HomeMy WebLinkAboutNS-2677 - Approving a Development Agreement Between the City of Santa Ana and Main Street, Concourse LLC
ORDINANCE NO. NS-2677
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA ANA AND MAIN STREET
CONCOURSE, LLC
THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS:
SFCTION 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
December 13, 2004, recommended approval of this Development Agreement.
D. 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 City Place 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.
E. The City Council has held a noticed public hearing on this Ordinance, and
has considered all testimony presented thereto.
F. The City Council has, on February 7, 2005, 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. After closing the public hearing, the Council adopted a motion continuing
the matter to its February 22, 2005 regular meeting and directing staff to return the Project
for approvai with the following adjustments:
1. Amend Part II of the Specific Development to permit:
a. 185 dwelling units (townhomes and live-work units) as
shown on lots 2, 3 and 5 of Vesting Tentative Tract Map
No. 16565.
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b. 1 dwelling unit per acre on Lot 1 of Vesting Tentative Tract
Map No. 16565.
2. Amend Section 5 of the Development Agreement to limit development in
Phase II to be consistent with the Specific Development, as amended,
but retain the concept that the City and Developer shall meet in good faith
to consider construction of a residential, for-sale, high-rise tower as part
of this Project
3. Amend the Vesting Tentative Tract Map to comply with the revised
Specific Development and Development Agreement.
4. Amend the Site Plan and Site Plan Review to comply with the revised
Specific Development and Development Agreement.
5. Amend the Final EIR, including the Project Description, consistent with
the revised Specific Development and Development Agreement.
6. Delete Section 5.1.2 of the Development Agreement related to
development of Commercial component tied to Development of hold back
units.
SFCTION ?: 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. In case of any dispute between the terms or effect of Tentative
Tract Map No. 2004-06 and the terms or effect of the Development Agreement, the
Development Agreement shall prevail.
SFCTION 3: This ordinance shall not be effective unless and until Ordinance
No. NS-2676, Resolution No. 2005-016 and Resolution No. 2005-017 become effective. If
said ordinance and resolutions are for any reason held to be invalid or unconstitutional by
the decision of any court of competent jurisdiction, or otherwise do not go into effect for any
reason, then this ordinance shall be null and void and have no further force and effect.
SFCTION 4: 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
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.
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Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
/ /1
ufman
ant City Attorney
AYES: Councilmembers: Alv;¡re7 Rist Christy Bustamante Garcia Pulido
Solorio (7)
NOES: Councilmembers: None (0)
ABSENT: Councilmembers: None (0)
ABSTAIN: Councilmembers: 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-2677 to be the original ordinance adopted by the City
Council of the City of Santa Ana on M;¡rch 7 ?005, and that said ordinance was
published in accordanc:With the Charter of t.h:C;~ ofSa~æ An, 'J
Date: 3,/ 2// IÝ " '-'~~ /, ~ A'./ .-.r ~ ¡ ~\
, Clerk of the Council \j
City of Santa Ana
Ordinance NS-2677
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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
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
MAIN STREET CONCOURSE, LLC
Dated: Febmary 14,2005
EXHIBIT
1
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AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
MAIN STREET CONCOURSE, LLC
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT
("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the Constitution and laws of the State of California
("City") and MAIN STREET CONCOURSE, LLC, a California Limited Liability Company
("Owner" or "Property Owner").
l.
RECITALS. This Agreement is entered into with reference to the following
facts:
1.1 Original Agreement. The City and Owner's predecessor in interest,
Orient Corporation of America, Inc., a California corporation ("Orient"), are parties to that
certain Development Agreement entered into on or about May 3, 1993 and recorded as
Document Number 93-0385606 with the Recorder's Office of the County of Orange (the
"Original Agreement").
(I) The purpose of the Original Agreement was to facilitate the
development of the mixed-use project contemplated by the City's Specific Design Zoning
Designation SD-59 (SD-59), Vesting Tentative Map No. 14408 and EIR No. 93-_.
(2) Orient's interest was subsequently acquired by Owner, who has
applied to the City for approvals of a modified project, including an amendment to SD-59 and a
new vesting tentative map.
(3) The City and Owner agree that the changes Owner seeks in the
Original Agreement substantiate the need to amend and restate the Original Agreement.
1.2 Code Authorization. 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 the City and Owner in the development process. The City enters into the Agreement
pursuant to the provisions of the Government Code and applicable City policies. The parties
acknowledge:
(I)
the time of development.
This Agreement is intended to assure adequate public facilities at
(2) This Agreement is intended to assure development in accordance
with the City's General Plan, applicable Specific Plans and Specific Development District
No. 59, as modified concurrently herewith by Ordinance No. NS-2676.
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(3) This Agreement will permit achievement of goals and objectives as
reflected in the City's General Plan, all applicable Specific Plans and Specific Development
District No. 59.
(4) Owner is required by existing City regulations to provide
mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through
the regulatory process:, as further provided in this Agreement.
(5) This Agreement will allow the City to realize extraordinary and
significant public infrastructure facilities and other supplemental benefits in addition to those
available through the existing regulatory process.
(6) Many of the extraordinary and significant benefits identified as
consideration to the City for entering into this Agreement are of regional significance, relate to
existing deficiencies in public facilities, require Owner 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.
1.2 Owner. Owner represents and warrants that it has a legal or equitable
interest in the real property located in the City of Santa Ana, California, legally described on
Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B
attached hereto and incorporated herein (hereinafter the "Property"). The Property is
approximately 17.72 acres in size (and approximately 18.76 acres before dedications) and is
vacant:
1.3 Approval of Owner. Owner further hereby represents that it has
approved this Agreement and is authorized to enter into this Agreement.
1.4 Planning Commission - Council Hearings. On October 25, 2004, the
Planning Commission of the City ("Planning Commission"), after giving notice pursuant to
Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's
application for this Agreement. This public hearing was duly held, all public testimony was
attended to, and consideration of this matter continued by the Planning Commission to its regular
meeting of December 13,2004, on which date the Planning Commission recommended to the
City Council of the City that it execute this Agreement. On February 7, 2005, the City Council
of the City of Santa Ana ("Council"), after providing notice as required by law, held a public
hearing to consider the Owner's application for this Agreement. Following this public hearing,
the matter was continued the Council's next regular meeting, on February 22,2005, in order to
make certain changes to this Agreement, SD-59 and Vesting Tentative Map No. 14408, to all of
which the Owner voluntarily agreed.
1.5 Council Findings. The Council finds that this Agreement is consistent
with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances,
plans, policies and regulations of the City.
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1.6 City Ordinance. On March 3, 2005, the Council adopted Ordinance No.
NS-2677 approving this Agreement. The ordinance becomes effective thirty (30) days
thereafter.
2. DEFINITIONS. In the Agreement, initially capitalized terms used but not
defined shall have the following meanings unless the context otherwise requires:
2.0.5 "Executive Director" means the Executive Director of the City's
Planning and Building Agency or designee.
2.1 "Fiual Design" means the final design documents for a work of public art,
which is set forth in greater detail in paragraph 5.8 of this Agreement.
2.2
with this Agreement.
"Map" means Tentative Tract Map No.2004-06 , approved concurrently
2.2 "Property Owner" or "Owner" means Main Street Concourse, LLC,
being the person, persons, or entity having a legal or equitable interest in the Property, and
includes Main Street Concourse, LLC's successors in interest.
