HomeMy WebLinkAbout11B - HUTTON CENTRE MIXED USE SPECIFIC DEVELOPMENT
ORDINANCE NO. NS-2690
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ADOPTING THE HUTTON CENTRE MIXED
USE SPECIFIC DEVELOPMENT DISTRICT (SD-76) AND
REZONING THE PROPERTY LOCATED AT 1-7 AND 9-11
EAST HUTTON CENTER DRIVE AND 101, 200, 201 AND
203 EAST SANDPOINTE AVENUE FROM GENERAL
COMMERCIAL (C2) ZONING DISTRICT TO HUTTON
CENTRE MIXED USE SPECIFIC DEVELOPMENT DISTRICT
(SD-76) (M NO. 2005-01)
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find, determine
and declare as follows:
A. The Applicant is requesting approval of an amendment application, five
conditional use permits, a development agreement, three tentative tract
maps and four variances to allow the construction of three residential high
rise buildings with 500 condominium units, a four to six-story condominium
project with 276 units, a five story mixed-use building with 15 residential
units and 10,000 square feet of office space and 14,000 square feet of retail
and restaurant spaces at 1, 9 and 10 East Hutton Centre Drive and 101 East
Sandpointe Avenue.
B. On May 23, 2005, the Planning Commission held a duly noticed public
hearing and unanimously voted to recommend that the City Council:
1. Adopt a resolution certifying Final Environmental Impact Report No.
2004-02 and approve the mitigation monitoring program and
statement of overriding considerations for the MacArthur Place South
project.
2. Adopt an ordinance approving Amendment Application No. 2005-01.
3. Adopt an ordinance approving Development Agreement No. 2005-02.
4. Adopt a resolution approving Conditional Use Permit No. 2005-10 as
conditioned for the Lake Towers residential project.
5. Adopt a resolution approving Conditional Use Permit No. 2005-11 as
conditioned for the Cinema Tower and Loft residential projects.
6. Adopt a resolution approving Conditional Use Permit No. 2005-12 as
conditioned for the Cinema Retail project.
11 B-1
7. Adopt a resolution approving Conditional Use Permit No. 2005-13 as
conditioned for the Cinema Restaurant project.
8. Adopt a resolution approving Conditional Use Permit No. 2005-15 as
conditioned for the Integral residential project.
9. Adopt a resolution approving Vesting Tentative Tract Map No. 2005-
02 (County Map No. 16621) as conditioned for the Integral project.
10. Adopt a resolution approving Vesting Tentative Tract Map No. 2005-
03 (County Map No. 16622) as conditioned for the Cinema Tower
and Loft projects.
11. Adopt a resolution approving Vesting Tentative Tract Map No. 2005-
04 (County Map No. 16626) as conditioned for the Lake Towers
project.
12. Adopt a resolution approving Variance No. 2005-05 as conditioned to
allow a reduction in setbacks for the Lake Towers project.
13. Adopt a resolution approving Variance No. 2005-07 as conditioned
for a reduction in parking and tandem parking for the Lake Towers
project.
14. Adopt a resolution approving Variance No. 2005-10 as conditioned
for a reduction in parking for the Cinema residential, retail and
restaurant uses and to allow tandem parking.
15. Adopt a resolution approving Variance No. 2005-12 as conditioned to
allow tandem parking for the Integral condominium project.
C. On June 20, 2005 the City Council of the City of Santa Ana held a duly
noticed public hearing and at that time considered all testimony, written and
oral.
D. Amendment Application No. 2005-01 has been filed with the City of Santa
Ana to adopt the Hutton Centre Mixed Use Specific Development District
(SD-76) and to rezone the properties located at 1-7 and 9-11 E. Hutton
Centre Drive, 101, 200, 201 and 203 E. Sandpointe Avenue from General
Commercial (C2) Zoning District to Hutton Centre Mixed Use Specific
Development District (SD-76) (M NO. 2005-01)
1. SD-76 would create two zones.
a. Zone 1 would allow professional, business and administrative
offices; museum, libraries and galleries; retail and service
uses; restaurants, cafes and eating establishments other than
those specified in section 41-365.5; coffee houses, tea houses
and bakeries; theaters (with a Conditional Use Permit);
Hotels (with a Conditional Use Permit); child care facilities
11 B-2
(with a Conditional Use Permit); nightclubs, bars and indoor
entertainment (with a Conditional Use Permit);
establishments selling alcoholic beverages (with a
Conditional Use Permit); banquet facilities (with a
Conditional Use Permit); and health clubs (with a
Conditional Use Permit).
b. Zone 2 would allow professional, business and administrative
offices; museum, libraries and galleries; nightclubs, bars and
indoor entertainment (with a Conditional Use Permit);
establishments selling alcoholic beverages (with a
Conditional Use Permit); banquet facilities (with a
Conditional Use Permit); multi-family residential uses (with
a Conditional Use Permit); Live/work communities in
compliance with the standards (with a Conditional Use
Permit); outdoor farmers markets (with a Conditional Use
Permit); full service cafes and restaurants (with a
Conditional Use Permit); coffee houses, tea houses and
bakeries (with a Conditional Use Permit); theaters (with a
Conditional Use Permit); health clubs (with a Conditional
Use Permit); and retail and service uses (with a Conditional
Use Permit).
2. Amendment Application No. 2005-01 is consistent with the General
Plan, including but not limited to its goals and policies to:
a. Promote the balance of land uses to address basic community
needs. Land Use Element Goal No. 1.0.
b. Promote land uses which enhance the City's economic and
fiscal viability. Land Use Element Goal No. 2.0.
c. Support developments that create a business environment
that is safe and attractive. Land Use Element Policy No. 2.8.
d. Enhance development sites and districts which are unique
community assets that enhance the quality of life. Land Use
Element Goal No. 4.0.
3. The City Council has weighed and balanced the general plan's
policies and has determined that based upon this balancing that the
MacArthur Place South project is consistent with the purpose of the
general plan.
4. The City Council also adopts as findings all facts presented in the
Requests for Council Action dated June 20, 2005 accompanying this
matter.
5. For these reasons, and each of them, Amendment Application No.
2005-01 is hereby found and determined to be consistent with the
General Plan of the City of Santa Ana and otherwise justified by the
public necessity, convenience, and general welfare.
11 B-3
E. Final Environmental Impact Report No. 2004-02, the Mitigation Monitoring
Program, and the Statement of Overriding Considerations which came
before the City Council on June 20, 2005. At the June 20, 2005 meeting,
the City Council also adopted an ordinance rezoning the property (M No.
2005-01), a resolution approving Conditional Use Permits (Numbers 2005-
10, 2005-11, 2005-12, 2005-13, 2005-15), Vesting Tentative Tract Maps
(Numbers 2005-02, 2005-03, 2005-04), and Variances (Numbers 2005-05,
2005-07, 2005-10, 2005-12). This resolution incorporates by reference, as
though fully set forth herein, the ordinance and resolutions and said Final
Environmental Impact Report, Mitigation Monitoring Program, and Statement
of Overriding Considerations, and all of their respective facts, findings and
conclusions in support of this ordinance and the findings made herein.
