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HomeMy WebLinkAboutNS-2657 - Approving a Development Agreement Between the City of Santa Ana and the Roman Catholic Bishop of Orange . ORDINANCE NO. NS-2657 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE ROMAN CATHOLIC BISHOP OF ORANGE THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1: The City Council hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on June 28, 2004 recommended approval of this Development Agreement. . E. Entering into this Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of the Cathedral to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. F. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. G. The City Council has, on or about October 7, 2002, approved a Environmental Impact Report (EIR) in conjunction with this Project and adopted a mitigation monitoring plan, written findings and a statement of overriding considerations and the Council adopts this ordinance based upon said EIR, plan, findings and statement of overriding considerations. SECTION 2: The Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. . SECTION 3: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any Ordinance No. NS-2657 Page 1 of 20 court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that anyone or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. - ADOPTED this ~ day of AlJglJ~t, 2004 APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney ) -r.~ (. .1 - ,-° AYES: Councilmembers: Alvare7! Bi~t! FrRnklin! Garcia! Pulido! Solorio (6) NOES: Councilmembers: None (0) ABSENT: Council members: Chri~ty (1) ABSTAIN: Council members: None (0) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-?657 to be the original ordinance adopted by the City Council of the City of Santa Ana on AlJglJ~t 2 2004, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: 4r ?¡ :W¿J V Clerk of the Council City of Santa Ana '-' Ordinance No. NS-2657 Page 2 of 20 . RECORDING REQUESTED BY AND WHEN RECORDED MAil TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FReE RECORDING GOVERNMENT CODe § 6103 DEVELOPMENTAOREEMENTBEnNEEN THE CITY OF SANTA ANA AND THE ROMAN CATHOUC BISHOP OF ORANGE . This Development Agreement (the -Agreemenr) Is entered into between the City of Santa Ana,s charter city (the "Cityj, and The Roman Catholic Bishop of Orange, a corporation sole ,Owne"'). The City and Owner shall be referred to jointly within this Agreement as the "Parties." 1. RECITALS. ThJs Agreement refers to the following facts; 1.1. Statutory Authorizatlo . The City is authorized pursuant to Govemment Code Sections 65864 th ugh 65869..5 to enter into development agreements with persons having leg or equitable interests In reat property for the purpose of establishing certainty r both City and Owner in the development process. The City enters into this greement pursuant to those provisions of the Government COde and aplicable City policies. 1.2. Owner. Owner has a Ie I or equitable interest in the real property located within the City and de ed on exhibit A to this Agreement (the .Propertf). OWner desires to dave the Property with a 99,000 square-foot, 265O-seat church facility to serve as a parishchorch and Cathedral. a Bishop's residence, campanile (bell tower), halls, meeting rooms, day care and preschool facilities, and offices, and an approximately 45,000 square foot undercroft (collectively, the "Projecr). The Project has received lis needed entitfementsfrom the City as of the effective date of this Agreement (the -EffectfveDate.). The approved Site Plan for the Property is attached as Exhibit B. 1.3. Purpose of Agreement This Agreement is intended to assure that a. Owner has a reasonable time in which to complete the Project as approved by the City as of the Effective Date. . Ordinance No. NS-2657 Page 3 of 20 b. The Citywlæœive benefits for entering into this Agreement which exceed those which the City could rwAfmbly h~ve required as conditions of approval to the Project. c. By providing greater assurances for the completion of the Project. the attainment of goals and obje<;lives reflected in the City's General Plan. applicable Specific Plans, and Specific Development District No.4 will be facilitated. . ,,~fi- 1.4. Planning Commission. Council Hearings. On . 2004, the PlIMing Commission of the City rPlanning Commisslonlt}. after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owners application for this Agreement. The Planning Commission recommended to the City Council of City that it execute this Agreement. On . 