2.3
"Property" is the real property described in Exhibit A and referred to in
Exhibit B.
2.4 "Project" is the development of the Property as generally set forth in
SD-59, Tentative Tract Map No. 2004-06, Conditional Use Permit No. 2004-28, Environmental
Impact Report No. 2004-01, and Site Plan Review No. 2004-05.
2.5 Public Art Locational Plan means the conceptual Plan attached hereto as
Exhibit C. The parties recognize that the Locational Plan sets forth the general description of the
location of the Public Art required by this Agreement, and is subject to refinement at the time of
installation, by Agreement of the Owner and the Executive Director.
3. EXHffiITS. The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit
ne~igm'ttiCln
np.~~r¡ptinn
Referred to
in Sp.r.tion
A
Property Legal Description
1.2
B
Property Graphical Description (Site Plan)
1.2
c
Public Art Locational Plan
2.5
D
Phasing Plan
5.1.1
E
Remaining Offsite Mitigation Measures
3
5.1.2
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F
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Residential High Rise Tower Study Area
5.4
4
4.
GENERAL PROVISIONS.
4.1 Amendment and Restatement. This Agreement amends, restates and
supersedes the Original Agreement in its entirety.
4.2 Property Subject to the Agreement. Until released pursuant to the
provisions of Section 8.6 below, no property shall be released from this Agreement until
Property Owner has fully performed its obligations arising out of the Agreement.
4.3 Effective Date; Duration of Agreement. The "Effective Date" ofthis
Development Agreement shall be the date that the City Council ordinance adopting this
Development Agreement becomes effective, which date is thirty (30) days after the City Council
meeting at which such ordinance is adopted, unless this Agreement or Ordinance No. NS-2676
(the amendment to SD-59) is the subject of a referendum which has received a prima facie
sufficient number of signatures or unless its effective date is stayed by order of a court with
jurisdiction. The remaining term of this Agreement shall extend for the same period as specified
in the Original Agreement, unless this Agreement is earlier terminated or its term modified by
further agreement fully executed by both parties; provided, however, that nothing herein is
intended nor shall it be interpreted to extend the period of validity of any approval issued in
conjunction with the City's Development Project Plan process or building permit, beyond local
requirement. Except as expressly stated herein, paragraph 3 of the Original Agreement shall
remain in full force and effect.
(b) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the
term of the Map, including any lot line adjustment or merger oflots (or any other tentative map
filed subsequent to the Effective Date of this Agreement), shall not expire during the term of this
Development Agreement remains in effect.
(c) Notwithstanding subsections (a) or (b) hereof, if, at the end of the original
or any modified term, the Property is in the process of being developed, the term of this
Development Agreement shall be further extended until such construction in process is
completed, not to exceed an additional three years after expiration of the original or modified
term.
(d) The expiration ofthis Development Agreement shall not terminate any
land use approvals approved concurrently with or subsequent to the approval of this
Development Agreement, but shall merely end the period as to which such approvals are vested
against subsequent changes in applicable law.
(e) Upon the expiration or termination of this Development Agreement for
any reason, the City and Owner and its successors and assigns agree to cooperate and execute
any document reasonably requested by the other party to remove this Development Agreement
from the public records as to the property or any applicable portion thereof.
4.4 Assignment. Owner shall have the right to transfer or assign the Property,
in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or
corporation at any time during the term of this Agreement; provided, however, that except as
provided in section 4.4.1 of this Agreement the rights of Owner under this Agreement may not
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be transferred or assigned unless the written consent of the Council is first obtained and any
transfer or assignment of the rights under this Agreement shall include in writing the assumption
of the duties, obligations, and liabilities arising from this Agreement if the City grants written
consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to
assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act,
and any such assignment or transfer shall be wholly void and of no force and effect unless such
written consent thereto be obtained from the Council. Such transfer or assignment shall not
relieve Owner ofany duty, obligation or liability to City without the consent of the City. During
the term of this Agreement, any approved assignee or transferee of the rights under this
Agreement shall observe and perform all of the duties and obligations of Owner contained in this
Agreement as such duties and obligations pertain to the portion of the Property transferred or
assigned. Any and all approved successors and assignees of Owner shall have all of the same
rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the
Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned,
or transferred to persons for ownership, investment, use or development by them in accordance
with the provisions of this Agreement.
4.4.1 Assignment to Controlled Assignee. Notwithstanding the above,
consent shall not be required in connection with a Permitted Transfer (as herein defined) of
Property of Owner provided City Council is notified of such Permitted Transfer and furnished
with copies of the fully executed instruments effectuating same within fifteen (15) business days
after the effective date thereof. For purposes hereof, the capitalized terms used herein shall be
defined as follows:
(i) "Permitted Transfer" shall mean Transfer of the Property or direct
or indirect interests in Owner if, following the transfer (a) the Property remains under the Legal
Control (defined below) of Robert H. Bisno, or, upon the death of Robert H. Bisno, his heirs or
devisees, or (b) foreclosure pursuant to the provisions of section 8.5 of this Agreement.
(ii) "Legal Control" shall mean the power or authority, directly or
indirectly through one or more intermediaries, through the ownership of voting securities, by
contract or otherwise, to direct the management, activities or policies of such person or entity.
(iii) "Transfer" shall mean any change in the direct or indirect
members, partners, shareholders or principals in the ownership of an entity or other ownership
components of such entity.
4.5 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868;
provided, however, that as specified in section 5.5.1 of this Agreement the Executive Director
may approve one or more minor changes in the Project only to the extent that such changes are
not required by State law or the City Municipal Code to be decided by the Zoning Administrator,
Planning Commission (or other City Commission) or City Council. The term "Agreement" or
"Development Agreement" as used herein shall include any amendment properly approved and
executed.
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4.6 Enforcement. Notwithstanding Government Code Section 65865.4, this
Agreement is enforceable by any party to the Agreement in any manner provided by law. The
remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable
for, any action in damages or any costs or attorney's fees resulting from any dispute,
controversy, action or inaction, or any legal proceeding arising out of this Agreement except as
may be provided in Section 6.3(5) of this Agreement.
4.7 Hold Harmless. Property Owner agrees to and shall hold the City, its
officers, agents, employees, consultants, special counsel, and representatives harmless from
liability: (1) for damages, just compensation, restitution, judicial or equitable reliefarising out of
claims for personal injury, including health, and claims for property damage, which may arise
from the direct or indirect operations of the Property Owner or its contractors, subcontractors,
agents, employees, or other persons acting on its behalf which relates to the Project; and (2)
from any claim that damages, just compensation, restitution, judicial or equitable relief is due by
reason of the terms of or effects arising from this Agreement, other than a breach by the City of
its obligations hereunder. Property Owner agrees to pay all costs for the defense of the City and
its officers, agents, employees, consultants, special counsel, and representatives regarding any
action for damages, just compensation, restitution, judicial or equitable relief caused or alleged
to have been caused by reason of Property Owner's actions in connection with the Project, any
third party claims arising out of this Agreement, or any approval or certification by the City
relating to the Project. This hold harmless Agreement applies to all claims for damages, just
compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered,
by reason of the events referred to in this paragraph or due by reason of the terms of, or effects,
arising from this Agreement or any approval or certification by the City relating to the Project,
regardless of whether or not the City prepared, supplied or approved this Agreement, plans or
specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold
harmless, and pay all costs for the defense of the City, including fees and costs for special
counsel to be selected by the City, regarding any action by a third party challenging the validity
of this Agreement or any approval or certification by the City relating to the Project, or asserting
that damages, just compensation, restitution, judicial or equitable relief is due to personal or
property rights by reason of the terms of, or effects arising from this Agreement, The Property
Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City,
excluding fees and costs for special counsel to be selected by the City or other outside counselor
consultants, if any, regarding any action by a third party challenging the validity of this
Agreement or any approval or certification by the City relating to the Project, or asserting that
damages, just compensation, restitution, judicial or equitable relief is due to personal or property
rights by reason of the terms of, or effects arising from this Agreement. City may make all
reasonable decisions with respect to its representation in any legal proceeding.