Section 2. Section 41-610 of the Santa Ana Municipal Code is amended to read
in full as follows (new language in bold deleted language in strikeout):
Sec. 41-610. Wall and fence requirements in the residential zones
(a) All walls and fences located in the RE, R1, R2, R3, R4, and at any residential
use in a specific development zoning district, excluding SD-19 and SD-76, shall not
exceed the following:
(1) Front yard fences four (4) feet in height on those streets defined and
designated in the circulation element of the city's general plan as arterial
streets and three (3) feet in height on all other streets, measured from the
top of the curb or established grade upward.
(2) All other walls and fences shall not exceed eight (8) feet in height, measured
from the top of the curb or established grade upward.
(3) In other districts, walls and fences shall not exceed ten (10) feet in height,
and shall not exceed four (4) feet in height where the wall or fence extends
into the required front yard or any required landscaped area.
(b) In the RE, R1, R2, R3, R4, and at any residential use in a specific
development zoning district, excluding SD-19 and SD-76, no front yard fence over
eighteen (18) inches in height shall be constructed without the issuance of a permit
therefore by the planning and building agency. The permit shall be issued if the fence
conforms to the following provisions:
(1) Front yard fences shall be composed of only the following materials: wood;
wrought iron; tubular steel, stone; brick; stucco; or decorative block such as
slump stone or split-faced block:
(2) Spikes, stakes or other sharp metal objects shall not be permitted;
(3) Arbors located in the required front yard or required landscaped area shall
only be permitted over walkways, and shall not exceed ten (10) feet in
height, six (6) feet in width and three (3) feet in depth.
(c) Any wall or fence expressly permitted by this section or any other section of
this chapter shall comply with the provisions set forth in chapter 36 of this Code.
(d) In the RE, R1, R2, R3, R4, and at any residential use in a specific
11 B-4
development zoning district, excluding SD-19, chain link fencing material is not permitted
except in a rear yard or side yard which is not viewable from a public street.
(e) In the RE, R1, R2, R3, R4, and at any residential use in a specific
development zoning district, excluding SD-19, barbed wire is not permitted as part of a
wall or fence.
Fence or wall shall mean a barrier which serves to enclose, divide, or protect
an area, or is used to prevent intrusion from the outside of a parcel to the
interior of such parcel, exclusive of any such barrier which forms part of a
building or structure.
Front yard fence shall mean a fence or wall (as defined in this section) within
the required front yard or any required landscape area of a parcel, built from
permitted materials and designed and constructed so as to permit visibility
between or through fence elements over eighteen (18) inches in height.
Those portions of the front yard fence eighteen (18) inches in height and
lower may be constructed of opaque or solid materials. Elements over
eighteen (18) inches in height shall be spaced no closer than four (4) inches
apart, with each member no wider than four (4) inches across. Elements
wider than four (4) inches across shall be considered pilasters. Pilasters may
be no wider than sixteen (16) inches across, and may be no closer than
eight (8) feet on center. except for pilasters supporting a four-foot wide
maximum entry gate.
Barbed wire includes both straight-line and looped ("concertina") varieties.
Public street does not include alleys.
Arbor means a decorative framework or structure formed of vines, branches,
or lattice work.
Section 3. The real properties located at 1-7 and 9-11 East Hutton Centre
Drive, 101, 200, 201 and 203 East Sandpointe Avenue are hereby reclassified from
General Commercial (C2) zoning district to Hutton Centre Mixed Use Specific
Development District (SD-76). Amended Sectional District Map number 31-5-9 showing
the above described change in use district designation, is hereby approved and attached
hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein.
(M No. 2004-01).
Section 4. Hutton Centre Mixed Use Specific Development District (SD-76) as
set forth in Exhibit "B", attached hereto and incorporated as though fully set forth herein, is
approved adopted in its entirety.
Section 5. 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,
(f)
meanings:
(1 )
(2)
(3)
(4)
(5)
As used in this section, the following terms shall have the following
11 B-5
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
ADOPTED this _ day of
,2005.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Kylee O. Otto
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Ordinance No. NS-2690 to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
11 B-6
Hutton Centre Mixed Use Specific Development District
150-76\
TABLE OF CONTENTS
SECTION 1. Applicability of Ordinance
SECTION 2. Purpose
SECTION 3. Objectives and Policies
SECTION 4. Permitted Improvements
SECTION 5. Permitted Uses
SECTION 6. Conditionally Permitted Uses
SECTION 7. Development Standards
1. Maximum Density
2. Minimum Parcel Size'
3. Overall Project
a. General Requirements
b. Building Setbacks
c. Building Height
d. Screening
4. Parking
a. General Requirements
b. Residential Components
c. Other Uses
5. Building Elevations
SECTION 8. Miscellaneous Standards
1. Landscaping
2. Signage
3. Common Areas
4. Public Art
Exhibit "B"
Page 1 of8
11 B-7
Hutton Centre Mixed Use Specific Development District (SD-76)
SECTION 1 APPLICABILITY OF ORDINANCE
The specific development zoning district, as authorized by Chapter 41,
Division 26, of the Santa Ana Municipal Code, is specifically subject to the
regulations contained in this ordinance for the express purpose of
establishing use district regulations. All other applicable chapters, articles
and sections of the Santa Ana Municipal Code shall apply unless expressly
waived or superseded by this ordinance. Use district regulations
established in Chapter 41, Article III, of the Santa Ana Municipal Code for
zoning districts other than the SO zoning district may be incorporated
herein by reference. The boundaries of the Hutton Centre Mixed Use
Specific Development District shall be defined pursuant to
Attachment 1 (attached hereto and incorporated as though fully set forth
herein). Hutton Centre Mixed Use Specific Development District shall
have two zones, Zone 1 and Zone 2, as depicted in Attachment 1.
SECTION 2 PURPOSE
The Specific Development No. 76 (SD-76) use district regulations are
hereby established for the express purpose of protecting the health, safety
and general welfare of the City by encouraging the use of innovative
planning concepts and principles, promoting and enhancing the value of
properties, and encouraging orderly development. This district is intended
to provide standards for areas located in a District Center and adjacent to
high capacity arterial streets.
SECTION 3 OBJECTIVES AND POLICIES
The Hutton Centre Mixed Use Specific Development District is located
within the southeastern area of the City. The Hutton Centre Mixed Use
Specific Development District encompasses a mixture of office, restaurant,
retail and residential land uses.
The following site development policies are designed to encourage greater
convenience, efficiency, excellence of design and visual appeal than is
typically achieved with usual residential and commercial development.
The policies of the Hutton Centre Mixed Use Specific Development District
include the following:
Exhibit "B"
Page 2 of 8
11 B-8
. Uses shall be integrated within the overall Hutton Centre campus
in terms of architecture, pedestrian orientation and circulation,
vehicular circulation, landscape and urban design.
· Internal circulation shall separate customer traffic from loading,
delivering, and pedestrian traffic.
· Access to and from the adjacent arterial streets and highways shall
be limited, in order to ensure efficient and safe vehicular
circulation.
