from Agency to
Developer in an "as is" condition, with no warranty expressed or implied by Agency, including
without limitation, the presence of Hazardous Materials or the condition ofthe soil, its geology,
the presence of known or unknown seismic faults, or the suitability of the Property for the
development purposes intended hereunder.
Section 404. Developer Precautions After Closing.
Upon and after the effective date of this DDA, Developer shall take all necessary and
reasonable precautions to prevent the release into the environment of any Hazardous Materials
which are located in, on or under the Property. Such precautions shall include compliance with
all Governmental Requirements with respect to Hazardous Materials. In addition, Developer
shall install and utilize such equipment and implement and adhere to such procedures as are
consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
Section 405. Definition of Hazardous Materials.
For the purposes of this DDA, "Hazardous Materials" means any substance, material, or
waste which is or becomes, regulated by the State, or the United States, including, but not limited
to, any material or substance which is (i) defined as a "hazardous waste," "extremely ha!!ardous
waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed
pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of
the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 ofthe California Health and Safety Code,
12
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum,
(vi) fuable asbestos, (vii) polychlorinated biphenyls, (viii) methyl tertiary butyl ether, (ix) listed
under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article II of
Title 22 ofthe California Code of Regulations, Division 4, Chapter 20, (x) designated as
"hazardous substances" pursuant to Section 311 ofthe Clean Water Act (33 US.C. Section
1317), (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 US.c. Sections 6901, et seq. (42 U.S.C. Section 6903) or
(xii) defined as "hazardous substances" pursuant to Section 101 ofthe Comprehensive
Environmental Response, Compensation, and Liability Act, 42 US.C. Section 9601, et seq.
Section 406.
Deeds.
The Agency shall tender title to Parcels A and B to Developer by grant deed, in
substantially the fOffil as Attachment No.6 hereto, which is incorporated by this reference as
though fully set forth. The deeds shall contain no covenants, conditions or restrictions other than
the covenant against discrimination mandated by the Community Redevelopment Law.
Section 407. Condition of Title of Parcels A and B.
Developer shall, at its sole expense, secure ITom First American Title Insurance
Company, or another title company mutually agreeable to both parties (the "Title Company"), a
standard preliminary title report with respect to title to Parcel A and Parcel B (the "Title
Report"), together with legible copies of the documents underlying the exceptions
("Exceptions") reflected in the Title Report, within thirty (30) days ITom the date of this DDA.
The Developer shall have the right to reasonably approve or disapprove the Exceptions in the
Title Report, and other title matters shown on an ALTA survey if obtained by the Developer at
its expense; provided, however, that the Developer hereby approves the Redevelopment Plan as
of the date hereof as an Exception.
Developer shall have thirty (30) days ITom the date of its receipt of the Title Report and
the documents underlying the Exceptions to give written notice to Agency and Escrow Agent of
Developer's approval or disapproval of any of such Exceptions set forth in the Title Report and
any title matters shown on the ALTA survey, within its reasonable discretion. If Developer
notifies Agency of its disapproval of any Exceptions in the Title Report and/or any matters
shown on the ALTA survey, Agency shall have the right, but not the obligation, to remove any
disapproved Exceptions or disapproved title matters shown on the ALTA survey within thirty
(30) days after receiving written notice of Developer's disapproval or provide assurances
satisfactory to Developer that such Exception( s) or disapproved title matters will be
removed/corrected on or before the Closing. If Agency cannot or does not elect to remove any
of the disapproved matters within that period, Developer shall have fifteen (15) days after the
expiration of such thirty (30) day period to either give the Agency written notice that Developer
elects to proceed with the purchase of the Property subject to the disapproved matters or to give
the Agency written notice that the Developer elects to teffilinate this DDA for cause. The
13
Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as
the "Condition of Title." The Developer shall have the right to approve or disapprove any
further Exceptions reported by the Title Company after the Developer has approved the
Condition of Title for the Property (which are not created by Developer) including any
exceptions disclosed by any revisions to the ALTA survey within the same time periods set forth
above, commencing upon receipt of such further exceptions. The Agency shall not voluntarily
create any new exceptions to title following the date of this DDA.
Notwithstanding the foregoing, Developer shaH not object to the following exceptions:
(I)
Easements held by a public entity or a privately owned public utility company;
(2) Subsurface drilling rights pertaining to exploration for or production of oil, gas,
hydrocarbon substances or minerals which do not affect development of the Property;
(3)
The Redevelopment Plan;
(4)
The covenants, conditions and restrictions set forth in this DDA and in the Grant
Deed.
Section 408.
Title Insurance.
Concurrently with recordation of the Grant Deed conveying title to the Property, there shall be
issued to Developer an ALTA owner's policy oftitle insurance (the "Title Policy"), together
with such endorsements as are reasonably requested by the Developer, issued by the Title
Company insuring that the title to the Property is vested in Developer in the condition required
by Section 407 of this DDA. The Title Company shall provide the Agency with a copy ofthe
Title Policy. Except as provided by Section 407, subparagraphs (1) through (4), the Agency
agrees to remove on or before the Closing any deeds of trust or other monetary liens against the
Property. Any costs, including the additional cost of an ALTA policy above the cost ofa CLTA
policy or any endorsements requested by the Developer, shaH be borne by the Developer.
Section 409. Costs of Convevance.
With regard to the conveyance oftitle to Parcel A and Parcel B to Developer:
(I)
limitation:
The Agency shall pay the following fees, charges and costs, including without
~
(a) Subject to section 407, costs necessary to place title in the condition
req)lired by the provisions of this DDA; and
(b) Ad valorem taxes, if any, upon Parcel A and Parcel B conveyed for any
time prior to conveyance oftitle.
14
(2)
The Developer shall pay the following fees, charges and costs:
(a)
this DDA;
(b)
(c)
(d)
(e)
and
(f)
Section 410.
The premium for any title insurance policies as set forth in Section 408 of
All escrow fees and recording fees;
The Purchase Price;
All notary fees;
Any federal, state, county or city documentary stamps and transfer taxes;
Any other fees, charges or costs relating to closing without limitation.
Schedule of Convevance.
Parcel A and Parcel B shall each be conveyed by the Agency to Developer in two (2)
separate conveyances upon the completion of the following:
(I)
Issuance of a AL T A Title Insurance Policy to Developer.
(2)
Approval by the City of entitlements specified in Section 107 of this DDA.
(3)
Developer obtaining valid building pennits from the City for said Parcel(s)
(4) Developer proving, to the satisfaction of the Executive Director of Agency, that
Developer has obtained a construction loan and such other liquid funds necessary to start and
effectuate construction of the Project on said Parcel(s).