2004. the City Council of the City of Santa Ana (the "City Councir), after providing notice as required by law, held a public hearing to consider the Owner's application for this Agreement. 1.5. Council Findings. The City Council finds that this Agreement is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6. City Ordinance. On Ordinance No. becomes effective on . 2004, the City Council adopted approving this Agreement. The ordinance '"-,, 2. DEFiNITIONS. In the Agreemen~ unless the context otherwise requires: 2.1. "Agreement" refers to this Development Agreement and any lawful amendments or rnodifications to this Development Agreement. 2.2. The uCIty" refers to City of Santa Ana. a charter city. 2.3. The "Effective Date" means the date on which the ordinance approving this Agreement becomes effective. 2.4. The "Existing Approvals" meaO$ aU sitHpecific permits. approvals, and other land use entitlements which (1) have been approved and are effective on the Effective Date and (2) pertain to the Property. Existing Approvals include, but are not limited to. Conditional Use Permit No. 2002.16. Vesting Tentative Tract Map No. 02..03, and Site Plan Review No. 2002..06. 2.5. The "Existing Regulations" means aU rules. regulations, ordinances, resolutions, official policies, and other general enactments of the City which (1) are effective on a citywide basis as of the Effective Date and (2) apply to the Property. -- Ordinance No. NS-2657 Page 4 of 20 . 2.6. The "Projeçf' means the construction of a a 99.000 square-foot. 2650-seat church facility to serve as a. parish church and Cathedral, a Bishop's residence, campanile (bell tower), halts. meeting rooms, day care and preschool facilities. and offioes. and an approximately 45.000 square foot undercroft. The Project also includes compliance with conditions of approval set forth in the Existing Approvals and any project modifications which are permitted under the Existing Approvals or are approved in the future by the City. 2.7. The "Property" means the real property described on Exhibit A and referred to in Exhibit B. consisting of approximately 16.141 acres. 2.8. "Ow..,.. means The Roman Catholic Bishop of Orange, a corporation sole, and his successors and assigns. 2.9. "Public Arr refers lathe single piece of public art discussed in Section 5.8 below and In Exhibit C. . 2.10. "Public Art Program" means the conceptual program for the design and siting of the Public Art as shown on Exhibit C. The Public Art Program sets forth the general description of the location of the Public Art and is subject to refinement at the time of installation by mutual agreement of the Owner and the City's Executive Director ot Planning and Building. 2.11. The "Termt. refers to the term of this Agreement as set forth in Section 4.2 below. Additional defined terms pertaining to specific sections of the Agreement are denoted within quotation marks and parentheses. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as fcHows: Exhibit ~ Referred to in Section A B Legal Description of the Property Site Plan 1.2 1.2 c Public Art Program 2.10.5.8 4. GENERAL PROVISIONS. . 4.1. Property Subject to the Agreement. During the Term or until released pursuant to Section 8.4 below. no portion of the Property shall be released Ordinance No. NS-2657 Page 5 of 20 from this Agreement until Owner has fuUy performed its obligations under this Agreement. 4.2. Term of Agreement. The term of this Agreement (the --rerm-) shall commence on the effective date of City Ordinance No. . . . as set forth in Sedion 1.6 above. The Term shall end on the 12th anniversary of the Effective Date unless the Agreement is terminated or modified sooner as may be allowed by this Agreement. The Term may be extended for three years by the Executfvø Director of Planning and Building if Owner has provided to City notice of its intent to proceed wfth the project within the extension period and is in compliance with the terms of this Agreement. ~ 4.3. Extension of existing Approvals. .AlI Existing Approvals shall be deemed extended for the duration of the Term. 4.4. Assignment. Owner may transfer or assign the Property, in whole or in part. to any person or entity (public or private) during the Term (an II Assignee-). Any transfer or assignment of the rights under this Agreement (an -Assignmentj shall include the assumption of the duties, obligations. and liabilities arising from this Agreement with respect to the portions of the Property assigned or transferred. The recordation of this Agreement shan serve 8$ notioe to the Assignee of this requirement. a. During the Term, any Assignee shall perform all of Owners obligations under this Agreement to the extent that those obligations pertain to the portion of the Property assigned. All Assigns shall have the same rights, benefits, duties. obligations, and liabilities of Owner under this Agreement If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned. or transferred to an Assignee for development in accordance with this Agreement. Upon an Assignment, the obligations of Owner and the Assignee shall be joint and several. 