· Adequate open spaces and landscaping shall be provided for all
uses and shall be integrated with building and parking areas.
· A well-planned system of pedestrian linkages, enhanced with
water features, seating areas, and other pedestrian amenities,
shall be developed for convenient access between all uses
developed on the site.
· Walkways, parking and open spaces shall be provided with
adequate lighting for safe and convenient nighttime use.
SECTION 4 PERMITTED USES IN ZONE 1
The permitted land uses within Zone 1 shall be as follows:
1. Professional, business and administrative offices.
2. Museums, libraries and galleries.
3. Retail and Service Uses.
4. Restaurants, cafes, and eating establishments, other than those
specified in section 41-365.5.
5. Coffee houses, tea houses, and bakeries.
SECTION 5 CONDITIONALLY PERMITTED USES IN ZONE 1
The following uses are permitted within Zone 1 upon the approval of a
conditional use permit in accordance with the Santa Ana Municipal Code:
1. Theaters.
2. Hotels.
3. Child care facilities.
4. Nightclubs, bars and indoor entertainment uses whether
freestanding or part of another permitted or conditionally permitted
Exhibit "B"
Page 3 0[8
11 B-9
use. Adult entertainment businesses shall not be permitted within
Zone 1 .
5. Establishments selling or serving alcoholic beverages.
6. Banquet facilities, subject to development standards set forth In
section 41-199.1.
7. Uses open between the hours of 12:00 midnight and 5:00 a.m.
8. Health Clubs.
SECTION 6 PERMITTED USES IN ZONE 2
The permitted land uses within Zone 2 shall be as follows:
1. Professional, business and administrative offices.
2. Museums, libraries and galleries.
SECTION 7 CONDITIONALLY PERMITTED USES IN ZONE 2
The following uses are permitted within Zone 2 upon the approval of a
conditional use permit in accordance with the Santa Ana Municipal Code:
1. Nightclubs, bars and indoor entertainment uses whether
freestanding or part of another permitted or conditionally permitted
use. Adult entertainment businesses shall not be permitted within
Zone 2.
2. Establishments selling or serving alcoholic beverages.
3. Banquet facilities, subject to development standards set forth in
section 41-199.1 .
4. Uses open between the hours of 12:00 midnight and 5:00 a.m.
5. Multi-family residential uses.
6. Live/work communities in compliance with the following standards:
a. Residential use is permitted only in combination with
individual work space in a manner which provides an
integrated working and living environment.
b. A live/work unit shall be at least nine hundred (900) square
feet in size.
c. The residential component of a live/work unit shall meet the
following standards:
Exhibit "B"
Page 4 of8
11 B-1 0
I. It shall have access to separate bathroom facilities,
including a water closet, a wash basin, and a bathtub
or shower.
ii. It shall have separate kitchen facilities including a
kitchen sink, cooking appliances and refrigerator. All
such facilities shall have a clear working space of at
least thirty (30) inches in front.
iii. It shall comply with all Housing Code requirements as
modified by section 8-2700 of this Code.
iv. In-unit laundry facilities shall be required.
v. No residential component shall be permitted on the
ground floor of the live/work unit.
7. Outdoor Farmers Markets.
8. Full service cafes and restaurants, which may include incidental take-out
service. Full service cafes and restaurants shall be limited to those that
provide sit down dining areas and exclusive table service for ordering
and delivering meals and beverages.
9. Coffee houses, tea houses, and bakeries.
10. Health Clubs.
11. Retail and service uses.
SECTION 8 DEVELOPMENT STANDARDS IN ZONE 2
The following general development standards are applicable to this project:
1. Maximum Development Intensity
Consistent with the General Plan, the maximum residential density
allowed for the site shall be 90 dwelling units per acre within SD-76.
The maximum floor area ratio for other permitted uses shall be 1.0.
2. Minimum Parcel Size
The minimum parcel size shall be 2.5 acres.
3. Overall Proiect
The development plans and material samples shall be submitted to
and approved by the Planning Commission pursuant to Section 41-
593.4 prior to issuance of any building permits.
a. Building Setbacks
Exhibit "B"
Page 5 of8
11 B-11
Setbacks are established to enhance pedestrian space
throughout the district, create compatible relationships
between existing and future building elevations, and
recognize opportunities to create new open spaces such as
plazas, pedestrian ways and landscaped areas. Major setback
conditions are discussed below by street:
i. Main Street:
All projects shall maintain a building setback of 15
feet. Entry steps to residential units may encroach
into this setback area in order to provide a transition
between public and private spaces.
II. MacArthur Boulevard:
All residential projects shall maintain a building
setback of 15 feet. Entry steps to residential units
may encroach into this setback area in order to
provide a transition between public and private
spaces.
iii. Sandpointe Avenue:
All projects shall maintain a building setback of 10
feet. Entry steps to residential units may encroach
into this setback area in order to provide a transition
between public and private spaces.
iv. Hutton Centre Drive:
All projects shall maintain a building setback of 10
feet.
b. Building Height
The building height of a project shall not be approved
where the Federal Aviation Administration (FAA) has
determined such height to be a hazard to air
navigation.
c. Screening
All appurtenances shall be located outside any
required setback and shall be screened from view.
4. Parkinq
Exhibit "B"
Page 6 of8
11 B-12
a. General Requirements
i. Parking shall not encroach into required setbacks at
grade. Parking structures below residential buildings
shall not encroach within required setbacks along
Main Street or MacArthur Boulevard.
ii. Parking structures that incorporate trash enclosures
shall maintain sufficient vertical clearances to facilitate
trash truck access.
Hi. Glare from the parking structure lighting shall not be
visible from any public right-of-way.
IV. The ceiling of all parking levels shall be painted white
and be maintained to improve illumination and
enhance safety within the parking structure.
v. The parking structure shall comply with the Santa Ana
Municipal Code sections pertaining to the Police
Department's Security requirements, including
parking lot lighting levels.
vi. The parking structure shall comply with the Santa Ana
Police Department's parking structure design
guidelines.
b. All uses shall comply with the parking provisions outlined in
Chapter 41 of the Santa Ana Municipal Code (SAMC).
5. Landscapinq
Prior to issuance of any building permit, a detailed Landscape Plan
shall be submitted to and be approved by the Planning
Commission.
6. Siqnaqe
a. All signage shall comply with the Santa Ana Municipal Code.
b. Prior to issuance of any sign permits or certificates of
occupancy for any building or portion thereof, a
comprehensive sign program for the entire site, including
directional signs and graphics for the parking structure, shall
be submitted to and be approved by the Planning
Commission.
Exhibit "B"
Page 7 of8
11 B-13
7. Public Areas
Prior to issuance of any building permits, a detailed plan of the
public areas shall be submitted to and approved by the Planning
Commission.
a. Exterior kiosks, carts or other temporary outdoor uses
are not allowed unless specifically submitted to and
approved by the Planning Commission.
b. The public areas shall incorporate seating, benches,
street furniture and landscaping to provide visual
interest and additional amenities within the public
areas. All seating, benches, street furniture surfaces,
pedestrian-level walls and similar amenities shall be
made of a durable material such as concrete or
painted iron and be designed to minimize effects from
vandalism, skateboarding and weather and
incorporate graffiti resistant coatings.
c. Pedestrian amenities shall be provided such as
lighting, planters, drinking fountains, unit pavers, and
bicycle racks.
d. Trash receptacles should be located in high-activity
areas, such as plazas and other public open spaces.