Prior to conveyance oftitle, Agency shall be obliged to provide Developer with a Right of Entry,
for the purposes of conducting tests, studies and inspections, and for site preparation work
including grading or utility relocation pursuant to a City issued valid grading pennit.
Section 411. Agency's Conditions of Closing.
Provided the failure of any such condition is not due to a failure by the AgIiIlcy te satisfy
its obligations under this DDA, the Agency's obligation to proceed with the Closing for Parcel A
and Parcel B is subject to each and all of the conditions precedent (I) through (7) inclusive,
described below ("Agency's Conditions Precedent"), which are solely for the benefit of Agency,
and which shall be fulfilled by the Developer, or knowingly waived by the Agency, within the
time periods provided for herein:
15
(I) No Default. Prior to the Close of Escrow, Developer shall not be in Default in
any of its obligations under the tenns ofthis DDA and all representations and warranties of
Developer contained herein shall be true and correct in all material respects.
(2) Execution of Documents. The Developer shall have executed an acceptance of
the Grant Deed and Quit Claim Deed, and any other documents required hereunder and delivered
such documents into Escrow.
(3) Pavrnent of Funds. Prior to the Close of Escrow, Developer shall have deposited
in Escrow the Purchase Price, and Developer shall have paid all of Developer's required costs of
Closing.
(4) Insurance. The Developer shall have provided proof of insurance as required by
Section 701.B. of this DDA.
(5) Financing. The Executive Director of Agency shall have approved the
construction financing of the Project (which approval shall not be unreasonably withheld if
Developer demonstrates that such financing has been irrevocably committed for the Project), and
such financing shall have closed and funded or shall close and fund concurrently with the
Closing.
(5) Citv Discretionary Approvals. Prior to the Closing, the Agency and the
Developer shall have obtained all City Discretionary Approvals required for the development of
the Project.
(7) Acquisition of Property. The Agency shall have acquired clear, marketable title
to the Property, or shall be acquiring title in such condition concurrently with the Closing.
(8) Possession. Prior to Closing, the Agency shall have obtained full and sole
possession ofthe Property or of the relevant Parcel which is being closed, except that the
Developer shall not object to the closing of Parcel A if the County of Orange is still occupying
the accessory garage located at the rear of the Agency owned property at 2009 East Edinger
A venue, pursuant to the tenns of a relocation agreement by and between the Agency and the
County of Orange in a fonn reasonably approved by Developer.
(9) Prevailing Wage ()Pinion. The Developer shall have obtained and submitted to
the Agency a written detennination ITom the California Department ofIndustrial Relations
pursuant to 8 California Code of~egulations § I 600 1 (a) that the construction ofthe Project is
not a public work and therefore is not subject to prevailing wage.
Section 412. Developer's Conditions of Closing.
Provided the failure of any such condition is not due to a failure by the Developer to
satisfy its obligations under this DDA, the Developer's obligation to proceed with the purchase
of Parcel A and Parcel B of the Property is subject to the fulfillment by Agency or waiver by
16
Developer of each and all of the conditions precedent (I) through (9), inclusive, described below
("Developer's Conditions Precedent"), which are solely for the benefit of Developer, and which
shall be fulfilled or waived by the time periods provided for herein:
(I) No Default. Prior to the Close of Escrow, Agency shall not be in Default in any
of its obligations under the tenns of this DDA and all representations and warranties of Agency
contained herein shall be true and correct in all material respects.
(2) Execution of Documents. The Agency shall have executed the Grant Deed and
Quit Claim Deed and any other documents required hereunder, and delivered such documents
into Escrow.
(3) Review and Approval of Title. The Developer shall have reviewed and approved
the condition oftitle of the Property, and the Agency shall be prepared to deliver marketable title
to the Property to Developer in accordance with the approved condition oftitle, as provided in
Section 407 ofthis DDA.
(4) Title Policy. The Title Company shall, upon payment of Title Company's
regularly scheduled premium, have agreed to provide to the Developer the Title Policy for the
Property upon the Close of Escrow, in accordance with Section 408 of this DDA.
(5) Discretionary Approvals. Prior to the Closing, the Agency and the Developer
shall have obtained all City "Discretionary Approvals," thirty (30) days have passed since the
posting ofthe Notice of Detennination for the Project, and no legal challenges shall have been
filed against the Project, and if such challenge has been filed that it has been resolved to the
satisfaction of both Agency and Developer, and the Agency shall have used its best efforts in
cooperating with the City to obtain all other applicable pennits and approvals that must be issued
by governmental units other than the City and the Agency.
(6) Condition of the Property Acceptable. The Developer shall not have disapproved
the environmental, soils and geotechnical condition of the Property within thirty (30) days of the
Date of this DDA.
(7) Acquisition of Property. The Agency shall have acquired clear, marketable title
to for Parcel A ofthe Property.
(8) Adverse Conditions. No lawsuit, moratoria, statute, rule, regulation, or similar
judicial or administrative proceeding or governmental action shall exist which would materially
delay or significantly increase the cost of the Project, or prevent Developer, as det€rn1ined in
Developer's reasonable discretion, ITom constructing the Project in accordance with the Scope of
Development.
(9) Availability of Financing. The construction financing necessary to develop the
Project is then available.
17
(10) Possession. Prior to Closing, the Agency shall have obtained full and sole
possession of the Property or ofthe relevant Parcel which is being closed, except that the
Developer shall not object to the closing of Parcel A ifthe County of Orange is still occupying
the accessory garage located at the rear of the Agency owned property at 2009 East Edinger
Avenue, pursuant to the tenns of a relocation agreement by and between the Agency and the
County of Orange in a fonn reasonably approved by Developer.
(I 1) Prevailing Wage üpinion. The Developer shall have obtained and submitted to
the Agency a written detennination /Tom the California Department of Industrial Relations
pursuant to 8 California Code of Regulations § 16001(a) that the construction of the Project is
not a public work and therefore is not subject to prevailing wage.
Section 413. Escrow.
(1) The Agency agrees to open an escrow for the sale of the Property to the
Developer with First American Title Insurance Company, or such other escrow company
mutually agreed upon by the parties (the "Escrow Agent") within thirty (30) days of the effective
date of this DDA. This DDA and Escrow Agent's Standard Fonn Escrow Instructions constitute
the joint escrow instructions of the Agency and the Developer and a duplicate original of this
DDA shall be delivered to the Escrow Agent upon the opening of the escrow.