4.5. Amendment or Cancellation of Agreement. This Agreement may be amended from Ume to time or cancelled by the mutual consent of the Parties. as provided by Government Code Section 65868. ........,. 4.6. Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by either of the Parties, sUbject to the provisions of Section 7 below. 4.7. Hold Harmless. Owner agrees to and shall hold City, its officers, agents, employees, consultants. special counsel, and representatives harmless from liability for construction-relatedactivities arising from the Project, including claims for personal injury and property damage, which may arise from the direct or indirect operations of Owner or its contractors.$ubcontractors, agents, employees, or other persons acting on their behalf with respect to the Project (coUectìveJy, .Claims"). Owner agrees to pay all costs for the defense of the - Ordinance No. NS-2657 Page 6 of 20 . City and its officers, agents, employees, consultants, special counsel, and representatives against any such Claims. This hold harmless agreement shall not apply to Claims, or portions of Claims, arising from the negligent or intentional acts of the City and its officers, agents, employees, consultants, special counsel, and representatives. Owner further agrees to Indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City and agreeable to Owner, regarding any action by a third party challenging the validity of this Agreement or of any of the Existing Approvals. City may make all reasonable decisions with respect to its representation in any legal proceeding. provided that Owner shall have no liability for the payment of anysetUement amount to which Owner has not agreed. 4.8. Binding Effect of Agreement. Subject to Section 4.4 above, the burdens of this Agreement bind, and the benefits of the Agreement inure to, the Þarties' successors in interest . 4.9. Relationship of thePartJes. The contractual relationship between City and Owner arising out otthis Agreement is one of independent contractor and not agency. This Agreement does not create any third pa.rty beneficiary rights. 4.10. Notices. Any notice. tender, demand, delivery, or other communication required by this Agreement shaU be in Writing (collectively, -Notices-). Notices shan be deemed to be properly given If delivered In person or mailed by first class or certified mall, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section. To be effective, Notices must be sent to the following persons: 8. If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647..6954 and, City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 . Ordinance No. NS-2657 Page 7 of 20 b. If to Owner, to: The Roman Catholic Bishop of Orange. a corporation sole P.O. Box 14195 Orange, California 92863 Attn: Bishop Tod D. Brown Telefaœimile: (714) 282-3029 - --"'< and Tim Paone Manatt. Phelps & PhDtips, LLP 695 Town Center Drive. Fourteenth Floor Costa Mesa, Califomia 92626 Telefacsimile (114) 371-2550 A Party may change its address by giving notice In writing to the other Patty. Thereafter. Notices shall be addressed and transmitted to the new address. If sent by mail, Notices shall be effective or deemed to have been given three (3) days after deposit in the United States mail. duly registered or certified. with postage prepaid, and addressed as set forth above. If sent by telefaœimile, Notices shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames. weekends and federal, state, county, and City holidays shall be excluded. <~ 5. DEVELOPMENT OF THE PROPERTY. 5.1. Rules. Regulations and Policies. Except as expressly provided below, the rules, regulations and official policies governing thepennitted use(s) and density of the Property, and the conditions which may be Imposed on the Project. shall be those set forth in the Existing Regulations, as further limited by the Existing Approvals. 