4.8 Binding Effect of Agreement. To the extent not otherwise provided in
Section 4.4 ofthis Agreement, the burdens of the Agreement bind, and the benefits of the
Agreement inure, to the parties' successors in interest.
4.9 Relationship of the Parties. The contractual relationship between the
City and Owner arising out of the Agreement is one of independent contractor and not agency.
This Agreement does not create any third party beneficiary rights.
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4.10 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if
delivered in person or mailed by first class or certified mail, postage prepaid, or sent by
telefacsimile in the manner provided in this Section, to the following persons:
If to the 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
te1efacsimile (714) 647-6515
If to Owner, to:
Main Street Concourse, LLC
c/o Transaction Companies
1800 Century Park East, Suite 450
Los Angeles, CA 90067-1518
Attn: Robert H. Bisno
Telefacsimile (310) 277-3787
and,
F. Thomas Muller, Esq.
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071
telefacsimile (2\3) 430-6407
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or
other communication shall be effective or deemed to have been given twenty-four (24) hours
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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, federal,
state, County, or city holidays shall be excluded.
5.
DEVELOPMENT OF THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. The rules, regulations and
official policies governing the permitted use(s) of the Property, with respect to and only with
respect to the permitted use(s), density, height, size of structures and intensity of use of the
Property, and provisions for reservation or dedication of land for public purposes and any other
exactions or mitigation measures applicable to the Project shall be those rules, regulations, and
policies applicable to the Property as ofthe Effective Date, including those set forth in District
Plan No. 59, as amended concurrently herewith.
5.1.1 Phasing of the Project. The City agrees and acknowledges that the
Project may be phased by Owner pursuant to the Phasing Plan attached to this Agreement as
Exhibit D.
5.1.2. Reserved.
5.1.3 Remaining Offsite Mitigation Measures. The parties acknowledge and
agree that Owner's predecessor in interest under the Original Agreement, has constructed or
caused to be constructed many of the offsite mitigation measures required by the Original
Agreement, which mitigation measures were scaled to mitigate impacts from a substantially
larger project than Owner's. Therefore, the sole remaining offsite mitigation measures which
must be funded or constructed by Owner are as set forth in Exhibit E to this Agreement.
5.2
Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Government Code Section 65866, and Pardee Construction Co. v.
City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, the City retains the
right to enact police power regulations on matters not covered by this Agreement, including
without limitation ("Reserved Powers"):
a. Municipal laws and regulations which do not interfere with Owner's
vested rights to develop and use the Property in accordance with this Agreement. Owner and its
successors and assigns and all persons and entities in occupation of any portion of the Property
shall comply with such non-conflicting laws and regulations as may from time to time be enacted
or amended hereafter. Specifically, but without limitation on the foregoing, such non-conflicting
laws and regulations include the following:
(I) Existing taxes, assessments, fees and charges, except as otherwise
specifically provided in this Development Agreement;
(2) Building, electrical, mechanical, fire and similar codes based upon
uniform codes incorporated by reference into the Santa Ana Municipal Code;
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(3) Laws, including zoning code provisions, which regulate the
manner in which business activities may be conducted or which prohibit any particular
type of business activity on a city-wide basis; and
(4)
Procedural rules of general City-wide application.
b. No vested rights as to any requirements in this section 5.2 either as to
existing or future regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, shall be subject to
applicable design standards and guidelines, including without limitation SD-59 and Chapter 41
of the Santa Ana Municipal Code, in effect at the time that any development approval shall be
sought for the Project or any unit or structure contained within the Project.
5.4
Future, Proposed Residential, High Rise Towers.
a. Without in any way affecting the rights vested pursuant to this Agreement,
Owner shall meet and confer in good faith with the City on whether to construct a residential,
for-sale, high rise tower on the Property in the general location as specified in Exhibit F to this
Agreement, in lieu of the single family residential development at the density of I unit per acre
approved for such area concurrently herewith. The parties hereto acknowledge and agree that
the City's discretionary review of any such proposal together with any approvals sought to
develop any such tower on the Property shall be deemed to fall within the provisions of section
5.5 of this Agreement, and not be covered by section 5.1 ofthis Agreement". If, after good faith
investigation and consideration the Owner has not concluded by August I, 2005, that a high rise
development is feasible, Owner may proceed with development as approved concurrently
herewith. No fees, exactions, mitigation measures or dedications shall be required with respect
to such area until development commences thereon.
b. In consideration of the above, and the extraordinary and significant
benefits that Owner acknowledges and agrees that it has received in executing this Agreement,
Owner voluntarily waives any claim, and holds harmless the City, its officers, agents and
employees, from any claim that damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement or the Project, other
than a breach by the City of its obligations hereunder. Said waiver and hold harmless shall be in
addition to that set forth in other provisions of this Agreement, including but not limited to
section 4.7.
5.5 Future Discretionary Approvals. This Agreement shall not prevent the
City, when considering requests for discretionary approvals not covered by this Agreement
subsequent to the effective date ofthis Agreement from applying new rules, regulations, and
policies which are applicable to the Property, including but not limited to, material changes in
the general plans, specific plans, zoning, subdivision or building regulations, nor shall this
Agreement prevent the City from denying or conditionally approving any subsequent
applications for discretionary land use entitlements based on such existing or new rules,
regulations, and/or policies; provided however, that such new rules, regulations, and official
policies are of general application to all development within the City and are not imposed solely
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with respect to the subject property. In addition, this Agreement shall not prevent the City from
exercising its police power to protect the health, safety, and welfare of the public. This police
power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or
obligations created or existing between the parties.
5.5.1 Minor Changes. Upon application of Owner, the Executive Director may
approve minor modifications to the discretionary approvals vested pursuant to this Agreement,
provided that such changes are consistent in scope and intention with such approvals. The
Executive Director has the sole and absolute discretion to determine what constitutes a "minor
modification. "
5.6 Processing Fees. All fees and charges intended to cover the City's costs
associated with processing development of the Property, including but not limited to fees and
charges for applications, processing, inspections, plan review, plan processing, and/or
environmental review, which are existing or may be revised or adopted during the term of this
Agreement, shall apply to the development of the Property.
5.7 Amendments or Additions to Citywide Fee Programs. This Agreement
shall not preclude the inclusion of and changes to fee programs, taxes whether special or general,
or assessments (hereafter collectively referred to as "fees") adopted by the City after the
effective date of this Agreement, which shall be applicable to the Project or the Property
provided that they (1) are standard fees applicable to all development in the City (although actual
fee rates may vary within the City where bona fide Citywide fee zones have been established),
(2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a)
mitigate, offset or compensate for Project impacts which Were analyzed in the negative
declaration prepared for the Project, or (b) duplicate any exactions, project design features,
conditions of approval, Agreements, or mitigation measures contained in the Development Plan
or this Agreement.