(2) The Agency's Executive Director and the Developer shall provide such additional
escrow instructions as shall be necessary and consistent with this DDA. The Escrow Agent
hereby is empowered to act under this DDA, and upon indicating its acceptance of this Section
413 in writing, delivered to the Agency and within five (5) days after delivery of this DDA, shall
carry out its duties as Escrow Agent hereunder.
(3) After delivery to the Escrow Agent by the Agency of a deed for a specific Parcel
for which the escrow was opened and upon close of escrow, the Escrow Agent shall record such
deed in accordance with these escrow instructions, provided that the title to such Property can be
vested in the Developer in accordance with the tenns and provisions of this DDA. The Escrow
Agent shall buy, affix, and cancel any transfer stamps required by law and pay any transfer tax
required by law. Any insurance policies relating to such property shall not be transferred to
Developer by Agency.
(4) The Agency and the Developer shall deliver to the Escrow Agent all documents
necessary for the conveyance of title to the Property in confonnity with, within the times, and in
the manner provided in this DDA.
~
Section 414.
Representations and Warranties
414.1 Agencv Representations.
Agency represents and warrants to Developer as follows:
18
A. Authority. Agency is a public body, corporate and politic, existing pursuant to the
Community Redevelopment Law, which has been authorized to transact business pursuant to
action of the City. Agency has full right, power and lawful authority to grant, sell and convey
the Property as provided herein, and the execution, perfonnance and delivery of this DDA by
Agency has been fully authorized by all requisite actions on the part of the Agency.
B. FIRPT A. The Agency is not a "foreign person" within the parameters of the
Foreign Investment in Real Property Transfer Act ("FIRPT A") or any similar state statute, or is
exempt from the provisions ofFIRPTA or any similar state statute, or the Agency has complied
with and will comply with all the requirements under FIRPT A or any similar state statute.
C. No Conflict. To the best of Agency's knowledge, Agency's execution, delivery
and perfonnance of its obligations under this DDA will not constitute a default or a breach under
any contract, agreement or order to which Agency is a party or by which it is bound.
D. Litigation. There are no claims, causes of action or other litigation or proceedings
pending or, to the best knowledge of the Agency, threatened with respect to the ownership,
operation or environmental condition ofthe Property or any part thereof (including disputes with
mortgagees, governmental authorities, utility companies, contractors, adjoining landowners or
suppliers of goods and services).
E. Violations. To the best knowledge of the Agency, there are no violations of any
health, safety, pollution, zoning or other laws, ordinances, rules or regulations with respect to the
Property, which have not heretofore been entirely corrected. In the event Agency has actual
knowledge of any such violations, Agency shall immediately provide Developer with copies of
all documents evidencing such violation.
F. No Third Party Obligations. Agency has not made, and prior to the Closing Date
will not make, any commitments to any governmental authorities, utility company, school board,
church or other religious body, or any homeowner or homeowner's association, or to any other
organization, group or individual, relating to Parcel A or Parcel B which would impose any
obligation on the Developer, or its successors or assigns, after the Closing Date to make any
contributions of money, dedications of land or grant of easements or rights of way, or to
construct, install or maintain any improvements of a public or private nature on or off the
Property, without the approval of the Developer.
Until the Closing, the Agency shall, upon learning of any fact or condition which would
cause any of the warranties and representations in this Section 414.1 not to be true as of the
Closing, within five (5) business days give written notice of such fact or conditießo.to the
Developer. Such exceptiones) to a representation shall not be deemed a breach by the Agency
hereunder, but shall constitute an exception which the Developer shall have a right to approve or
disapprove if such exception would have an effect on the value and/or development of the
Property. Ifthe Developer elects to close Escrow following disclosure of such infonnation,
Agency's representations and warranties contained herein shall be deemed to have been made as
ofthe Closing, subject to such exception(s). If, following the disclosure of such infonnation, the
19
Developer elects to not close Escrow, it shall so inform the Agency in writing, at which point
this DDA and the Escrow shall automatically terminate, and neither party shall have any further
rights, obligations or liabilities hereunder. The representations and warranties set forth in this
Section 414.1 shall survive the Closing as to facts or conditions that would constitute a "material
alteration" to the value and/or development of the Property.
414.2 Developer's Representations The Developer represents and warrants to Agency
as follows:
A. Authoritv. Developer is a duly organized California corporation which is in good
standing and authorized to do business in the State of California. The Developer has full right,
power and lawful authority to purchase and accept the conveyance of Parcel A and Parcel B and
undertake all obligations as provided herein and the execution, performance and delivery of this
DDA by Developer has been fully authorized by all requisite actions on the part of the
Developer.
B. No Conflict. To the best of Developer's knowledge, Developer's execution,
delivery and performance of its obligations under this DDA will not constitute a default or a
breach under any contract, agreement or order to which the Developer is a party or by which it is
bound.
C. No Developer Bankruptcy. The Developer is not the subject of a bankruptcy
proceeding. Until the Closing, the Developer shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 414.2 not to be true as of
the Closing, immediately give written notice of such fact or condition to the Agency. Such
exception(s) to a representation shall not be deemed a breach by the Developer hereunder, but
shall constitute an exception which Agency shall have a right to approve or disapprove if such
exception would have an effect on the value and/or development ofthe Property. If the Agency
elects to close Escrow following disclosure of such information, Developer's representations and
warranties contained herein shall be deemed to have been made as ofthe Closing, subject to such
exceptiones). If, following the disclosure of such information, the Agency elects to not close
Escrow, then this DDA and the Escrow shall automatically terminate, and neither party shall
have any further rights, obligations or liabilities hereunder. The representations and warranties
set forth in this Section 414.2 shall survive the Closing."
Section 415. Obligation to Refrain from Discrimination
The Developer covenants and agrees for itself, its subcontractors and every successor in
interest to the Property or any party thereof, that there shall be no discrimination--against-or
segregation of any person, or group of persons, on account of sex, marital status, race, color,
religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall be Developer itself or any person claiming under
or through it, establish or permit any such practice or practices of discrimination of segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees of the Property.
20
Section 416. Maintenance of the Site
Solely at the Developer's expense, after close of escrow Developer shall maintain or
cause to be maintained the Property and all improvements thereon (including but not limited to
the landscaping) in good order, condition and appearance. Developer shall keep the Property
reasonably fTee fTom any debris and waste material.
If, at any time, Developer fails to maintain, or cause to be maintained, the Property as
required by this section, and said condition is not corrected after the expiration of a reasonable
period oftime not to exceed thirty (30) days fTom the date of written notice fTom the Agency,
unless such condition cannot reasonably be cured within thirty (30) days, in which case the
Developer shall have such additional time as reasonably necessary to complete such cure, either
the Agency or the City may perform the necessary landscape or other maintenance and
Developer shall pay all costs incurred for such maintenance.