The style shall be compatible with other public areas'
furnishings.
e. The property shall be maintained free of graffiti. All
graffiti shall be removed within 48-hours of
occurrence.
Exhibit "B"
Page 8 0[8
11 B-14
ORDINANCE NO. NS - 2691
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SANTA ANA, THE GRAND
PLAN 1, LLC AND THE GRAND PLAN 2,LLC
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
May 23, 2005, 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 owners of the MacArthur Place South Project
at Hutton Centre 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 June 20, 2005, approved an Environmental Impact
Report in conjunction with this Project and adopted a mitigation monitoring plan.
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: This ordinance shall not be effective unless and until Ordinance
No. NS-2690 and Resolution No. 2005-064 become effective. If said ordinance and
resolution 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.
Ordinance NS -2691
Page 1 of 3
11 B-15
SECTION 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.
ADOPTED this
day of
,2005
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Council members
ABSTAIN: Councilmembers
NOT PRESENT: Council members
Ordinance NS -2691
Page 2 of 3
11 B-16
CERTIFICATE OF ATTESTATION AND ORIGINALITY
\, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-2691 to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance NS -2691
Page 3 of 3
11 B-17
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 S 6103
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
And
THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC
Dated: August 4, 2005
DOCSOC/llI0339vI1124579-0001
11 B-18
Table of Contents
Page
1. RECITALS.. .............................. ............ ..................................... ................... ........................ ...1
1.1 P urpo se. . .............. .............................. .................................................... ......... .............. 1
1.2 Code Authoriza tio n ................................................................ .... .................................1
1.3 Owner ........................ ................ ........................................................................ ..........1
1.4 Planning Commission - Council Hearings ................................................................1
1.5 Co un cil Fin din gs.......... ...................... ............ .............. ......................................... ....... 2
1.6 City Ordinan ce .................................. ................ ............ ............... ........................... .... 2
2 . DE FINITI ON S ................. ......................... .......................... .......... .................. ......................... 2
3 . EXHIBIT S .... .......................... ..... ........ ................. ................. .......................... ........... .............. 7
4. GENERAL PROVISION S. ..................................................................................................... 7
4.1 Dura tio n of Agreemen t ............................................................................................... 7
4.2 Assi gnm en t ............ ........... ............................................. ....... ...... ..... .............. .......... ..... 7
4.3 Permitted Assignments ..................... ........................................................ .................. 8
4.4 Amendment or Cancellation of Agreement .............................................................. 8
4.5 H 0 I d Harml ess ........................................ ....... .................... .......................................... 9
4.6 Binding Effect of Agreement ...................................................................................... 9
4.7 Relationship of the Parties.......................................................................................... 9
4.8 No ti ces ................. ............................. .................. ..................................... ..................... 9
5. DEVELOPMENT OF THE PROPERTY. ..........................................................................10
5.1 Owner Obligations .............................................................. ......... .............................1 0
5.1.1 Coo pera tive Agreement ...............................................................................10
5.1.2 Public Improvements ...................................................................................10
5 .1.3 Phasing ............ ....... ...... ............... .................... .............................................. .11
5.1.4 FAA App roval...............................................................................................11
5.1.5 A vigation Easement ......................................................................................11
5.1.6 Limit on Fast Food and Take Out Restaurants .........................................11
5.1. 7 Development, Construction and Completion of Public Art...................... 11
5.1.8 Inclusionary Housing Fee ............................................................................11
5.1.9 In-Lieu Park Development Fee ...................................................................11
5.1.10 Covenants, Conditions, and Restrictions.................................................... 12
5.1.11 Parking Structure Easement .......................................................................12
5.1.12 Lake Improvements ................... .............. ..................................... ....... .........13
5.1.13 Use of "City of Santa Ana" ........................................................................13
5.1.14 Compliance With Governmental Requirements........................................ 13
5.1.15 Obligation to Submit Working Drawings and Commence
Cons tru cti 0 n ... ..................................................... ...... .................................... 13
5.2 City Obligations.. ............................... ...................... ... ........................ .......................13
5.2.1 Vested Rights to Develop .............................................................................13
5.2.2 Non-application of Changes in Applicable Rules ......................................13
5.2.3 Special Taxes and Assessments ...................................................................14
5.2.4 Agreed Changes and Other Reserved Powers ...........................................14
5.2.5 Subsequent Development Approvals ..........................................................14
5.2.6 Mo ra toria . ................ ............. ............................ ................. ...........................14
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Table of Contents
( continued)
Page
5.2.7 Timing of Development ................................................................................14
5.2.8 Development Impact Fees ............................................................................14
5.3 Coopera tive Agreement .................................... ............. ........ ........ ...........................14
6. ANNUAL REVIEW. .............................................................................................................14
6.1 City and Owner Responsibilities..............................................................................14
6.2 Review Letter ............. .................. ........ .............. ................................. ....................... 15
6.3 Failure of Periodic Review .......................................................................................15
7. D EF A UL T . .............................................................................................................................15
7.1 Events of Default by Owner .....................................................................................15
7.1.2 Events of Default by City .............................................................................15
7.2 Procedure upon Breach ............................................................................................16
7.3 T ermina tio n ...............................................................................................................16
7.5 Institution of Legal Action........................................................................................ 1 6
7.6 M ul ti pie Own ers .................. ........ .................... ................................. ........................ .16
7.7 Alternative Dispute Resolution ................................................................................17
7 .8 Interim Reli ef............................................ .................. .................... ........... ........ ........18
7.9 Entitlements Survive Termination ..........................................................................18
7.10 Miscellaneous. ............................................................................................................18
8. MORTGAGEE PROTECTION S ............. ...........................................................................18
8.1 Right to Owner/N otice/Multiple Mortgagees .........................................................18
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure........... 18
8.3 Mortgagee Not Obligated Under the Agreement ...................................................19
8.4 No Liability... ............ .................................................................................................19
8.5 No Amendment or Termination ..............................................................................19
8.6 Condemnation or Insurance Proceeds ....................................................................19
8.7 Title by Foreclosure ..................................................................................................19
8.8 Del ega tio n to Mortgagee ...........................................................................................19
8.9 No Obligation to Cure...............................................................................................20
8.1 0 Se p ar ate Agree men t.. ........ .............................................................. .......................... 20
8.11 E sto p pel C ertifi ca te... .................. ................................................... .......... ................. 20
8.12 Co nfli cts .................. ........................ ..... ............................................. .................. ....... 20
9. MISCELLANE 0 US PRO VISI ON S. ................................................................................... 20
9.1 Rules of Constructio n ............................................................................................... 20
9.2 Entire Agreement, Waivers and Amendments ....................................................... 20
9.3 Project as a Private U ndertaking............................................................................. 21
9.4 In co rpo ra tio n of Recitals .......................................................................................... 21
9.5 Cap ti 0 n s .............................................................. ................ ....................................... 21
9.6 Co nsen t ................. ........................................... ........... ......... ....................................... 21
9. 7 Covenant of Coo pera tio n .......................................................................................... 21
9.8 Time 0 f Essence .......... ................................... ................................ ............................21
9.9 Co nfli cts of Law ......................................................................................................... 21
9.10 Enforced Delay; Extension of Time of Performance .............................................21
9.11 Reco rdin g ........................................................................ ...........................................22
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Table of Contents
( continued)
Page
9 .12 Subdivision of Project ............................................................................................... 22
9.13 S ev era bili ty ......................................... ............... ........................ ................ ................ 22
9 .14 Waiver ........................................................................................................................ 22
9.15 No Personal Liability.................... ............................................................................22
9.16 Co nditio ns of Discretio nary Approvals ................................................................... 22
9.1 7 Precede n ce ............... .................................. ..................... ...................... ........... .......... 22
EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
PROPERTY DESCRIPTION
PUBLIC ART PLAN
COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS
PUBLIC IMPROVEMENTS
A VIGA nON EASEMENT
LAKE IMPROVEMENTS
III
DOCSOC/l110339vll/24579-0001
11 B-21
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA,
THE GRAND PLAN 1, LLC AND THE GRAND PLAN 2, LLC
This 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 (referred to herein as "City"), THE GRAND PLAN 1, LLC, a
California limited liability company ("GPl") and THE GRAND PLAN 2, LLC, a California limited
liability company ("GP2"). GPl and GP2 are collectively referred to herein, along with their
permitted successors and assigns, as "Owner".