5.8 Development, Construction and Completion of Work of Public Art.
In consideration for the extraordinary and significant benefits to the City set forth in this Section,
the Owner has been legally vested under paragraph 5.1 with regard to the permitted uses of land,
density, and intensity of use, Owner shall include within the Project at one or more prime
locations visible to the public from currently existing public right-of-way, one or more
permanent works of public art (the "Public Art"). The Owner shall design and/or construct the
facilities specified below prior to the corresponding triggering event specified in section 5.8.1
below. The Public Art shall conform in all respects to Exhibit C of this Agreement, the "Public
Art Locational Plan."
5.8.1
Work of Public Art.
FAr:ilitipc;;. to Rp. rnndnlC':tptf
Triggpring Fvp.nt (F. g Npw I r~p nrNpw ArPA)
I. Submit Final Design of Public Art.
Final design must conform to Public Art
Locational Plan.
Prior to issuance of first Building Permit or four
(4) years from the effective date of this
Agreement, whichever comes first.
2. Install Public Art.
Prior to the City's issuance of Certificate of Use
11
Ordinance NS-2677
Page 1 5 of 38
and Occupancy for any building, or five (5) years
from the effective date of this Agreement,
whichever comes first:
With respect to the Final Design, Owner shall complete all construction and development, shall
submit all plans, drawings, and other documents, and perform all of its obligations under this
Agreement within the times specified above. During periods of construction of the work of
public art encompassed in the Public Art Locational Plan, Owner shall submit to the City a
written report of 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, and shall
include a reasonable number of construction photographs (if requested) taken from the last report
by Owner. Development scheduling or date or times of performance may be subject to revision
from time to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring further notice and public hearing.
5.8.2 Inclusionary Housing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit (or live-work unit) as a condition of issuance of each building
permit. This fee shall be used by the City to build new or substantially rehabilitate existing
affordable housing in the City.
5.8.3 Cultural In-Lieu Fee. The parties acknowledge that the Original
Agreement included the requirement that Owner construct a 125-fixed seat legitimate theater as
part of a dual-purpose, "multiplex" motion picture theater complex Due to modifications to the
Project from the Original Agreement to this Agreement, Owner agrees that in lieu of
constructing said theater, it will pay the City a fee of$400,000.00 upon the issuance of the first
building permit for the Project. The City agrees to use this fee toward the design and
construction of a theater.
5.8.4. Park Requirements.
a. Santiago Park Improvements. The Owner shall pay a special Santiago
Park fee of $1.64 per square foot of net rentable or salable square feet of development as a
condition of issuance of each building permit. The parties acknowledge and agree that this
contribution is in addition to any tax or fee or dedication imposed by the City on new residential
development. The City shall use said fees for deferred maintenance and capital improvements to
Santiago Park. If not used or appropriated within five years after payment, this fee shall be
returned to Owner, consistent with the provisions of and exceptions contained within the
California Mitigation Fee Act, Government Code § 66000 et seq. This fee shall be offset against
the fee owed the City pursuant to section 5.8.4(b) of this Agreement (i.e., the amount in the "In-
Lieu Park Fee" required of Owner shall be reduced by an amount equal to the special Santiago
Park fee paid by Owner pursuant to this section).
b. In-Lieu Park Fee. The Owner shall pay an "in lieu" fee at the value of
$35.50 per square foot of area to be dedicated pursuant to the standard established by section 34-
204 et seq. of the Santa Ana Municipal Code, as specified in the City's site plan review letter;
provided, however that the fee may be increased yearly by the average rate of increase in land
12
Ordinance NS-2677
Page 16 of 38
costs in the City of Santa Ana, as that increase is established by the annual change in the
"Construction Cost Index-Los Angeles," published by Engineering News-Record, or substitute
index chosen by the Executive Director should this index is discontinued. The fee shall be paid
for each phase, as set forth in section 5.1.\ of this Agreement, prior to issuance of the first
building permit for that phase, and shall be utilized by the City in the Quadrant of the City (as set
forth in the City's Park A&D Fee program) in which the Project is located, with priority given to
Santiago Park.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and
Restrictions (CC&R's) must be provided and approved by the Executive Director for the project
prior to the issuance of the first building permit. Such CC&R's must contain at a minimum, the
following:
(I)
No more than four residents per live-work unit.
(2) All residential and live-work units shall remain owner occupied
and shall not allow rental of the entire unit.
(3) Use Restriction for Live-Work Units. The live-work project must
remain as a live-work community. The work component shall be limited
to one of the allowable uses as specified in the Specific Development
(SD-59) zoning district.
(4) Repair of perimeter walls will be specified in the CC&R' s in the
event of damage.
(5) The CC&R's shall provide notice to prospective owners of the
urban character of the City and this area, including but not limited to the
permitted uses of the property and buildings in the immediate area of the
development (e.g.., Main Place Regional Shopping Mall, and surrounding
property zoned and/or devoted to commercial use), and shall provide a
release of all claims against the City which may arise from or relate to the
disclosed matters.
(6) The CC&R's shall reflect that ground floor space in the live-work
units shall be restricted to work/retail activities.
(7) The CC&R's shall reflect that balconies may not be used for
storage.
(8)
Terms and Content:
i.
CC&R's are to be in effect for 66 years.
ii. Any proposed modifications to the foregoing provisions of
the CC&R's will require approval by the Executive Director.
13
Ordinance NS-2677
Page 17 of 38
5.9 Responsibility For Costs of Work Of Public Art. The City and Owner
agree that Owner shall be responsible for all costs associated with the design, construction,
maintenance and repair of the work of public art provided for in the Public Art Locational Plan.
5.10 City to Receive Contract Documents. Owner shall furnish the City,
upon written request, copies of contracts and supporting documents relating to the work of
public art.
5.11 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's existing regulatory process
shall be governed by the terms of those approvals, and in no event shall such conditions be
affected by the termination, cancellation, rescission, revocation, or default or expiration ofthis
Agreement.
5.12 Moratoria. In the event an ordinance, resolution or other measure is
enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate,
amount, timing, sequencing, or phasing of the development or construction of the Project on all
or any part of the Property or the implementation or construction of a mitigation measure, the
City agrees that such ordinance, resolution or other measure shall not apply to the Project, the
Property or this Agreement.
5. \3 Compliance With Governmental Requirements. Owner shall carry out
the design, construction, 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 of California, the County of Orange, the City, or any other political subdivision
in which the Property is located, and of any other political subdivision, agency, or
instrumentality exercising jurisdiction over the City, the Owner or the Property, including all
applicable federal, state, and local occupation, safety and health laws, rules, regulations and
standards, applicable state and labor standards, applicable prevailing wage requirements, the
City zoning and development standards, City permits and approvals, building, plumbing,
mechanical and electrical codes, as they apply to the Property and the Project, and all other
provisions of the City and its Municipal Code (as they apply to the Property and the Project), and
all applicable disabled and handicapped access requirements, including, without the limitation,
the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq.,
and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements").
6.
ANNUAL REVIEW.
6.1 City and Owner Responsibilities. The City shall, at least every twelve
(12) months during the term of this Agreement, review the extent of good faith substantial
compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section
65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good
faith compliance with the terms of the Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in compliance with the
Agreement after the annual review set forth in Section 6.1 above, the Ciry shall, upon written
request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon
14
Ordinance NS-2677
Page 18 of 38
information known or made known to the City Council, the City Planning Commission and/or
the City Executive Director, the Agreement remains in effect and Owner is not in default.