Section 4 I 7. Effect and Duration of Covenants
The covenants established in this Article shall, without regard to technical classification
and designation, be binding on Developer and any successor in interest to its interest in the
Property or any part thereof or any improvements thereon for the benefit and in favor of the
Agency, its successors and assigns, and the City. The covenant against discrimination shall
remain in effect in perpetuity.
ARTICLE V - ADDITIONAL DEVELOPER COVENANTS
Section SOl.
Point of Sale
A. Developer agrees that so long as it sells or leases automobiles fTom the Property that
the "point of sale" for sales tax purposes for all sales (and initial payments associated with leases) of
automobiles (BMW and Mini makes), and all other related goods, including service, parts and
accessories, shall be the City of Santa Ana. Notwithstanding the foregoing, nothing herein shall
limit or prevent Developer fTom selling or leasing BMW's or Mini's fTom an additional BMW or
Mini new car fTanchise outside the City of Santa Ana.
B. Developer agrees that it shall not discontinue sales and leasing of its BMW or Mini
makes (lines) fTom its operation in the City of Santa Ana without the prior written consent of the
Agency Board of Directors, which shall not be unreasonably withheld or delayed, and that Developer
shall not transfer its current operation of sales or leases of new or used BMW or Mini manufactured
automobiles to Crevier Leasing Company, Inc., a California corporation.
C. The obligations provided for in this Section SOl shall survive close of escrow and
continue for the life of the Redevelopment Plan or Project Area (as it may be amended fTom time to
time).
Section 502. Developer agrees that in addition to City imposed conditions as specified
in its approvals, Developer shall be responsible to construct and maintain or cause the
21
maintenance of (i) new Auto Mall entry signage and associated landscaping at Auto Mall Drive
(both east and west sides ofthe entrance), subject to future reimbursement for the eastern entry
improvements by the Agency or future developer of this area; (ii) new fencing, walls, painting,
decorative paving, etc. along Auto Mall Drive and Edinger A venue frontages, and (iii) to
contribute its pro-rata share of fencing, walls, painting, decorative paving, and signage along
Ritchey Street frontage of expanded Auto Mall if such is undertaken within twenty (20) years of
the effective date of this DDA. Any amount paid pursuant to subsection (i) solely by Developer
shall be an offset and a credit against its pro-rata share contribution required to be paid pursuant to
subsection (iii).
ARTICLE VI - RESTRICTIONS ON TRANSFER
Section 601. Restrictions on Transfer
It is stipulated and agreed by the parties hereto that the Agency has entered into
this DDA for the purpose of obtaining development of the Property in accordance with the goals
and objectives of the Redevelopment Plan, that the qualifications and plan submitted by
Developer were essential to Agency's selection of Developer for the development of the
Property. Except as provided in subsections C and D of this section, the Developer shall not do
any of the following transactions or pennit them to occur without the written consent of the
Agency, which shall not be umeasonably withheld:
A.
Assign all or any part of this DDA.
B.
Allow any change of more than fifty percent (50%) in the membership, management, or
control of Developer (exclusive of the death or incapacitation of any person in such
position).
C.
Make any total or partial sale, transfer, conveyance or assignment of the whole or any
part of the Property.
D.
The prohibition against transfer of ownership of the Property as defined above shall not
apply to, and the Agency hereby consents to, the following:
L
Associations, including limited partnerships, limited liability companies, or joint
ventures) with other entities for the purpose of perfonning Developer's
obligations under this DDA, provided Developer retains operational and
managerial control. ~
2.
Easements or temporary pennits to facilitate development of the Property.
3.
Deeds of trust or other financing docmnents executed for the purpose of securing
loans to Developer made to finance the acquisition and/or development ofthe
Property, and transfers to any person or entity pursuant to a foreclosure or deed in
22
E.
A.
lieu of foreclosure of such deed of trust or other, similar, financing documents and
any subsequent transfer by any such person or entity.
The prohibition against transfer of ownership ofthe Property as defined above in this
section shall tenninate upon issuance of the certificate of completion.
ARTICLE VII - INDEMNIFICATION
Section 701.
Indemnification During Construction; Bodily Iniury and Property Damage
Insurance
From and after the Effective Date, Developer agrees to and shall indemnify and hold
Agency, City and their respective officers, agents and employees harmless from and
against all damages to property or injuries to or death of any person or persons, including
employees or agents of Agency or City, and shall defend, indemnify and save Agency,
City, and their officers, agents, and employees, from any and all claims, demands, suits,
actions, or proceedings of any kind or nature, including, but not by way of limitation,
workers' compensation claims of or by anyone whomsoever, in any way resulting from
the negligent or wrongful acts or omissions of Developer, its employees, agents or
subcontractors as a result of each parties' entry on the Property. Developer shall not be
liable for property damage or bodily injury to the extent caused by the negligence of the
Agency or its agents or employees or in connection with the actions or omissions of the
Agency as a result ofthe Agency's entry onto the Property.
B.
Prior to the commencement of construction, Developer shall obtain at its sole cost and
file with the Executive Director of Agency, and maintain for the period covered by this
DDA, a policy or policies of liability insurance or a certificate of such insurance,
consistent with this DDA, naming Agency and the City of Santa Ana, their officers,
agents, and employees, as insured or additional insured, which provides coverage not less
than that provided below in the fonn of a comprehensive general liability insurance
policy against liability for any and all claims and suits for damages or injuries to persons
or property resulting from or arising out of operations of Developer, its officers, agents,
or employees. Said policy or policies of insurance shall provide coverage for both bodily
injury and property damage in not less than One Million Dollars ($1,000,000) combined
single limit, or its equivalent. Said policy or policies shall also contain a provision that
no tennination, cancellation, or change of coverage of insured shall be effective until
after thirty (30) days notice thereof has been given in writing to Agency. Developer shall
give to Agency prompt and timely notice of claim made or suit instituted arising out of
Developer operations hereunder. Developer may procure and maintain, arits own cost
and expense, any additional kinds and amounts of insurance, which in its own judgment
may be necessary for its proper protection in the prosecution of the work. All insurance
policies shall be written by responsible and solvent insurance companies and shall
include an additional insured endorsement in substantially the fonn of "Attachment
No.5", attached hereto and incorporated herein by this reference
23
ARTICLE VIII - DEFAULTS AND REMEDIES
Section 801.