1. RECITALS. The Agreement is entered into with reference to the following facts:
1.1 Purpose.
(1) The purpose of this Agreement is to facilitate the development of
approximately 9.79 acres of real property, located at the southeast comer of MacArthur Boulevard
and Main Street (the "Property") as a mixed use project with for-sale residential condominiums and
office/commercial/retail uses more particularly described in the definition of "Project" in
Section 2.43.
(2) The Property is described in Exhibit A and consists of an
approximately 2.04 acre parcel currently owned by GPl ("GPl Parcel"), and an approximately 6.68
acre parcel currently owned by GP2 ("GP2 Parcel") and an approximately. 78 acre parcel which is
the subject of a contract to purchase by Owner (the "Fried Parcel"). The GPI Parcel and GP2 Parcel
are referred to in Exhibit A as the "Owner ParceL"
1.2 Code Authorization. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the economic risk of development, the
Legislature of the State of California adopted the Development Agreement Act which authorizes any
city to enter into binding development agreements establishing certain development rights in real
property with persons having legal or equitable interests in such property.
To ensure that the City remains responsive and accountable to its residents while
pursuing the benefits of development agreements contemplated by the Legislature, the City:
(i) accepts restraints on its police powers contained in this Agreement consistent with existing law,
only to the extent and for the duration required to achieve the mutual objectives of the Parties; and
(ii) to offset such restraints, seeks extraordinary and significant public infra structure facilities and
other supplemental benefits, as set forth in Section 5.1, in addition to those available through the
existing regulatory process.
1.3 Owner. Owner represents and warrants that it owns the Owner Parcel and is
under contract to purchase the Fried Parcel. The Property is currently a mix of vacant and occupied
uses.
1.4 Planning Commission - Council Hearings. On May 23, 2005, 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. The Planning Commission recommended to the City Council of City that it execute this
DOCSOC/I 1 10339vl 1/24579-0001
11 B-22
Agreement. On June 20, 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.
1.5 Council Findings. The Council finds that this Agreement is consistent with
the General Plan, applicable Specific Planes) as well as all other applicable ordinances, plans,
policies and regulations of the City.
1.6 City Ordinance. On July 5, 2005, the Council adopted Ordinance
No. NS-2691 approving this Agreement. The ordinance becomes effective thirty (30) days thereafter
(the "Effective Date").
2. DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Affiliate" means any entity of which not less than fifty percent (50%) is
owned by (i) Owner and/or its managing member and/or Nexus, in the case of Owner or (ii) Integral
or the principal shareholders ofIntegral, in the case ofIntegral.
2.2 "Agreement" means this Development Agreement, including all exhibits
attached hereto and all amendments and modifications thereto.
2.3
of this Agreement.
"Annual Review" means the annual review process as described in Section 6
2.4 "Applicable Rules" means all rules, regulations, ordinances and official
plans and policies of the City in force as of the Effective Date as included within the SAMC, this
Agreement and the Entitlements.
2.5 "Applicable Processing Fees and Charges" means all processing fees and
charges required by the City uniformly in connection with all new construction, including, but not
limited to, fees for land use applications, project permits, building applications, building permits,
grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street
vacations, certificates of occupancy and other similar permits. Applicable Processing Fees and
Charges shall not include Development Impact Fees or any exaction, impact fee, sharing fee or other
fee or charge that is in the nature of a Development Impact Fee.
2.6 "Avigation Easement" means the Avigation Easement attached hereto as
Exhibit E and incorporated herein by reference.
2.7 "Breach" is defined in Section 7.2.
2.8 "Cinema Tower" is defined Section 2.43.
2.9 "City Agency" means each and every agency, department, board,
commission, authority, employee, and/or official acting under the authority of the City, including
without limitation the City Council and the Planning Commission.
2.10 "City Attorney" means the City Attorney of the City.
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2.11 "City Council" means the City Council of the City which is the legislative
body of the City pursuant to Section 65867 of the California Government Code.
2.12 "City Manager" means the chief administrative officer of the City.
2.13 "Condo-Office Project" is defined in Section 2.44.
2.14 "Commencement of Construction" means the point in time when concrete
is being poured for foundations for a particular Element pursuant to a validly issued permit.
2.15 "Cooperative Agreement" means the Cooperative Agreement for Offsite
Improvements attached hereto as Exhibit C and incorporated herein by reference, which Cooperative
Agreement and the obligations hereunder with respect thereto, shall survive termination of this
Agreement.
2.16 "Default" is defined in Section 7.2.
2.17 "Development Agreement Act" means Article 2.5 of Chapter 4 of Division I
of Title 7 (Sections 65864 through 65869.5) of the California Government Code.
2.18 "Development Impact Fees" means impact fees, linkage fees, exactions, or
fair share charges or other similar impact fees or charges (whether collected as a condition to
issuance of demolition, grading and/or building permits, or otherwise) imposed by the City on and in
connection with new development pursuant to the Applicable Rules. If at any time following the
Effective Date it becomes legal for any of the foregoing fees or charges to be collected with property
taxes, then any such amounts collectible in such manner shall constitute Development Impact Fees
hereunder. Development Impact Fees do not include (a) Applicable Processing Fees and Charges,
(b) impact fees, linkage fees, exactions, assessments or fair share charges or other similar fees or
charges imposed by other governmental entities and which the City is required to collect or assess
pursuant to applicable law (e.g., school district impact fees pursuant to Government Code
Section 65995), or (c) increases in Development Impact Fees under the Applicable Rules, occurring
after the Effective Date but only if and to the extent any such increase does not exceed the amount of
such Development Impact Fee as of the Effective Date increased at a rate not to exceed the rate of
increase established by the "Construction Costs Index- Los Angeles" published by Engineering
News-Record or substitute index mutually agreed upon by the parties should that index be
discontinued, from the Effective Date to the date such Development Impact Fee is paid.