Owner may record the Letter in the Official Records ofthe County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
7.
DEFAULT.
7.1 Owner Events of Default. Property Owner is in default under this
Agreement upon the happening of one or more of the following events or conditions (each, an
"Owner Event of Default"):
(I) If a material warranty, representation, or statement made or
furnished by Property Owner to the City is false or proves to have been false in any material
respect when it was made; or
(2) A finding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 and Section 6.1
of this Agreement that upon the basis of substantial evidence the Property Owner has not
complied in good faith with one or more of the material terms or conditions of this Agreement;
(3)
Failure to comply with Governmental Requirements;
(4) Any other event, condition, act, or omission which materially
interferes with the intent and objectives ofthis Agreement.
7.2
Procedure upon Default.
(I) Upon an Owner Event of Default, the City through the Executive Director
shall submit to Owner, a written notice of default, in the manner provided in Section 4.10,
identifying with specificity the nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured. Upon receipt of the notice of default, the Owner
shall cure the identified default(s) at the earliest reasonable time after receipt of the notice of
default and shall complete the cure in any event not later than one hundred and twenty (120)
days after receipt of the notice of default, or such longer period as is reasonably necessary to
remedy such default(s), provided that the Owner shall continuously and diligently pursue such
remedy at all times until such default(s) is cured. If Owner has failed to remedy or diligently
proceed to remedy such default(s) after proper notice and expiration of said one hundred and
twenty (120) day cure period or such extended period as provided herein, the City may terminate
or amend this Agreement in accordance with the procedure adopted by the City. Failure or delay
in giving notice of default- shall not constitute a waiver of any default, nor shall it change the
time of default.
15
Ordinance NS-2677
Page 19 of 38
(2) If after the cure period has elapsed, the Executive Director finds
and determines that Owner has not cured the default pursuant to this Section 7.2, Owner shall be
entitled to appeal that finding and determination to the City Council by filing an appeal with the
City Clerk, if at all, within fourteen (14) days after the mailing of such finding and detennination
to Owner, or its successors, transferee, and/or assignees, as the case may be. The City Council
shall act upon the finding and determination of the Executive Director within ninety (90) days
after the filing of such appeal. In the event of a finding and determination that all defaults are
cured, there shall be no appeal by any person or entity.
(3) The City does not waive any claim of defect in perfonnance by
Property Owner, if on periodic review the City does not propose to modify or terminate this
Agreement. .
(4)
Non-performance shall not be excused because of a failure of a
third person.
(5) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Owner, shall be sufficient to tenninate this Agreement
and a hearing on the matter shall not be required.
(6) Adoption of a law or other governmental activity making
performance by the Owner unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the Property Owner.
(7) All other remedies at law or in equity which are not inconsistent
with the provisions of this Agreement are available to the parties to pursue in the event there is a
breach.
7.3 Damages upon Termination. In no event shall Property Owner be
entitled to any damages against the City upon termination of this Agreement for an Owner Event
of Default.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any default or breach, to
specifically enforce any covenants or Agreements set forth in the 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 Encumber. This Agreement shall not prevent or limit
Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion
of the Property or any improvement on the Property by any mortgage, deed of trust, or other
16
Ordinance NS-2677
Page 20 of 38
security device (or any number of them) securing financing with respect to the Property or its
improvement (any such encumbrance, a "Mortgage").
8.2 Entitlement to Written Notice of Default. The mortgagee ofa mortgage
or beneficiary of a deed of trust encumbering the Property or any part thereof and their
successors and assigns ("Mortgagee") shall, upon written request to the City, be entitled to
receive from the City written notification of any Owner Event of Default.
8.3 Periormance of Covenants. The Mortgagee shall have the right, but no
obligation, to perform any term, covenant or condition and to remedy any Owner Event of
Default hereunder within the time periods specified herein, and the City shall accept such
performance with the same force and effect as if furnished by the Owner; provided, however,
that said Mortgagee shall not thereby or hereby be subrogated to the rights of the City.
8.4 Default by the Owner. In the event of an Owner Event of Default that
has not been cured by the Owner or as to which there is no cure period hereunder, the City
agrees not to terminate this Agreement (I) unless and until the City provides written notice of
such default to any Mortgagee and such Mortgagee shall have failed to cure such Owner Event
of Default within ninety business days after the later of delivery of such notice or expiration of
any applicable Owner cure period, and (2) as long as:
(a) In the case of an Owner Event of Default that cannot practicably be
cured by the Mortgagee without taking possession of the Property (which defaults shall not
include defaults "not susceptible of being cured" as defined below), (x) the Mortgagee has
delivered to the City, prior to the date on which the City shall be entitled to give notice of
termination, a written instrument wherein the Mortgagee unconditionally agrees that (subject to
such delays as may be incident to obtaining a relief from stay in the case of a
bankruptcy/dissolution event) it will commence and diligently pursue cure of such Owner Event
of Default promptly following its obtaining possession and; (y) said Mortgagee shall proceed
diligently to obtain possession of the Property (including possession by receiver) (subject to such
delays as may be incident to obtaining a relief from stay in the case of a bankruptcy/dissolution
event) and, upon obtaining such possession, shall proceed diligently to cure such Owner Event of
Default; and
(b) In the case of an Owner Event of Default that is not susceptible to
being cured by the Mortgagee, the Mortgagee shall institute foreclosure proceedings and
diligently prosecute the same to completion (subject to such delays as may be incident to
obtaining a relief from stay in the case ofa bankruptcy/dissolution event) (unless in the
meantime it shall acquire the Owner's right, title and interest hereunder, either in its own name
or through a nominee, by assignment in lieu of foreclosure) and upon such completion of
acquisition or foreclosure such Owner Event of Default shall be deemed to have been cured.
The Mortgagee shall not be required to obtain possession or to continue in
possession as Mortgagee of the Property pursuant to Subsection 8.4(a) above, or to continue to
prosecute foreclosure proceedings pursuant to Subsection 8.4(b) above, if and when such Owner
Event of Default shall be cured. Nothing herein shall preclude the City from exercising any of
its rights or remedies with respect to any other Owner Event of Default during any period of
17
Ordinance NS-2677
Page 21 of 38
such forbearance, but in such event the Mortgagee shall have all of its rights provided for herein.
If the Mortgagee, its nominee, or a purchaser in a foreclosure sale, shall acquire title to Owner's
right, title and interest hereunder and shall cure all Owner Events of Defaults that are susceptible
of being cured by the Mortgagee or by said purchaser, as the case may be, then prior Owner
Events of Default that are not susceptible to being cured by the Mortgagee or by said purchaser
shall no longer be deemed Owner Events of Default hereunder.
Except as set forth herein, nothing contained herein shall require any Mortgagee
to cure any Owner Event of Default.