5.2. Permitted Us.. Density, and Intensity of Use; Rate and Amount of Growth. Recognizing the California Supreme Court's decision in Pardee Construction Co. v. CityofCamarlllo (1984) 37 Ca1.3d 465,208 Ca1.Rptr. 228. 690 P.2d 701 the PartIes agree that OwnershaU have the right to develop the Project in such order and at such rate and at such times as Owner deems appropriate in its own business judgment. Except as so provided, the City's right to enact police power regulations on matters not covered by Section 5.1 of this Agreement, including regulation of the rate and amount of growth, is not limited by this provision. 5.3. Design and Construction Standards and Specifications. The design and construction standards and specifications for any construction within the - --- Ordinance No. NS-2657 Page 8 of 20 . Project. including the Public Art,shall be those in effect at the time that applica60n is made for building permits for that construction. 5.4. Maximum Height and Size of Structure. The maximum height and size for all structures shall be as provided in the Existing Approvals and the Existing Regulations. 5.5. Future Discretionary Approvals. Should Owner request new or modified discretionary approvals for the development of the Property which do not alter the proposed density or intensity or use of the Property, the City may apply rules, regulations, and pOlicies which are applicable to all property within the City and adopted after the Effective Date (*New Regulations"), provided they do not alter the density or intensity or use of the Property or limit the timeframe within which Owner may complete the Project. Such New Regulations may include, but are not limited to,changes ¡nthe general plan, specific plans, zoning, and subdivision or building regulations. Except as to matters of density, intensity, and use, this Agreement shall not prevent the City from denying or conditionally approving any subsequent Owner..initiated applications for land use entitlements based on such New Regulations. In addition, this Agreement shall not prevent the City from the legitimate exercise of its ponce power to protect the health, safety, and welfare of the public. . 5.6. Processing Fees. Notwithstanding Section 5.1 above, the Project shall be subject to any fees and charges intended to cover actual City costs directly associated with processing development of the Property (collectively J "Processing Fees"). These Processing Fees may include, but are not limited to, fees and charges for applications, processing, inspections, plan review, plan processing,andlor environmental review. Only Processing Fees which could validly be applied to other projects within the City may be applied to the Project. Owner shall retain aU fee exemptions or waivers to which it is otherwise entitled by law due to its status as a religious organization. 5.7. Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusJon of and changes to fee programs, taxes whether speâaJ or general, or assessments (collectIvely, ~General Fees") adopted by the City after the EffecUve Date. General Fees shall be applicable to the Project or the Property onJy if they (1 ) are standard fees applicable to all development and property within the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not appJicableprimarily or only to this Project, and (3) are not imposed to either (a) mitigate. offset, or compensate for Project impacts which were analyzed in the Project's environmental impact report or (b) duplicate any project design features, conditions of approval, agreements, or mitigation measures contained in the Existing Approvats or this Agreement Owner shall retain an fee exemptions or waivers to which it is otherwise entitled by law due to its status asa religious organization. . Ordinance No. NS-2657 Page 9 of 20 5.8.. Work of Public Art. In consideration for the benefits set forth in this Agreement, OWner shalllndude within the Project a work of PubUc Art (the .Public Arf'). The Public Art shall be designed, Installed. and located in compliance with Exhibit C, subject also to the fol.lowing conditions: 8. Final Design. Before the earlier of (1) issuance of the first building permit for the ProJect and (2) the sixth anniversary of the Effective Date, OWner shall submit to the City the final design of the Public Art. b. Installation" Before the earlier of (1) the City's issuance of a Certificate of Use for the mafnCathedral building and (2) thelwelfth anniversary of the Effective Date, Owner shall install the Public Art. The latter date shall be extended to Nn concurrent with any extension of the Tefl1't. '- c. Failure to Meet Time Requlre.ments. If OWner falls to meet either of the time requirements set forth in Sections 5.8 a and b above. Owner shall pay the City $250,000 to be used by the City to acquire other public art for other locations within the City. In either Instance. Owner will not be considered In default under this Agreement. d. Progress Reports. During the construction and/or installation of the Public Art, OWner shall provide City with written reports on the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City. The tlmeframes set forth above for final design and installation of the Public Art may be modified at any time or times by mutual written agreement of the Parties. Such revisions do not constitute amendments of this Agreement requiring further notiçe and public hearing. Either the Planning Director or the City Manager is authorized to sign such agreements on behalf of the City. 8. Responsibility For Costs of Work Of Public Art. Owner shaH be responsible for all costs associated with the design, construction. maintenance. and repair of the Public Art. ....., f. City to Receive Contract Documents. OWnershaU furnish City, upon written request, copies of contracts and supporting documents relating to the Public Art. 5.9. Moratoria. The Project shall be exempt from any moratorium adopted after the Effective Date which would oth8fWise affect the construction, use, or density of the Property. 5.10. Conditionsot Discretionary Approvals. Except as provided in Section 4.3 above, the conditions of the Existing Approvals and any discretionary approval -- ",-," Ordinance No. NS-2657 Page 10 of 20 . received through the City's existing regulatory process shall be governed by the terms of those approvals. In 00 event shall such conditions be affected by the termination, cancellation, rescission, revocation, default, or expiration of this Agreement. 5.11. Compliance With Governmental Requirements. Except as expressly provided within this Agreement, Owner shall carry out the design, construcUon, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States. the State at Cai.ifomia. 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 instrumentaJltyexerclsing jurisdiction over the City, the Owner or the Property, including aU applicable federal,. state, and locaJ 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, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisÎOnsof the City and its Municipal Code (as they app.ty to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the Umitation. the Americans With Disability Act. 42 U.S.C. § 12101 et seq., Government Code § 4450 at seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. . 5.12. Site Plan Review. The final site pJanand design for the Project shall be reviewed by the Planning Commission (subject to appeatto the City Council) for compliance with this Agreement and the Existing Approvals and Existing Regulations. The Project shalf be deemed in compliance with the currently approved site plan (Exhibit B) jf all proposed structures are locsted within the general parameters of the building envelopes shown on Exhibit B. No further design or architectural review shall be required other than as set forth in this section. 6. ANNUAL REVIEW. 6.1. City and Owner Responsibilities. CityshaJl, at least every twelve (12) months during the T erm,revlew the extent of good faith substantial compliance by OWner with the terms of this Agreement (the -Annual RevieW'). Pursuantto Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the Annual Review. 6.2. Review Letter. If Owner is found to be in compliance with the Agreement after the Annual Review, City shall, upon written request by Owner, issue to Owner a Review Letter in recordable form stating that. based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in . Ordinance No. NS-2657 Page 11 of 20 default. Owner may record the Letter in the Official Records of the County of Orange. 