2.19 "Effective Date" means August 4, 2005, the date upon which the ordinance
approving this Agreement becomes effective.
2.20 "Element" is defined in 2.43.
2.21 "Entitlements" mean the City approvals for the Project granted pursuant to
the Applicable Rules as set forth in detail in the Final Environmental Impact Report for
Environmental Review No. 2004-02; Tentative Tract Map Nos. 2005-02, 2005-03, 2005-04 (County
Map Nos. 16621, 16622 and 16626); Variance Nos. 2005-05, 2005-07, 2005-10, and 2005-12;
Zoning Ordinance Amendment No. 2005-01 (creating Specific Development No. 76 aka SD-76);
Conditional Use Permit Nos. 2005-10, 2005-11, 2005-12, 2005-13 and 2005-15; and the "MacArthur
Place Master Plan" dated April 11, 2005, as each are conditioned in City Council Resolution
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No. 2005-064. The parties understand and acknowledge that the implementation of the Entitlements
will require Subsequent Development Approvals, the approval, conditional approval or rejection of
which shall be in accordance with the Applicable Rules. The word "Entitlements" shall include an
interior design standard for all Residential Units of 42 dBA CNEL for purposes of attenuating noise,
to be met with all of the unit's windows and doors closed. For each Element that incorporates
Residential Units, a qualified acoustical consultant shall conduct an analysis demonstrating
compliance with said interior noise design standard to be submitted to the City's Building and
Planning Safety Agency for review and approval prior to the issuance of Utility Release(s).
2.22 "Final Design Documents" means the final design documents for the Public
Art consistent with the Public Art Plans.
2.23 "Fried Portion" is defined in Section 2.43.
2.24 "Integral" means Integral Communities I, a Delaware Corporation.
2.25 "General Plan" means the General Plan of the City.
2.26 "Inclusionary Housing Fee" is defined in Section 5.1.8.
2.27 "In-Lieu Park Fee" is defined in Section 5.1.9.
2.28 "Litigation" shall mean any lawsuit or cross-action, including the legal action
and/or alternative dispute resolutions described in Section 7, challenging the validity of this
transaction or any Element thereof or the rights of either party hereunder and/or the rights of either
party to engage in the acts and transactions contemplated by this Agreement.
2.29 "Mezzanine Lender" means a lender who provides funds for the
construction of the Project, or parts thereof, and takes a security interest in an asset other than the
Property or Project such as the ownership interest of the Owner in the Property or Project.
2.30 "Mortgage" means any mortgage, deed of trust, pledge, encumbrance, sale
leaseback, or other security interest with respect to the Property and/or Project and/or the interests of
the Owner in the Property and or Project and/or this Agreement, granted to a lender not affiliated
with Owner, made in good faith and for fair value, encumbering all or any part of the Property and/or
Project or Owner's interest in the Property and/or Project and/or this Agreement, given by Owner for
the purpose of obtaining construction financing of the Project, or any portion thereof.
2.31 "Mortgage Parcel" is defined in Section 8.1.
2.32 "Mortgagee(s)" means (i) any institutional lender that is a mortgagee or
beneficiary under a deed of trust, (ii) a Mezzanine lender and/or (iii) any person or entity acquiring
fee title under a first or second mortgage who has delivered a Mortgagee Notice to the City or any
transferee of the above.
2.33 "Mortgagee Notice" is defined in Section 8.2.
2.34 "Nexus" means Nexus Development Corporation/Central Division, Inc., a
California Corporation.
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2.35 "Notice" and "Notice Period" are defined in Section 7.2.
2.36 "Owner" means GPl, GP2 and/or permitted assignees or transferees each
with respect to the part of the Property owned by it.
2.37 "Owners' Association(s)" means the aSSOCIatIon of owners of the
Residential Units ("Homeowners' Association(s)) and/or associations formed by the owners of the
retail portions and/or office portions of the Project formed for the purpose of governing and
controlling the common areas associated with each Element and the Project, as a whole.
2.38 "Parties" means collectively Owner and the City.
2.39 "Party" means anyone of Owner or the City.
2.40 "Plaintiff' means any party seeking relief or compensation through Litigation
whether as plaintiff, petitioner, cross-complainant or otherwise.
2.41 "Planning Commission" means the Planning Commission of the City and
the planning agency of the City pursuant to Section 65867 of the California Government Code.
2.42 "Periodic Review" is defined in Section 6.1.
2.43 "Project" is the development of the Property pursuant to the Entitlements,
with the following:
(1) Three (3) twenty-five (25) Story Towers consisting of two (2) towers
with three hundred fifty (350) for sale residential condominium units (each a "Lake Tower" or
together the "Lake Towers") and One (1) tower with one hundred fifty (150) for-sale residential
condominium units (the "Cinema Tower");
(2) A six (6) story tower consisting of fifteen (15) for-sale residential
condominium units on four (4) floors and approximately ten thousand (10,000) square feet of office
on two (2) floors (the "Condo/Office Project");
(3) A five (5) or six (6) story building containing two hundred seventy-
six (276) for-sale residential condominium units (the "Integral Project"); and
(4) Approximately thirteen thousand eight hundred seventy-one (13,871)
square feet of commercial space consisting of approximately eight thousand five hundred eighty
(8,580) square feet of restaurant ("Restaurant Portion") and approximately five thousand two
hundred ninety (5,290) square feet of retail (the "Fried Portion"). The Restaurant Portion and Fried
Portion are collectively referred to herein as the "Retail Project".
Each of the Lake Towers, the Cinema Tower, the Condo/Office Project, Integral Project and
the Retail Project are each an "Element."
5
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2.44 "Property" is legally described in Exhibit A.
2.45 "Public Art" is defined in Section 5.1. 7.
2.46 "Public Art Fee" is defined in Section 5.1.7.
2.4 7 "Public Art Plan" is set forth in Exhibit B attached hereto and incorporated
herein by reference.
2.48 "Public Improvements" are described III Exhibit D attached hereto and
incorporated herein by reference.
2.49 "Reserved Powers" means the rights and authority excepted from this
Agreement's restrictions on the City's police powers and which are instead reserved to the City. The
Reserved Powers include the power to enact and implement rules, regulations, ordinances and
policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in
conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found
to be injurious or detrimental to the public health and/or safety; (b) are Uniform Codes; (c) are
required to comply with mandates under state and federal laws, rules and regulations (whether
enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of
a state or federal court; (d) relate to Applicable Processing Fees or Charges imposed and/or increased
after the Effective Date; (e) or relate to increases in Development Impact Fees occurring after the
Effective Date but only if and to the extent described in Section 2.l7( c), or (f) are consented to by
Owner.