8.5 Foreclosure. Foreclosure of any Mortgage, or any sale thereunder,
whether by judicial proceedings or by virtue of any power contained in a Mortgage, or any
conveyance of the Project from the Owner to a Mortgagee or its designee through, or in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent
of the City or constitute a breach of any provision of or a default under this Agreement; and upon
such foreclosure, sale or conveyance the City shall recognize the purchaser or other transferee in
connection therewith as the Owner hereunder provided that such purchaser or transferee
assumes, subject to the terms of Section 8.4 above, each and all of the obligations of the Owner
hereunder pursuant to an assumption agreement satisfactory to the City. If any Mortgagee or its
nominee or assignee shall acquire the Owner's right, title and interest hereunder as a result of a
judicial or nonjudicial foreclosure under any Permitted Mortgage, or by means of a deed in lieu
of foreclosure, or through settlement of or arising out of any pending or contemplated
foreclosure action, such Mortgagee shall thereafter have the right to assign or transfer the
Owner's right, title and interest hereunder to an assignee upon obtaining the City's consent with
respect thereto, which consent shall not be unreasonably withheld or delayed. Upon such
acquisition of the Owner's right, title and interest hereunder as described in the preceding
sentence by either Mortgagee, or the assignee or nominee of Mortgagee, or the purchaser from
Mortgagee, assignee or nominee, the City shall immediately execute and deliver a new
agreement or amend this Agreement with such party, upon the written request therefor by such
party given not later than one hundred twenty (120) days after such party's acquisition of the
Owner's right, title and interest hereunder. Subject to the terms of Section 8.4 above, such new
agreement or amended Agreement shall be substantially the same in form and content to the
provisions of this Agreement, except with respect to the parties thereto, and the elimination of
any requirements which have been fulfilled by the Owner prior thereto, and said agreement shall
have priority equal to the priority of this Agreement. Upon execution and delivery of such new
agreement or amended Agreement, the City shall cooperate with the new owner, at the sole
expense of said new owner, in taking such action as may be necessary to cancel and discharge
this Agreement and to remove Owner named herein from the Property.
8.6 Releases. The City agrees that upon written request of Property Owner
and payment of all fees and performance of the requirements and conditions required of Owner
by this Agreement with respect to the Property, or any portion thereof, the City shall execute and
deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form
and substance acceptable to the Orange County Recorder or as may otherwise be necessary to
effect the release.
18
Ordinance NS-2677
Page 22 of 38
9.
MISCELLANEOUS PROVISIONS.
9.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. Ifthere is more than
one signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement
constitutes the entire understanding and Agreement of the parties with respect to the matters set
forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements
between the parties respecting this Agreement, including without limitation the Original
Agreement. All waivers of the provision of this Agreement must be in writing and signed by the
appropriate authorities of the City or of Owner. All amendments to this Agreement must be in
writing signed by the appropriate authorities of the City and Owner, in a form suitable for
recording in the Official Records of Orange County, California. Within ten (10) days following
the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official
Records of Orange County, California. Upon the completion of performance of this Agreement
or its revocation or termination, an appropriate Certificate of Completion acknowledging such
occurrence signed by the appropriate agents of Owner and the City shall be recorded in the
Official Records of Orange County, California.
9.3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section
65864 et seq.; (b) the 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 (c) Owner
shall have the full power and exclusive control of the Property subject to the obligations of
Owner set forth in this Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section I of this
Agreement are part of this Agreement.
9.5 Captions. The captions of this Agreement are for convenience and
reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the
interpretation, construction, or meaning of any of the provisions of this Agreement.
9.6 Consent. Where the consent or approval of a party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with
each other in good faith, and assist each other in the performance of the provisions of this
Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
9.9 Conflicts of Law. In the event that state or federal laws or regulations
enacted after this Agreement has been entered into or the action or inaction of any other affected
19
Ordinance NS-2677
Page 23 of 38
governmental jurisdiction prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps, or permits approved by the City, the parties shall
provide the other party with written notice of such state or federal restriction, provide a copy of
such regulation or policy, and a statement of conflict with the provisions of this Agreement. The
parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to
modify this Agreement to comply with such federal or state law or regulation. Thereafter,
regardless of whether the parties reach an Agreement on the effect of such federal or state law or
regulation upon the Agreement, the matter shall be scheduled for hearing before the Council.
Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The
City Council, at such hearing, shall determine the exact modification or suspension which shall
be necessitated by such federal or state law or regulation pursuant to Government Code Section
65869.5. At the hearing Owner shall have the right to offer oral and written testimony.
9.10 No Reliance By One Party On The Other. Each party has received
independent legal advice from its attorneys with respect to the advisability of executing this
Agreement and the meaning of the provisions hereof. In addition, the provisions of this
Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question.
9.11 Arms Length Transaction. Each party represents and warrants to the
other the following: it has carefully read this Agreement, and in signing this Agreement it does
so with full knowledge of any rights which it may otherwise have, and it has freely signed this
Agreement without any reliance upon any agreement, promise, statement or representation by or
on behalf of the other party or its agents, employees, or attorneys, except as specifically set forth
in this Agreement, and without duress or coercion, whether economic or otherwise.
9.12 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10)
days following the effective date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the City of
Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. NS-2677,
authorizing such execution, and by Property Owner.
Dated this 7th day of March, 2005.
THE CITY OF SANTA ANA
By
DAVIDN. REAM
City Manager
(signatures continued on next page)
20
Ordinance NS-2677
Page 24 of 38
(signatures continued from previous page)
Approved as to Fonn:
By
Joseph W. Fletcher
City Attorney
MAIN STREET CONCOURSE LLC,
a California limited liability company
By: Its Development ~ger,
BDC LLC, / '
a CalifO~aliability company
/0
By: / ..'
j R9D"ert H. Bisno, Its Manager
i
~
21
Ordinance NS-2677
Page 25 of 38
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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Ordinance NS-2677
Page 26 of 38
Prod. No. 511C7
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EXBIBIT I'A"
LEGAL DESCRJ1'nON
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PARCEL A:
'The Nor1h:rly 100.00 feet of!bo! portioo of the La.ad a.lJatted. to Abel Sttaru. :s do.:nòed ill tb.o finol deeroe or
pl.l1itìDa ofthc Ra.o<:ho Slllti.¡o De Santa Ma, whioh was cnIzred Scpt=bor 12, 18681.0 boolo:''B" pogo 410 of
Iudgracnt:; of the District Court of tho 17'" Juelici11 District ill and for Los A~les Cowt)', California, desenòed as
'foUo",:
Commcncin¡¡ ae 1J¡,: ÍIIIIor.IcctiCro ofl!tt ];1$1 liDO 'ofNorth MOÚI.Str...~ as aaid East lino existed 011 J"''=110, 1922,
with the South l.iI1.e oCS«lion 31, TOWNl¡ip 4 Swtb, Rm¡:e \I West, Sm B=arWllo Mcridi2t\; the"". Nonh GJ1 the
East liDe ohaid Main Stroot 150.00 fect; thmc:. Ea.st paa.Uc1 to Ibe South line DC s..w section 145.25 Ceol; thonee
South 150.00 feet; t!u:oce WesC 145.25 fcel to the poio.t ofbcgjmlÏl>¡.
EXCEP'IlNG tbetefromtb.o Wcslz:Ily 3\.00 feo! Ih=ol; a.s ~d to 111. CiIy of SlJItI. Ana b)' deed «-cordedJ""e
IS. 1970 in boo\: 9316, po;¡e 148 of0f6ciaJ ~ords ofOnnge County, CalifOI1lia.