6.3. Non..compllance. If, after the City conducts the Annual Review, City finds that Owner is not in good faith compliance under this Agreement, City shaN provide Owner with a notice specifically stating the basis of the default and invo.king the procedures set forth In Sectton7 .3 below. '-" 6.4. Failure of Periodic Review. Cltÿs failure to review at leastannuaUy Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.1. Events 01 Defau't. Owner is In default under this Agreement (an "OWner Defaulr) If: a. Upon completion of the Annual Review. the Cltyftnds that there is substantial evidence that Owner is not in good faith compliance with one or more of the terms or conditions of this Agreement; or b. OWner's development of the Project is not in compliance with the existing Approva's. 7.2. City Default. The City is in default under this Agreement if it fails to perform any act required of it under this Agreement (a -City Defaulr). ......, 7.3. Procedure upon Owner Default. 8. Upon the occurrence of an Owner Default. City shall give Owner written notice specifying the nature of the alleged Owner Default, the manner in which the OWner Default may be satisfactorily cured, and a reasonable time In which the Owner Default may feasibly be cured (the .Cure Period"). The City shall schedule a hearing before the City Council within 20 days after the end of the Cure Period (the *Default Hearingj at whiçh Owner may either challenge the finding of an Owner Default, demonstrate that the cure is complete, and/or demonstrate good faith effort toward curs and request reasonable additional time in which to complete the cure (which request shall not be denied by the City). b. If the CityCounciJ finds, on the basis of substantial evidence, that the OWner Default has not been and cannot be cured in a reasonable manner. City may terminate this Agreement. c" Non-performance shall not be excused because of a failure of a third person. ,-,. Ordinance No. NS-2657 Page 12 of 20 . d. An express written repudiation. refusal, or renunciation of this Agreement, signed by the OWner, shall be suffICient to terminate this Agreement without a hearing. e. Except as expressty provided within this Agreement, adoption of a law or other governmental actMty making peñormance by Owner less profitable or more difficult does not excuse OWner's performance of its obligations under this Agreement. 7.4. Procedure Upon City Default. Upon a City Default, owner shall have all remedies at law or in equity which are not Inconsistent wUh this Agreement. 7.5. Umitatfon on Remedies. In no event shall either of the Parties be liable for monetary damages or any costs or attorneys fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement. . 7.6. Institution ofL_gal Action. 'n addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any default or breach. to spedficaUyenforce any covenants or agreements set forth ¡nthe Agreement. or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. legal actions shall be instituted in the Superior Court of the County of Orange. State of California. or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1. DIscretion to Encumb.r. Owner shall have the complete and sole discretion to encumber aU or snyportion of the Property or any Improvement on the Property by any mortgage. deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2. Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the all or any part of the Property, as well as their successors and assigns (collectively, "Mortgagees.), shall, upon written request to City, be entitled to receive from City written notification of .any Owner Default at the same time at which Owner receives such notice. Additionally, Mortgagees requesting notification shall be given notice of any failure to cure an Owner Default and any action by the City to terminate this Agreement for any reason. Mortgagees shall have the right to cure any Owner Default prior to the actual termination of this Agreement by City. 8.3. Mortgagee Protection. This Agreement shaJI neither limit nor interfere with the liens of Mortgagees who have acted in good faith and for value. . 8.4. Releases. Upon written request of Owner at any time or times, City shall execute and deliver to Owner appropriate release(s) of further obligations Ordinance No. NS-2657 Page 13 of 20 under this Agreement These releases may be for some or aU of the Property, but are required only if. with respedto the portion of the Property for which the release Is reque.sted, (1) there Is not an uncured Owner Default and (2) all Processing Fees due and payable at the time of the requested release have been paid to the City.. The releases shall be acceptable to the Orange County Recorder in form and substance. ",-,. 9. MISCELLANEOUS PROVJ.SIONS. 