2.50 "Residential Unit(s)" means each of the for-sale residential units within the
Project.
2.51 "Retail Project" is defined in Section 2.43.
2.52 "Restaurant Portion" is defined in Section 2.43.
2.53 "SAMC" means the Santa Ana Municipal Code.
2.54 "Signs" means the gateway entry signs described in Section 5.1.7.
2.55 "Subsequent Development Approvals" means those certain actions taken by
any City Agency after the Effective Date, in connection with the implementation of the Entitlements
or any approved modification of the Entitlements, or any requested minor modifications of the
Entitlements.
2.56 "Term" means the applicable period of time during which this Agreement
shall be in effect and shall bind the City and Owner, as described in Section 4.1.
2.57 "Uniform Codes" means those building, electrical, mechanical, fire and other
similar regulations of a City-wide scope which are based on recommendations of a multi-state
professional organization and become applicable throughout the City, such as, but not limited to, the
California Building Code, the California Electrical Code, the California Mechanical Code, or the
California Fire Code (including those amendments to the promulgated Uniform Codes which reflect
6
DOCSOCIIII0339v11l24579-0001
11 B-27
local modification to implement the published recommendations of the multi-state organization and
which are applicable City-wide)
2.58 "Utility Release(s)" means the formal approval of the City Building
Department, following its inspection, that Residential Unites) may be released for initial connection
to the electrical power system, water service system, gas service system, and sanitary sewer system.
Utility Release(s) do not include temporary utility service provided to any structure during
construction.
2.59 "Work(s) of Public Art" is defined in Section 5.1.7.
3. EXHIBITS. The following documents referred to in the Agreement are attached to
this Agreement and are identified as follows:
Exhibit
Designation
A
Description
Property Legal Description
Referred to
in Section(s)
1.1.1(2),
2.44
2.46,5.1.7
2.15,5.1.1
B
C
Public Art Plan
Cooperative Agreement for Off-Site
Improvements
Public Improvements
A vigation Easement
Lake Improvements
2.47,5.1.2
2.6, 5.1.5
5.1.12
D
E
F
4. GENERAL PROVISIONS.
4.1 Duration of Agreement. The term of this Agreement shall be for ten (10)
years; provided, however that the Owner may request one two-year extension from the Executive
Director of the Planning and Building Safety Agency, which request shall not be unreasonably
denied and provided further that this Agreement shall automatically terminate upon the latter to occur
of (i) completion of construction of the entire Project or (ii) the granting of Certificates of Occupancy
(or similar permission to occupy) for the final Element of the Project and sale of all Residential units.
4.2 Assignment. Except as provided in Section 4.3 and prior to completion of
the Project or any Element thereof, Owner (and/or Integral with respect to the Integral Project, if
owner assigns the Integral Project to Integral) shall not have the right to transfer or assign this
Agreement with respect to all or any portion of the Property to any person, entity (public or private),
partnership, joint venture, firm or corporation unless the written consent of the City is first obtained,
acting in its reasonable discretion. In exercising its reasonable discretion, the City shall limit its
review to the development experience and financial capability of the proposed assignee or transferee
and shall approve any such assignment or transfer if the proposed assignee or transferee has financial
capability and development experience with respect to the Project equal to or greater than the
managing member of Owner (or Integral in the case of the Integral Proj ect after assignment of the
Integral Project). Any transfer or assignment of rights under (i) Section 4.3, or (ii) requiring City
Council consent under this Section 4.2 shall include an assignment and assumption agreement
confirming that the duties obligations and liabilities arising from this Agreement with respect to all or
any portion of the Property shall be assumed by the transferee. To the extent permitted by law, the
rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or
7
DOCSOCII ] 10339v] ]/24579-000]
11 B-28
proceedings under any provisions of the Bankruptcy Act, and such assignment or transfer shall be, to
the extent permitted by law wholly void and of no force and effect unless such assignment or transfer
has been consented to by the City Council.
During the term of this Agreement, any approved assignee or transferee of the rights
under this Agreement shall observe and perform all of the duties and obligations of Owner contained
in this Agreement as such duties and obligations pertain to the portion of the Property transferred or
assigned. Any and 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 development by them in accordance with the provisions of this Agreement. Following a
permitted assignment herewith the assignor shall have no further rights or obligations with respect to
the Project or Element assigned, as the case may be.
4.3 Permitted Assignments. The prohibition against transfer of this Agreement
with respect to all or any portion of the Property as described in Section 4.2 above shall not apply to,
and the City hereby consents to, any transfer of this Agreement with respect to all or any portion of
the Property to:
a. Any business entities such as limited partnerships, limited liability
companies, joint ventures or other similar entities formed for the purpose of performing Owner's
obligations under this Agreement, provided Owner, Nexus and/or Curtis R. Olson retains operational
and managerial control of any such entity.
b. Nexus and/or Curtis R Olson or any Affiliate.
c. One or more Mortgagees.
d. Integral or any Affiliate thereof with respect to the Integral Project or
any single purpose entity created by Integral, or any Affiliate thereof, formed for the purpose of
constructing the Integral Project.
e. DF#l LLC, David R. Fried, and/or A&D Properties, and/or any
company or corporation more than fifty percent (50%) owned by DF#l LLC, David R. Fried and/or
A&D Properties.
f. Buyer's of Residential Units.
g. Owners' Association(s) with respect to common areas.
h. Tenants, ground lessees and/or purchasers of the retail and/or office
spaces.
4.4 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. The term
"Agreement" or "Development Agreement" as used herein shall include any amendment properly
approved and executed.
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4.5 Hold Harmless. Owner agrees to and shall hold City, its officers, agents,
employees, consultants, special counsel, and representatives harmless from liability for damages,
restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from construction
activities with respect to the Project by the Owner or their contractors, subcontractors, agents,
employees, or other persons acting on their behalf; the Owner further agrees to provide a defense on
behalf of the City, including fees and costs for special counsel to be selected by the City and
approved by the Owner, regarding any Litigation. Notwithstanding the above, in the event of any
Litigation the parties hereby agree to affirmatively cooperate in defending said action.
4.6 Binding Effect of Agreement. The burdens of the Agreement bind, and the
benefits of the Agreement inure, to the parties' successors in interest.
4.7 Relationship of the Parties. The contractual relationship between City and
Owner arising out of the Agreement is one of independent contractor and not agency. This
Agreement does not create any third party beneficiary rights.
4.8 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered
in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
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
If to Owner, to:
Cory W. Alder
President, Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
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11 B-30
and
Matt Kaufman
Senior Vice President, Development and Operations Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
and
Thomas P. Clark, Jr., Esq.
Stradling Y occa Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
telefacsimile (949) 725-4100
and
R. Michael Joyce, Esq.
Allen Matins Leck Gamble & Mallory LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
telefacsimile (949) 553-8354
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed
as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given twenty-four (24) hours after the time
set forth on the transmission report issued by the transmitting facsimile machine, addressed as set
forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city
holidays shall be excluded.