Defaults-General
Subject to the extensions of time for perfonnance for Force Majeure, failure or delay by
either party to perfonn any tenn or provision of this DDA within the time period provided herein
for such perfonnance constitutes a default under this DDA.
If any party defaults in perfonnance of its obligations, covenants or agreements
hereunder, the defaulting party shall be entitled to cure the default in accordance with this
section. The injured party shall give written notice of default to the party in default, specifying
the default complained of by the injured party. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default. The defaulting party must, within
thirty (30) days following service of said notice, commence to cure, correct or remedy such
failure or delay and shall complete such cure, correction, or remedy with reasonable diligence.
Upon a default by Developer which is not cured within the applicable cure period, the Agency
shall have the right to tenninate this DDA by delivery of written notice oftennination to
Developer.
Section 802.
Institution of Legal Actions
Subject to the provisions of Section 806 hereof, in addition to any other rights or
remedies, either party may institute legal action to cure, correct or remedy any default to recover
damages for any default, or to obtain any other remedy consistent with the purpose of this DDA.
Section 803.
Applicable Law
This DDA and all questions relating to its validity, interpretation, perfonnance, and
enforcement shall be governed and construed in accordance with the laws of the State of
California. This DDA has been executed and delivered in the State of California and the validity,
interpretation, perfonnance, and enforcement of any of the clauses of this DDA shall be
detennined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought
or arise out of, in connection with or by reason ofthis DDA.
Section 804. Acceptance of Service of Process
In the event that any legal action is commenced by the Developer against Agency, service
of process on the Agency shall be made by personal service on the Secretary of the Agency, orin
such other manner as may be provided by law.
In the event that any legal action is commenced by the Agency against the Developer,
serVice of process on the Developer shall be made by personal service upon the manager of the
Developer or in such manner as may be provided by law, and shall be valid whether made within
or without the State of California.
24
Section 805. RigJlIs and Remedies are Cmnulative
Except with respect to rights and remedies expressly declared to be exclusive in this
DDA, the rights and remedies of the parties are cumulative and the exercise by either 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 the
other party.
Section 806.
Damages
In the event that the Agency is liable for damages to the Developer, such liability shall
not exceed costs incurred by the Developer in the perfonnance of this DDA and shall not extend
to compensation for loss of future income, profits or assets. Without limiting the foregoing, each
party acknowledges that the other party shall have the right to specifically enforce the obligations
of Agency hereunder.
ARTICLE IX - NOTICES. DEMAND AND COMMUNICATIONS
Section 901. Fonnal notices, demands and communications between the Agency and the
Developer shall be sufficiently given if dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of the Agency and the Developer as
designated below. Such written notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time to time designate by mail as
provided in this Article IX.
Agency:
Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M-25
Santa Ana, CA 92702
Attn: John Reekstin, Executive Director
Phone: (714) 647-5360
Fax: (714) 647-6549
With Copy to:
Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Developer:
Donald J. Crevier, As Trustee
Of The Donald Crevier Trust
1500 Auto Mall Drive
Santa Ana, California 92705.
Attn: Don Crevier
Phone: (714) 835-7571
Fax: (714) 835-7081
25
ARTICLE X - SIGNAGE
Section 1001. Proiect Sign.
During construction, Developer shall provide signage on the project prominently
identifying the Agency and City of Santa Ana as participants in the Project. The Executive
Director of the Agency shall reasonably approve the sign and its contents prior to installation at
the Property.
ARTICLE XI - GENERAL PROVISIONS
Section 1101. Right ofEntrv
From the time the Property is conveyed to Developer until the issuance of a Certificate of
Completion pursuant to Section 314 of this DDA, the Agency and its representatives shall have a
right of access to the Property to inspect the work being performed by Developer on the Property
and to perform such work as the Agency may be required to perform on the Property by this
DDA. Such right of entry shall be exercised in a reasonable manner and at reasonable times so as
not to disrupt the activities of Developer and its agents on the Property.
Section 1102. Conflicts of Interest
No member, official or employee ofthe Agency shall have any personal interest, direct or
indirect, in this DDA, nor shall any such member, official or employee participate in any
decision relating to the DDA which affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is, directly or indirectly, interested.
Section 1103. Non-Liabilitv of Agencv Officials and Emp10vees
No member, official or employee of the Agency shall be personally liable to the
Developer, or any successor-in-interest, in the event of any default or breach by the Agency or
for any amount which may become due to Developer or to its successor, or on any obligation
under the terms of this DDA.
Section 1104. Inspection of Books and Records
The Agency has the right at all reasonable times to inspect the books and records ofthe
Developer pertaining to the Property as pertinent to the purposes of this DDA. The Developer
also has the right at all reasonable times to inspect the books and records of the Agency
pertaining to the Property as pertinent to the purposes of this DDA
26
Section 1105. Approvals
Approvals required of the Agency or the Developer shaIl not be unreasonably withheld,
and approval or disapproval shaIl be given within the times set forth in the Schedule of
Performance, or, if no time is given, within a reasonable time.
Section 1107. Date of Agreement
This DDA shaIl be dated as of the date ofthe resolution ofthe Agency's governing board
by which the Agency approves this DDA.
Section 1108. Entirety of Agreement
This DDA integrates all of the terms and conditions mentioned herein or incidental
hereto, and supersedes all negotiations or previous agreement between the parties with respect to
all or any part ofthe Property.
None of the terms, covenants, agreements or conditions set forth in this DDA shaIl be
deemed to be merged with any grant deed conveying title to the Property, and this DDA shall
continue in fuIl force and effect before and after such conveyance.
AIl waivers of the provisions of this DDA must be in writing and signed by the
appropriate authorities ofthe Agency and the Developer, and all amendments hereto must be in
writing and signed by the appropriate authorities ofthe Agency and the Developer.
This Agreement has been executed by the Community Redevelopment Agency of the City of
Santa Ana, acting by and through its Executive Director, pursuant to Resolution No. CRA 2004-
-, authorizing such execution, and by Developer, acting by and through the
, pursuant to , authorizing such execution.
ATTEST:
COMMUNITY DEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA
By
Patricia C. Whitaker
Executive Director
Patricia E. Healy
Secretary of Agency
27
APPROVED AS TO FORM:
~
DONALD J.
CREVIER TRUST
ßY-&:#-~~~'
Crev
Trustee
CREVIER MOTORS, INC., a California
corporation
RyÆ~#~1
President
~
28
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State ot calif°'(Çz } ss.
County of "/Z~.Þ' / .