PARCELB:
Tho Southerly 50.00 feet of wt portion of tho I""d allotted 10 Abel Steam, as dc=òed in tho find decree or
putition of tb.o lW>cbo Sonti1:o De S.".. ADa, wbieb was entered Sepb::mber 12, US! In book "Boo pli" ~10 of
1uð¡=ts of the District Cocrt oClbe I'" Juelieill DUtriet III and Cor Los AIIgelcs Col1:ltY, Califol!lÎ1, de.ea'b.d os
foUows:
Co=eing.e thc intencction of the E..c line of North Main Strce!, IS said East line existed onllOUl'Y 10,1922,
wit. th. South tin. oeSeotioll 31, Township 4 South, P..ang!o \I Wes~ &n Becwdi"o Meridi.aa; thouoe Nor\!¡ an thc
Eo-stlio,e of said l-úl.o Slreo! lSO.00 !eel; thonee Ea.st p>nUel to the South lin. of said .oction 145.25 f<et; tbcn<:e
South 150.00 c.et; thence West 145.25 Coot co the point ofbegianmg.
PARCELC:
That portion oC Section3l, ToW11.\!ùp 4 South, RAng. 9 Weat .IIoa:d to Abc! Stc:1rU, as d....rlbed 1.0 the final decree
oEpartition ofth= IWX:bo SlDœgo De SUItt Am, ~cb V>'U cn~redScpll:mbe1' 12,1868 ÍII book. "2" pzge410 of
lud¡m:.ct> ot tbc Dimel Court of Ibe 17'" ludic:jaJ Distriot in ."d Cor Los Angeles County, ~Iifonñ.. dc.c:ib.d as
foUo...,: '. . . . ..
Begincing at ll1e Northwost c:ornor of land fo=ly or G. W. y""CC; rw:nJng t.ÌCJ1e. North 10.50 e!iàiDs to che
SO\1thwat corner orlaod f=-Iyof 1. M. ~¡ tbe:1CQ Ea.st 25.23 wins Ie 1J¡,: South....teoroor of aid land o(l.
M. Kiog¡ thCQçe South 10 cIuiœ 10 the tc,,,uhip ILae, and th=ncc West 1l000g th. Town.hip !i"e to the point o(
bc~, and being ;" 1J¡,: SO\1th~[ q~ o( S«tion 31, TOWl1Såip 4 South, Ra.'l:e 9 W"'~ Salt Bcrurdioo
~. and MOtiwa.l1.
EXCEPTING therefrom the East 6 acres.
ALSO EXCEPTING thoroliom Ih: following:
Bcgincing at the i=ection or the East li.e of North Main S=~ witI1 the South tiDe of Soc!ioo 31, ToWtlShip 4
SO\1th, ~ 9 w..~ Saa B=rdino S... and M'cridi:L~; rw.aing tb.ono. North on th: East lino or North Main.
St:<ot 15.0.00 fec~ thence Ea.st pu¡Uel!O tho Soutb lin. of said Section 31, 145.25 reoe; thence South lSO.oo Ccct;
thence W..t 145.25 r.et 10 th.pom, ofbceimünc.
F;l.LE.ÇA1.'SIL~I~lr'loaoc\CinQ(~
Ordinance NS-2677
Page 27 of 38
TI a "", ?~123 1S:~-;
:310 277 0646
PP.GE.04
ALSO EXCEPTING a strip or w.d along the Southerly line of .aid load as ¡¡r=d w County of Orange by "ecd
recorded Dccem~'9, 1937, m book 915, page .22, record.< ofOrzage County, "..eribed u fOlloM:
Ðcginn;"g at tho Southwest comtr of th11 cet!+ÍC. p",pcrty desctìoed in <!ced 10 J. (\. E<!gcl and Don. A. En¡c[
,"corded in bool; 6&3, page 337 of Official Record> o! Onngc County, Califotma, and tUI1J]Ìn t thcr.ce from. sa:id
point of ~ alOI!8 !be Norlher1y city limits of th= City (I( S&nIa All.. South 83" 39' SO" Wes~ . ndi.. of
140.30 {ec~.a ndiat I",e from said point in said CUl:Ve bun South 29" 41' 40" E1s1; Ih<:uce North...~rly aloogsaid
cum, throu~.. cectn1 aeele oC2S" 59' 00", 63.~ feci 10. Im.t:mgent; thence North 86" 17' 20. East, aloa¡ said
1iU>g""ll",e, 392.9G *ct, more or Less, to a p:åat in the West liDe of tho abo\....n:enâ=:d propettY cltscribed Ú1 deed
II> 1. A. Eagel w Dora Eagd, 'W1Iich point bc.m North I' 30' 20" Eas~ 33.0. feet :from the point of be¡inlWlg;
-mcnoe South I" 30' 20"WC'S~ 33.04 mtalOtig said West liIIe!O rhe.poiot òftieginning. .
PARCBLD:
That pO[ûOIl of Lot 7 ofTnct No. 721, as shown on . map reco~d in book 22, p'c.c 4 oC Misec11a:cous Maps,
records of O,...,&C County, C.liforoJa, desclibed as foUo"'''
Beginning at a pojnt in lb. Northerly ¡me oC.aid Lot 7 d"tant th.etcOII South 88' 28' W<s1 242.01 feel from the
Nartheut eomer oC said Lot 7, and ~ 111..... Southwesterly along a ÇlltVe ÇQlØVC So"thcastctly and h.vin¡ a
ndiw o!2.s0 fee!,.. radi.allmelbrough wdpoœt ofb~ bcari=¡ Soudl 30' 25' F:.a:;~. disCLoee 0£86.39 feet
10 . point or reVerse curve, tbc1ce SOUIh.....bcrly along .:ojd e"",cJ cw<:av: Northwœ-..ctly and hAvill¡ a radiu.s of
203 recr, 0 dis~ce of 71.(}S roct, mon: or lcss, to 0 poiDl which is 104.99 feet Notlhcoat:rly, musunocl alollS Slid
cum ftom the Socthcut C01'1:le. of Lot 6 or said Tract No. 721; thence North 0' 45' Ea.rt, paraUc1...-íth (he Ea.stcrly
!ino of..,d Lot 6, 97.95 fect to.. poin! in the Nartherlylinc oEsaid Lot 7 whicb is distant thereon NoIth 88" 28' Sur
lOO.OS &0'" the Northea.st comer ohaid Lot 6; th.cnce North 8S" 2S' Eaat alODS said Nortbedy Ime 118.40 feet to
the point ofbeginni..'1g.
PARCEL E:
Lot 5 ofTncl No. 721. 1$ shown on. map ~otded ÙI book 22, pace 4 ofMisa;lw.coUS Mips, record. oCOru&"
County, California.
PARCELF:
Th>l portio" of Lots I, 3 .nd 4 ÍI1 Block ^ oC tr.Ià No. 31S >,S sbo...., on a map recorded in book 14, paso 49 DE
Mis"eU.ocouj Mops of said Caunt)', IOsethcr ...fth tb>t po:ti... oELots 1,2,3,4,6 a:d 7 of"lneINo. 721 .. .bo....
on . map rocorded in '00011: 22, page 4 of MisocUax=us Map. DC ..id CoImty..sa!d portions lyin¡ NorthI:r1y oC Ibe
following &:scribed line: ..