9.1. Interest of Owner. Owner represents that it has an equitable and legal interest in the Property. Owner further represents that it has approved this Agreement and the person signing this Agreement is authorized to do so. 9.2. Rules of Constructfon. The singularindudes the plural; the masculine gender includes the feminine: .shall" Is mandatory: -maY' is permissive. 9.3. Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this Agreement This Agreement supersedes all negotiation or previous agreements between the Parties regarding the subject matter of this Agreement. Any waiver of any provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. The City shall have the ministerial obligation to reoord a copy of this Agreement In the Official Records of Orange County, California, within ten (10) days after the Effective Date. When performance of this Agreement has been completed by both Parties. or the Agreement has been terminated In the manner provided within the Agreement, the Parties shall sign a Certificate of Completion acknowledging such occwrence and record It In the Official Records of Orange County, Caltfornia. -..."",f' 9.4. Project as a Private Undertaking. The Parties acknowledge that (a) the Project is a private development for purposes of Government Code Section 65864 et seq.;(b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (0) OWner shall have the ful power and exclusive control of the Property subject to the obligations or Owner set forth in this Agreement. 9.5. Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.6. Captions. The captions of this Agreement are for convenience and reference only, and shall not define. explain, modify. construe, limit, amplify, or aid in the Interpretation, construction. or meaning of any of the provisions of this Agreement. --- Ordinance No. NS-2657 Page 14 of 20 . 9.7. Consent. Where the consent or approval of a Party is required by or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.8. Covenant of Cooperation. The Parties shaH cooperate with each other. deal with each other in good faith., and assist each other in the performance of this Agreement. 9.9. Time of Essence. Time's of the essence for each provision of this Agreement of which time is an element. 9.10. Conflicts of law. If either (1) state or federal laws or regulations enacted after the Effective Date or (2) the action or inaction of any govemmental agency other than the City prevents or precludes compliance with one or more provisions of this Agreement or requires changes in plans, maps, or permtts approved by the City, then, before this Agreement may be terminated, the Parties shalt meet and confer in good faith in a reasonable attempt to modify this Agreement to allow the Project to be completed and the City to receive the contemplated public benefits. Any modification to or termination of the Agreement arising from such circumstances shall follow a hearing before the City Council in the manner prescribed within this Agreement for amendment or. termination. . 9.11. RecordJng. The City Clerk shall cause a copy ofthJs Agreement to be recorded with the Office of the County Recorder of Orange County, California. within ten (10) days after the Effective Date. This Agreement has been executed by the City of Santa Ana, acting by and through its Mayor, pursuant to Ordinance No. N8-2657, authorizing sum. execution. and by Owner, The Roman Catholic Bishop of Orange. a corporation sole. Dated this 13th day of ~, 2004. THE CITY OF SANTA ANA Date: By DAVID N. REAM City Manager Da1l.~ /03 ~ </ THE ROMAN CATHOLIC BISHOP OF ORANGE, a corpo. 'on sole By Approved as to Form: . Ordinance No. NS-2657 Page 15 of 20 ~ By JOSEPH W. FLETCHER City Attorney STATE OF CALIFORNIA COUNTY OF ORANGE ) ) 5S. ) on this day of . 2004, before me. . a Notary Public in and for said state, personally appeared personaßy known to me (or proved to me on the basis of satisfactory evidence) to be the Mayor of THE CITY OF SANTA AAA. the charter city that executed the within Instrument. known to me to be the person who executed the within instrument on behalf of the munictpal corporation therein named. and acknowledged to me that such municipal corporation executed the within Instrument pursuant to its bytaws ora resolution of its City Council. WITNESS my hand and official seal. NOTARY PUBLIC '-'" . ) )65. COU~OFO~GE } On thiSÆ 1 ~day 04,..(, - 2004, before me, ~ J¿-::t;¡ NøIaJy PubUc ÌI and r; ~ ~ appeared-r~£}.. ~,«~- pe~t~ to me (or t)rEf~ Ie 1M OOfh~~~Of]_8~à~~Qry~AQ8) to be :~ted~-~in instrum:~t on ~~~U;mun cI~~~~~ the~~am~~t and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official ~ . .i&. .....