On \ before me, Fh:Å m (\e E. ~ tði'YlQ n I o.clqry
personally appear:;" .:Do 1\0 \ri rr;;;~ )rë'r-'M~"",'"POOr.') ,
Name(s)01 SIgJltlr(s}
/a'Pérsonally known 10 me
0 proved to me on the basis
evidence
of satisfactory
fJRANCINE E. SLlFMAN~
COMM. '1473727
~ NOTARY PUBLIC. CALIFORNIA 00
~ ORANGE COUNlY ...
~ MYCOMM.EXPIAESMA~.2,2008 l
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
OPTIONAL
Though the infof1Tlation below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
-- -------------
Document Date:
-----
~
Number of Pages:~-
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
. ..----
Signer's Name:
.
Top 01 thumb here
0 Individual
0 Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
D Guardian or Conservator
[J Other: ~
~
--------------
...
Signer Is Representing:
I!;J 19'99 Naliooal Notary Association. 9350 De Soto Ave., P,O. Box 24ú2' Chalsworth. CA 9131:).24ú2' www.nationalnolary,org
Prod. No. 5907
Raorder:CaIlToII-Free1-8()O.876-6B27
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THE PROPERTY
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Property - Legal Description
Please see attached.
29
EXHIBIT "A"
PARCEL A
LEGAl DESCRIPTION
SHEET 1 OF 1 SHEET
IN THE CI1Y OF SANTA ANA, COUN1Y OF ORANGE, STATE OF CALIFORNIA, BEING THAT
PORTION OF PARCEL 2 ACQUIRED BY THE CI1Y OF SANTA ÞNA, PER INSTRUMENT
NO. 2004000126745. OFFICIAL RECORDS OF SAID COUN1Y. RECORDED 02/19/04, SAID
PORTION OF PARCEL 2 IS SHOWN ON A MAP FILED IN BOOK 29, PAGE 36 OF PARCEL
MAPS, IN THE COUN1Y RECORDER OF ORANGE COUN1Y, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2: THENCE ALONG THE SOUTH
LINE OF SAID PARCEL 2, SOUTH 89'02'55" WEST, 339.39 FEET; THENCE DEPARTING FROM
SAID SOUTH LINE, NORTH 27"55'44" WEST, 28.05 FEET; THENCE NORTH 00'35'36" WEST,
280.99 FEET TO A POINT IN THE NORTH LINE OF SAID PARCEL 2 DISTANT THEREON
350.36 FEET FROM THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG SAID NORTH
LINE, NORTH 89'50'16" EAST, 350.36 FEET TO SAID NORTHEAST CORNER; THENCE AlONG
THE EAST LINE OF SAID PARCEL 2, SOUTH 00'57'28" EAST, 301.16 FEET TO THE
POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF PARCEL 3 AS SHOWN ON SAID MAP DESCRIBED AS
FOLLOWS;
BEGINNING AT THE COMMON NORTHERLY CORNER BETWEEN PARCEL 2 AND PARCEL 3 AS
SHOWN ON SAID MAP FILED IN BOOK 29, PAGE 36 OF PARCEL MAPS, SAID POINT ALSO
BEING ON THE SOUTH LINE OF PARCEL 9 OF PARCEL MAP NO. 84-884, AS SHOWN ON
A MAP FILED IN BOOK 210, PAGES 45 THROUGH 47 INCLUSIVE OF PARCEL MAPS, IN
THE OFFICE OF THE COUN1Y RECORDER OF ORANGE COUN1Y, STATE OF CAliFORNIA;
THENCE, NORTH 89'50' 16" EAST, PER SAID PARCEL MAP NO. 84-884 ALONG THE BOUNDARY
LINE BETWEEN SAID PARCEL 3 AND SAID PARCEL MAP NO. 84-884, A DISTANCE OF 52.00 FEET;
THENCE. SOUTH 00'09'44" EAST, PARALLEL WITH THE WEST LINE OF PARCEL 8, OF
SAID PARCEL MAP NO. 84-884, A DISTANCE OF 82.42 FEET:
THENCE, DUE WEST, A DISTANCE OF 50.83' TO THE COMMON LINE BETWEEN THE
AFOREMENTIONED PARCEL 2 AND PARCEL 3;
THENCE, NORTH 00'57'28" WEST ALONG THE COMMON LINE BETWEEN SAID
PARCEL 2 AND PARCEL 3, A DISTANCE OF 84.28 FEET TO THE POINT OF BEGINNING
THE ABOVE PARCEL CONTAINS 110,821 SQUARE FEET, MORE OR LESS
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DATE:
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EXHIBIT "B"
PARCEL B
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GARY L. AKERS RCE 23713
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DATE:
FOR REFERENCE ONLY
EXHIBIT "A"
PARCEL B
LEGAL DESCRIPTION
SHEET 1 OF 1 SHEET
IN THE CllY OF SANTA ANA, COUNlY OF ORANGE, STATE OF CALIFORNIA BEING
PARCEL 3, AS SHOWN ON A MAP FILED IN BOOK 29, PAGE 36 OF PARCEL MAPS,
IN THE OFFICE OF THE COUNlY RECORDER OF ORANGE COUNlY, CALIFORNIA
EXCEPTING THEREFROM THAT PORTION OF PARCEL 3 AS SHOWN ON SAID MAP
DESCRIBED AS FOLLOWS;
BEGINNING AT THE COMMON NORTHERLY CORNER BETWEEN PARCEL 2 AND PARCEL 3 AS
SHOWN ON SAID MAP FILED IN BOOK 29, PAGE 36 OF PARCEL MAPS, SAID POINT ALSO
BEING ON THE SOUTH LINE OF PARCEL 9 OF PARCEL MAP NO. 84-884, AS SHOWN ON
A MAP FILED IN BOOK 210, PAGES 45 THROUGH 47 INCLUSIVE OF PARCEL MAPS, IN
THE OFFICE OF THE COUNlY RECORDER OF ORANGE COUNlY, STATE OF CALIFORNIA;
THENCE, NORTH 89'50'16" EAST, PER SAID PARCEL MAP NO. 84-884 AlONG THE BOUNDARY
LINE BETWEEN SAID PARCEL 3 AND SAID PARCEL MAP NO. 84-884, A DISTANCE OF 52.00 FEET;
THENCE. SOUTH 00'09'44" EAST, PARALLEL WITH THE WEST LINE OF PARCEL 8, OF
SAID PARCEL MAP NO. 84-884, A DISTANCE OF 82.42 FEET:
THENCE, DUE WEST, A DISTANCE OF 50.83' TO THE COMMON LINE BETWEEN THE
AFOREMENTIONED PARCEL 2 AND PARCEL 3;
THENCE, NORTH 00'57'28" WEST ALONG THE COMMON LINE BETWEEN SAID
PARCEL 2 AND PARCEL 3, A DISTANCE OF 84,28 FEET TO THE POINT OF BEGINNING
THE ABOVE PARCEL CONTAINS 73,615 SQUARE FEET, MORE OR LESS
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, DATE:
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GARY L. AKERS RCE 23713
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PARCEL A
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SHEET 1 OF 1 SHEET
(i) SCALE: 1. = 60'
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PARCEL A
PORTION OF PARCEL NO, 2
AND PORTION OF PARCEL NO, 3
PM 29-36
APN 402-102-05
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FOR REFERENCE ONLY
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GARY L. AKERS
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DATE:
RCE 23713
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ATTACHMENT NO.2
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL C
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
PARCEL 8 OF PARCEL MAP NO. 84-884, AS SHOWN ON A MAP FILED IN
BOOK 210, PAGES 45 THROUGH 47 INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, STATE OF
CALIFORNIA.