Begim:ing: at a point in Cle Southerly line of Lot 2, Bloc\-: A oCsaid TnctNo. 315, dist'llll South 89" 27' 02" Eos~
66.00 feet Crom tbe eC1lleCline of Main Streef, thencc 1'10$ I" 05' 18" E1s1 7l.00 fetllO a line distant 71.00 Cect
Northedy fro... ao.d m.=sun:d at ri¡bC angles 10 .aid Soulh lillt; thctIe. pruaIlel with ~ Soutlt lie of ..id La!s South
89" 27' 02" Eul, 274.27 fcet 10 the beginni~ ofa t::LO¡C1\t curvc cooe.v. Nortb.crly ¡.aviDS a ndi.. (1(933.00 feet;
tb<I:" E.uterly alO1lg uid ewve dwugh a eeetnll ar.gle of 6' 30' 13" an arc length of 105.90 feet Ie a point of
moenc etItVo concave Sowbcr1y, having a radius of 60.00 fe.~ thence Eamrly along s~jd curve through a coutta1
OIIsle of 13" 56' 16" an ue ICI>gdI of 14.60 feet; thellOe aCtcnt to said curve Soulh 82" 00' 59" ¡¡:as~ 33.91 feet to
the beginning ci a tangcDl curve cone...... Nortbcrly, havinc a ..diu.s of 42.00 feet; rhen... Sutaly alooS said curve
tb:'ough a central o.n¡lc of 17" 35' 00" an arc length oC 12.89 reet to a poi.ol of comp"""d curve, co.eave Northerly,
having a ...di.. of946.00 f..~ !heo.. Eos<:tly alon, ..id curve througb.. centnl .~le or I' 47' 47", an arc 1=&<11
of 29.66 feol; th= North 23" .3' 4S" Eas~ 27.78 rcc~' thence North 74' Z6' 48" Ea.s~ 51.73 r""t; !ÀCtlce South 68"
14' 13" Su~ ZI.12 r",,1 to the bcgim>.tng ofa corvo eOCCLveuartb.erly b.vin¡; a nodiu.<ofS35.00 ¡¡'eC; th.".,e "£o.,=ly
c.lon¡¡ saidou"", tb:=g!lI""",1 ~I. or ¡" 43' JS" ~arc I~ of2!.l7 r.et; th..... r:ao¡cntto said curvc North
71" 38' 39" East, 13.06 fc.e to the North line of S&i.d Lot 7, Tract No. 721; Ih..ee ol0118 said North lice North 88"
4S' 12" East, 158.23 feet 10 the North \iDe of O...eos Drive :u shov.u on map of record of survey filed in Iteconl of
J;\LtaA1..\11(.ENt:MS'4tazl\dQc.\4...nt Dc:Ic£4oc
Ordinance NS-2677
Page 28 of 38
31Ø 277 øa4S
PAGE.Ø5
JV- 31 2ee3 15:47
Surveys, boo1<; 10, page 21, """,«Is ot'.aid Coutll)' bein¡. point in. cam: CODd.ve SC<Ithe:ao~rly bavia£ a radius of
2S0.00 feet; Aid line .ball1>e n.cmded W<$Ietly, to i_t the West I;". of..¡d 1.<>t I.
EXCEPTING thereft= that portiOI! of said Lot I in Block A cr'I'tact No. 315 lying W utc:rly of & line ¡>anllel ,.;t ¡
and 66.00 feet East of"the c."tcrlin. ofM1i.u StRCt.., &hown OD sajd zaap of'I'¡¡u:t No. 315.
'ALSO EXCEPTING thetef"rca1 that portion of laid Lot I in BJoclc: A ofïn.ct No. 315 _Ioled ""thin. ~ .
.1uped area bOUDded Wesœrly by ~ Scuth 25.00 Ji:et of said JiDc 66.00 feet Ea.,t of M&Ü1 StRCt cenlcrlJDe;
bounded SlNtherly by tI;. Welt 25.00 feel of1bc liIIe fint above d=n"bcd having. bcarin¡ &lid clistllllCo or South .
89.27' 02" Eaat, 274.2.7 fecI; &lid bounded Nor1lle..,torly by & .!night IiIIe coDCIcctillg the North .,,,iEast &no! poi.ts
. of .said boundacy lines. .
F:\UGAJ.IS"tt2NUMS\OIC'2.1\doc\C...." Þ.icSoc
JUL 31 2øa3 15'47
Ordinance NS-2677
Page 29 of 38
31e 277 8846 PPOE.86
SITE SUMMARY: (P - 2)
SITE AlIEA: 2.89 AC
TOTAL UNITS: 731JN1TS
D[NSITY: 2:ï.3 UNITSI AC
^
(~J
SITE SUMMARY: (P . J)
SITEAAEk 3.12AC
TOTAl UNITS: 70UMTS (90lHLDINGTYPES)
OENSTY: 22.4 UNITS¡ AC
LL'W'
PROJECT ARÜHTECTURAL SITE I'LAN
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EXRTBlT13
EXHIBIT C
Public Art Locational Plan
I. Public art valued at one-half of one percent (0.5%) of the project building permit valuation is
required. Public art shall be comprised of a single art piece (or two or more pieces, as agreed
to by the City's Planning Commission and Owner) to be placed along Main Street at one or
two major entrances to the Project, with the final location to be determined as specified in
paragraph 2.5 of this Agreement. The public art should invite participation and interaction,
inspire, add local meaning, interpret the community by revealing its culture or history, and/or
capture or reinforce the unique character of the new place. A comprehensive Public Art Plan
indicating compliance with this requirement, and which proposes specific pieces of art for
specific locations or applications, shall be submitted to the Planning Commission prior to the
completion of the project's first phase. All public art approved by the Planning Commission
in the Public Art Plan shall be completely installed as provided in paragraph 5.8.1 of this
Agreement. Review and approvals required by the Planning Commission pursuant to
sections 5.8, 5.8.1 or this Exhibit C may be delegated to a committee of same duly
constituted pursuant to the Planning Commission's bylaws.
2. 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.
3.
Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4.
No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
5.
All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination.
6.
All art pieces approved and installed pursuant to the Public Art Plan shall remain on the
project site and may not be removed without the approval of the Planning Commission.
7.
Expenses Not Allowed from Art Allocation
i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
IV. Utility fees associated with activating electronic or water generated artWork.
v. Lighting elements not integral to the illumination of the art piece.
Ordinance NS-2677
Page 32 of 38
vi.
Publicity, public relations, photographs, educational materials, business letterhead
or logos bearing artwork image.
Dedication ceremonies, including sculpture unveilings or grand openings.
vii.
8. To be eligible, the proposed work of public art shall not be:
i. a mass produced object from a standard design;
ii. a reproduction, whether produced by mechanical or other means, of an original work
of art;
iii. elements of building, designed by the building's architect, as opposed to a public
artist commissioned for the express purpose of creating a unique work of public art;
nor
iv. a water feature, in whole or in part.
Ordinance NS-2677
Page 33 of 38
Development Agreement Ko. 04-04
EXHIBIT D
Phasing Plan
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Ordinance NS-2677
Page 34 of 38
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City Place Project
Public Improvements
Improvement
Location
Install a traffic signal
Law.son and Memory Lane
Install a crosswalk and associated traffic signal
Memory Lane and Crescent
Construct new cub, gutter and sidewalk
Property frontage of Lawson Way
Construct new sidewalk
Property frontage of Memory Lane
Replace damaged curb, gutter and sidewalk
Property frontage of Main Street
Street light installation
Property frontage of Lawson Way
Repave from centerline to edge of gutter
Property frontage of Lawson Way
Underground all existing overhead utility lines
Along property frontage of Memory Lane
EXHIBIT
E
Ordinance NS-2677
Page 37 of 38
Development Agreement No. 04-04
EXHIBIT F
Residential Tower Study Area
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Ordinance NS-2677
Page 38 of 38