-,.:. 1101, .... IT' -. - -. ~ .... .... ":"""'1: NO . . RY PUBLIC i PHYlLIS SOLOY r ,..ComriU~' 1322354 I i . HoI:8ry PubJiç . CaIfomIa .. J ,....,.-..-.Mtr~~;!.~~ STATE OF CAliFORNIA "-' Ordinance No. NS-2657 Page 16 of 20 . EXHIBIT A Property Legal Description ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, DESCRISED AS FOllOWS: Parcel 2 per Lot line Adjustment No. 2002..()1 In the City of Santa Ana recorded on April 16, 2002 as Instrument No. 2002...()317856 in the Office of the County Recorder of Orange County. California. . . Ordinance No. NS-2657 Page 17 of 20 ;.."'""- 'iJ' Icœ~ ,,~ ~:'::~::=.~':.~!.t!:1::a - Exhibit B Site Plan ~I "_.r-~------------- I-J""''''''- I j ¡;¡¡¡¡¡;;;. .o;;;;;ø¡ J _: = =: ~.;;~~..:!.L_,~CL_:: '::::::::::::::::::.: :':::= -- - I CHRIST OUR SA VI OR CATHEDRAL PARISH -( :.. I.. _11IÞT~ 8OIJL£VAM>. 5.UlTA ÞMA. CAUmIQoIIA lIONAN~mouc 1*)CI III000oaAHGf.WUN1'Y Ordinance No. NS-2657 . Page 18 of 20 ~ .......,¡; !~~I - . EXHIBJTC Public Art Program 1. The Public Art shall be comprised of a single art piece to be placed at the general location identified on Exhibit B to this Agreement. The final location will be shown on the site plan for the project and may include. at OWner's option. the area within the internal plaza of the Project This location may be further modified at the time of installation by agreement of the Owner and theCitÿs Executive Director of Planning and Building. provided that it is within the generallooatlon identifledon Exhibit B. 2. The Public; Art shan be valued at no less than $250,000 (the 8Art Cost"). While Owner may elect to expend more than $250,000 for the Art Cost, Owner shan not be required to spend more than $250.000. 3. The Public Art should reflect or interpret the culture or history ot the community and/or capture or reinforce the unique character of the new place. 4. The Public Art should be sited to complement features such as plaza or architectural components so that the art is an integral part of the development site. 5. The Public Art should be constructed using durable materials and finishes. including. but not limited to, stone or metal. 6. The Public Art may not include advertising of any type) including, but not limited to. products, services, or businesses. . 7. The Public Art shall be properly maintained at all times, be free of graffiti, and shall not incorporate any flashing or distracting form of Illumination. 8. The Public M shall remain on the Property and may nol be removed without the approval of the Planning Commission. 9. The following expenses may not be Included within the Art Cost: a) Expenses to locate the artist (e.g., airfare for artist interviews, etc.). b) Architect and Landscape Architect fees. c) landscaping around a sculpture that is not included as part of the artist's sculpture furnishings. including. but not limited to. functionaJ structures. prefabricated water or electrical features not created by the artist. and ornamental enhancements. d} Utility fees associated with activating electronic or water generated artwork. e) Lighting elements not integral to the illumination ot the art piece. 1) Publicity, public relatiOM, photographs, educational materials, business letterhead or logos bearing artwork image. g) Dedic8tionceremonies. indudingsculpture unveilings or grand openings. 8 Ordinance No. NS-2657 Page 19 of 20 . PLANTlNð LEe-END .1BII:i - J ~I I -, I ,_'h~l(MA1WÞ ) i ( CONCEPTUAL PLANTING PLAN CHRIST QUR SA VI OK CATHEDRAL PAR.I:;H ~~;:- ...-- o. . ::':"r. <111&.'-- *~ -- e-- -- ........ .......,....-. t::5:J -- .............. - - ............... - . ...................... -~ - ................... .- -- -- -- :'4tIIIt ...... ~...-. --- -- ......~ ~....... ... JiI:IZ! ~ ...........-. c:::::t "....,. -"'--.;¡:" - ..,... ........... ~ ..... ..... Me"" ..,.,.,......... .If#" .......... ...-- ....... w ....~ .......,.. "_'III ..JI j;;¡¡"'" -. -' ......... - -- --.it - "'--¥III'''IiIIIIIf .........,...,.... - -- ......... ......-... -- ...r....... - ............... ......... ...-JÞ1I1It...... ........ .......... ..-... - .,..,. ... -- --. .J --"I Approved Areas for Public Art ~.. 1 I ë!; 2 1-Uil ...,. ICORCORAN . coR~ðI& c:::>. iO'C"¡'.C!¥tt .... ,.......1... . ...............................,.IIIt_...-",-,.MI1WW ~ - c:: ~. "--"~'---_...,_:_. d,.;t *lwrsr~IIiJUU!VAIU'I !C.-NTiO ,.., ".A".nl""", .n""""''''U\I''''~''I\'''~''''',,'''''''-' Ordinance No. NS-2657 Page 20 of 20 '-"