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT AND GENERAL CONDITIONS
Project Description
The property proposed to be conveyed is a 4.23-acre parcel adjacent to the Santa Ana Auto Mall
on East Edinger Avenue, which will be merged with the 5.1 I-acre existing Crevier site. The
development shall consist of approximately 170,066 square feet of service, sales and office space
and a five-level, six tier, approximately 738 space parking structure. The parking structure will
be 58 feet high at its tallest point and be used primarily for the storage of new car inventory. The
project will be built in three phases: The parking structure will be constructed in Phase I; a new
show room and office area in Phase II; and the new sales, service, parts and office addition to the
existing Crevier building in Phase III.
The new buildings will be constructed out of concrete block with a smooth painted finish that is
compatible with existing buildings on the project site. The service buildings will be constructed
out of split face block material and the parking structure will utilize a combination of split face
block, plaster finish and tempered glass in the show room and office areas. The design shall
continue the auto mall streetscape theme along the street ftontages. The architecture ofthe
project shall be a modem, clean-lined style meeting the criteria outlined in SD-60, as adopted
and amended by the City of Santa Ana
Landscaping
All areas of the Property that are not used for buildings, driveways and parking
shall be landscaped and maintained. Over seven percent of the project site will be landscaped.
Additionally, a 20-foot landscaped setback will be provided along Edinger Avenue, except at
approved display areas. The display areas will incorporate a combination of decorative paving
and landscaping. Ten feet oflandscaping will also be provided at the perimeter of the new
parking structure per the City's Parking Structure Standards. The northwest comer of Edinger
A venue and Auto Mall Drive will be reconfigured to provide new entry landscaping and signage
for the Auto Mall. Eleven existing queen palms in this area will remain in place or be relocated
in the immediate area to accommodate the new entry signage and right hand turn lane on Auto
Mall Drive. Any Queen Palms that die or become unhealthy as the result of relocation will be
replaced with Queen Palms of a similar size. Landscaping may consist of grass hrwns, -
groundcovers, trees, decorative block walls, screenings, terraces, fountains, pools and other
water arrangements, subject to the approval of the Agency's Executive Director and City of
Santa Ana. A pennanent water sprinkler system shall be provided in all landscaped areas to
insure proper maintenance.
31
I .
Refuse
An enclosed refuse area or areas shall be provided at locations in accordance with the
requirements ofthe City of Santa Ana. Refuse areas shall be designed with building materials
compatible with those used for the other structures on the site.
Signs
All signage on the Site shall be only that which is permitted by the City of Santa Ana pursuant
the applicable zoning under SD-60 and subject to approval of Agency's Executive Director.
Utilities
Developer shall be responsible for all utility relocation or installations on the Property; and
hookups to sewers, drains, water and gas distribution lines, electric, telephone and telegraph
lines; and for hookup to all other public utility lines. All utility services on-site shall be installed
underground or concealed within buildings and no mechanical equipment or meters shall be
exposed at ground level as required by the Santa Ana Municipal Code.
Pavement
The Developer agrees to submit for approval of Agency's Executive Director a plan showing
areas of special surface treatment.
Design Objectives
The development on the Property shall show a high quality of site planning and architectural
design, and a pleasing, safe and well-maintained environment. The use of reflective building
materials is only permitted in accordance with the zoning standards adopted for the property.
Parking
All parking areas shall be designed and improved in accordance with applicable zoning under
SD-60.
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32
ATTACHMENT NO.4
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ATIACHMENTNO.5
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
I. The Community Redevelopment Agency of the City of Santa Ana, and the City of
Santa Ana, both located 20 Civic Center Plaza, Santa Ana, California 9270 I; and their respective
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising ITom the operations
and uses performed by or on behalf ofthe named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza
(M-25), Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
33
AITACHMENTNO.6
RECORDING REQUESTED BY,
MAIL TAX STATEMENTS TO
AND WHEN RECORDED MAIL TO:
Donald J. Crevier, As Trustee
Of1ne Donald Crevier Trust
1500 Auto MalI Drive
Santa Ana, California 92705
Attn: Don Crevier
Grant Deed
)
)
)
)
)
)
)
)
)
)
This document is exempt
tTom payment of a recording
fee pursuant to Government
Code Section 27383.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, the
COMMUNITY REDEVELOPMENT AGENCY OF TIlE CITY OF SANTA ANA,
a public body, corporate and politic (the "Agency"), hereby grants to DONALD J,
CREVIER, AS TRUSTEE OF TIlE DONALD CREVIER TRUST ("Owner"), the
real property hereinafter referred to as the "Agency Parcel," described in Exhibit A
attached hereto and incorporated herein, subject to the folIowing:
1.
Conveyance in Accordance with Disposition and Development, The
Agency Parcel is conveyed in accordance with and subject to the provisions of the
Disposition and Development/Owner Participation Agreement entered into by and
between Agency and Owner dated July 19, 2004 and recorded as Document No.
with the Recorder's Office of the County of Orange (the "DDA"). The
covenants in the DDA shalI run with the land and shalI be binding upon the Developer
and alI of the successors and assigns of the Developer's right, title, and interest in and to
any portion of the Agency Parcel for the periods of time set forth therein.
2.
Use in Accordance with Redevelopment Plan. The Owner covenants
and agrees for itself, its successors, assigns, and every successor in interest to the Agency
Parcel or any part thereof, that upon the Closing and during the period of the Owner's
ownership of the Agency Parcel, the Owner shall devote the Agency Parcel to the uses
specified in the Redevelopment Plan and the DDA. All activities undertaken by the
Owner pursuant to the DDA shall conform to the Redevelopment Plan and all applicable
provisions of the City Municipal Code; provided, however, that the Owner shall not be
required to comply with changes in the use requirements of the Redevelopment Plan
made after the date of the DDA unless the Owner consents to such changes in writing.
3, Nondiscrimination Covenants. The Owner covenants by and for itself
and any successors in interest that, upon the Owner's acquisition of the Agency Parcel
and during the period of Owner's ownership thereof there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment ofthe Agency Parcel, nor shall the Owner
itself or any person claiming under or through it establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the
Agency Parcel. The covenants set forth above shall run with the land.
All deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a)
In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under
or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment ofthe land herein conveyed, nor shall the grantee
or any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy oftenants, lessees, subtenants,
sub lessees or vendees in the land herein conveyed. The foregoing covenants shall
run with the land."
(b)
In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under
or through him or her, and this lease is made and accepted upon and subject to the
following conditions:
"That there shall be no discrimination against or
segregation of any person or group of persons, on account
of race, color, creed, religion, sex, marital status, national
origin, or ancestry in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any
person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased."
In contracts: "There shall be no discrimination against or segregation of,
(c)
any person, or group of persons on account ofrace, color, creed, religion, sex,
marital status, national origin, or ancestry, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor shall the transferee
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees ofthe premises."
4,
Violations Do Not Impair Liens, No violation or breach of the
covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed
shall defeat or render invalid or in any way impair the lien or charge of any mortgage or
deed of trust or security interest permitted by the DDA; provided, however, that any
subsequent owner of the Agency Parcel shall be bound by such remaining covenants,
conditions, restrictions, limitations and provisions for the applicable time period set forth
in Paragraph 3 hereof, whether such owner's title was acquired by foreclosure, deed in
lieu of foreclosure, trustee's sale or otherwise.
5, Covenants For Benefit of Agency Only. AIl covenants without regard to
technical classification or designation shaIl be binding for the benefit of the Agency, and
such covenants shaIl run in favor of the Agency for the entire period during which such
covenants shaIl be in force and effect consistent with Paragraphs 2 and 3 hereof, without
regard to whether the Agency is or remains an owner of any land or interest therein to
which such covenants relate. The Agency, in the event of any breach of any such
covenants, shaIl have the right to exercise all the rights and remedies and to maintain any
actions at law or suits in equity or other proper proceedings to enforce the curing of such
breach. The covenants contained in this Grant Deed, without regard to technical
classification, shaIl not benefit or be enforceable by any owner of any other real property
within or outside the Project Area, or any person or entity having any interest in any other
such realty.
AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA,
a public body, corporate and politic
By:
ATTEST:
Secretary of the Agency
ACCEPTED BY OWNER:
DONALD J. CREVIER TRUST
By
Donald J. Crevier
Trustee
ATTACHMENT NO. 7
SCHEDULE OF PERFORMANCE
FUNCTION
DEVELOPMENT
A.
Submission of Preliminary Plans DP
No. 2004-02 and CUP No. 2004-09.
I. Developer submits its
Preliminary Plan to Agency.
2. The Agency staff shall approve
or disapprove the Preliminary
Plan.
B.
Building Pennits for
Phase I - Parking structure including
construction drawings,
specifications, finish grading plans
and landscape plans.
c.
Demolition of improvements on
Parcel A.
D.
Building Permits for
Phase II - New showroom and office
area, including construction
drawings, specifications, finish
grading plans and landscape plans.
E.
Demolition of improvements on
Parcel B.
F.
Building Pennits for
Phase III - New sales, service, parts
and office addition to existing
Crevier building.
TIME OF PERFORMANCE
Completed
Completed
Submit evidence of building pennits and
proof of financing within 110 days after date
of Agency's execution of this Agreement.
Prior to start of construction on Phase I.
Submit evidence of building penn its and
proof of financing within 9 months after
commencement of construction of Phase I.
Prior to start of construction on Phase II.
Submit evidence of building permits and
proof of financing within 9 months after
commencement of construction of Phase II.
SITE CONVENYANCE
A.
Opening of Escrow, Section 413-
Agency shall open escrow for the
conveyance oftitle to by Agency to
Developer.
B.
Conveyance of Title - Agency shall
convey title to Developer and
Developer shall accept conveyance
of Parcel A in accordance with
Sections 40 I and 410 of this
Agreement.
c.
Conveyance of Title - Agency shall
convey title to Developer and
Developer shall accept conveyance
of Parcel B in accordance with
Sections 401 and 410 of this
Agreement.
CONSTRUCTION PHASING
A.
Commencement of Construction of
Phase 1- Developer shall commence
construction of the improvements.
B.
Completion of Construction of Phase
1- Developer shall complete
construction of the improvements.
c.
Commencement of Construction of
Phase II - Developer shall
commence construction of the
improvements.
D.
Completion of Construction of Phase
II - Developer shall complete
construction of the improvements.
E.
Commencement of Construction of
Phase 111 - Developer shall
Within 30 days after execution of this
Agreement.
Within 30 days after submitting evidence of
building permits and financing to Agency
for Phase 1.
Within 30 days after submitting evidence of
building permits and financing to Agency
for Phase II.
Within 30 days after the later of conveyance
of Parcel A, and receipt of building permit.
Within 10 months after commencement of
construction.
Within 30 days after the later of conveyance
of Parcel B, and receipt of building permit.
Within 10 months after commencement of
construction.
Within 30 days after the later of completion
of Phase II, and receipt of building permit.
F.
Completion of Construction of Phase
III - Developer shall complete
construction ofthe improvements.
CERTIFICATE OF COMPLETION
Agency will provide Developer with a
Certificate in accordance with Section 314.
---
Within 14 months after commencement of
construction.
Within 10 days of written request by
Developer upon completion of all Phases in
accordance with Section 304B.
ATTACHMENT NO.8
LEGAL DESCRIPTION FOR
CITY OF SANTA ANA OPTION AGREEMENT WITH SNOW
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
Being that portion of parcel 2 of Parcel Map recorded in Book 29, Page 36,
Records of Orange County described as follows:
Beginning at the southeast comer of said Parcel 2; Thence along the south
line of said Parcel 2, South 89 Degrees 02' 55" West 339.39 feet, to the True
-Põint of Beginning; Thence continuing along said south line, South 89
\ Degrees 02' 55" West, 12,88 feet; Thence departing from said south line,
North 00 Degrees 35' 36" West, 25.00 feet; Thence South 27 Degrees 55'
44" East, 28,05 feet to the True Point of Beginning.
The above parcel contains 161 square feet, more or less,
Prepared under the supervision of:.
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