5. DEVELOPMENT OF THE PROPERTY.
5.1 Owner Obligations. In consideration for the City entering into this
Agreement and performing its obligations hereunder and in order to effectuate the premises, purposes
and intentions set forth in this Agreement and the Development Agreement Act, Owner hereby
agrees to the following obligations.
5.1.1 Cooperative Agreement. The Owner and the City, together with
other parties, have concurrently executed the Cooperative Agreement. Owner agrees to comply in all
respects with its obligations under said Cooperative Agreement.
5.1.2 Public Improvements. Owner shall construct the Public
Improvements prior to the issuance of a Certificate of Occupancy for the first Element unless
otherwise approved by the Director of Public Works.
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5.1.3 Phasing. The Owner acknowledges and agrees that the
Commencement of Construction of the Integral Project cannot commence until the Commencement
of Construction has occurred on either of the Lake Towers or the Cinema Tower.
5.1.4 FAA Approval. Owner shall obtain and maintain, during the term of
this Agreement, any and all necessary approvals from the FAA for the Project. Should such
approvals lapse, and not be reinstated or reapproved prior to the issuance of a building permit for
either of the Lake Towers and/or Cinema Tower, the City shall have the right to delay the issuance of
building permits for either of the Lake Towers and/or Cinema Tower until such approvals are
reinstated or reapproved.
5.1.5 Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute the Avigation Easement in favor of the City. Owner and City
may make non-substantive alterations in the A vigation Easement prior to its execution, to the extent
such changes are approved by Owner and City (as to content by the City Manager, and as to form by
the City Attorney).
5.1.6 Limit on Fast Food and Take Out Restaurants. At no time during
the Term shall the Project include retail space which is devoted to "fast food" and "take out"
restaurants. For purposes of this Agreement, a restaurant shall not be deemed to be a "fast food" or
"take out" restaurant if it provides sit-down dining areas and primary table service for ordering and
delivering meals and beverages, and take out service ancillary to such services.
5.1.7 Development, Construction and Completion of Public Art. Owner
shall include within the Project, (i) two (2) gateway entry signs ("Signs"), and (ii) a single or grouped
permanent work(s) of public art ("Work(s) of Public Art") consistent with the Public Art Plan
(collectively referred to herein as the "Public Art") at a cost not to exceed Five Hundred Thousand
Dollars ($500,000) ("Public Art Fee").
5.1.8 Inclusionary Housing Fee. Owner shall pay to the City the sum of
Three Thousand Dollars ($3,000) for each Residential Unit contained in each Element ("Inclusionary
Housing Fee"). The Inclusionary Housing Fee shall be paid with respect to each Element containing
Residential Units at such time as 75% of the Residential Units within such Element have received
Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including but
not limited to preparation of one or more elements of its general plan or for zoning amendments),
conceptual design, final design, bid preparation, award of bid, property appraisal, property
acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated
existing affordable housing in the City.
5.1.9 In-Lieu Park Development Fee. The Owner shall pay an in-lieu
park development fee in the amount of Two Million Six Hundred Thousand Dollars ($2,600,000)
with respect to the Residential Units within the Project ("In-Lieu Park Development Fee") payable
for each Element in which Residential Units are located at such time as 75% of the Residential Units
within such Element have received Utility Releases, based on a fraction the numerator of which is the
total number of Residential Units in an Element and the denominator of which is the total number of
Residential Units in the Project.
The City shall use not more than twenty five percent (25%) of the In-lieu Park
Development Fee for the acquisition of the land for parks and the construction of capital
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improvements and deferred maintenance at existing parks at any location within the City and not less
than seventy five percent (75%) of the In Lieu Park Development Fee 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. If a special tax district, benefit assessment district or other obligation is created for park
purposes, inclusionary housing purposes and/or to fulfill any obligation under the Cooperative
Agreement such district or other obligation shall not include the Property.
5.1.10 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC&R's) must be provided and approved by the Planning and Building Agency's
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:
(1) To the extent permitted by law, no more than four residents
shall occupy a Residential Unit with less than three (3) bedrooms and no more than five (5) residents
shall occupy a Residential Unit with three (3) bedrooms.
(2) No home occupancy shall be permitted in a unit, except in
accordance with Section 41-192 et seq. of the Santa Ana Municipal Code.
(3) Assignment of repair of perimeter walls and common areas,
including landscaping, will be specified in the CC&R's in the event of damage.
(4) Patios and balconies shall not be utilized for the storage of
household items, except (A) furniture designed for outdoor use, (B) barbecues, and (C) plants
including plant racks and stands.
(5) Disclosure and release: 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.,
MacArthur Place, Griffin Towers, John Wayne (SNA) Airport, and surrounding property zoned
and/or devoted to high density residential and commercial use), and shall provide a release of claims
against the City by the buyer of each Residential Unit which may arise from or relate to the disclosed
matters.
(6) Terms and Content:
i. CC&R's are to be in effect for an initial period of
ninety-nine years and then automatically expanded for successive one hundred year periods unless
terminated by the joint consent of the City and not less than seventy five percent of those entitled to
vote.
ii. Any proposed material modifications to the CC&R's
which effect the City's interests will require approval by the Executive Director of Planning and
Building Safety Agency.
5.1.11 Parking Structure Easement. Owner shall assign any and all rights
it has to use the "Teacher's" parking structure located on Assessor's Parcel Number 411-081-22,
together with any transfer or assignment of the Restaurant Portion.
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5.1.12 Lake Improvements. Owner shall use commercially reasonable
efforts to obtain approval of the Hutton Centre Owners' Association to install the lake improvements
specified in Exhibit F to this Agreement.
5.1.13 Use of "City of Santa Ana." All advertising, stationary and other
identification of the Project controlled by Owner shall identify it as being located in the "City of
Santa Ana" or "Santa Ana." The postal address of the project shall at all times be denominated as
"Santa Ana, California."
5.1.14 Compliance With Governmental Requirements. Owner shall carry
out the design and construction of the Project in substantial conformity with the Applicable Rules
and all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the
United States, the State of California, the County of Orange, 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, and all applicable disabled and handicapped access requirements, including,
without the limitation, the Americans With Disability Act, 42 U.S.C. S 12101 et seq., Government
Code S 4450 et seq., and the Unruh Civil Rights Act, Civil Code S 51 et seq. ("Governmental
Requirements").
5.1.15 Obligation to Submit Working Drawings and Commence
Construction. Owner shall submit building permit applications for the first Element of the Project
to the City's Building Department on or before the third (3rd) anniversary date of the Effective Date
and Commencement of Construction of the first phase Element shall occur on or before the sixth (6th)
anniversary date of the Effective Date.
5.2 City Obligations. In consideration for Owner entering into this Agreement
and performing its obligations hereunder and in order to effectuate the purposes and intentions set
forth in this Agreement and the Development Agreement Act, the City hereby agrees during the
Term as follows:
5.2.1 Vested Rights to Develop. Owner is hereby granted the vested right
to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved
Powers.
5.2.2 Non-application of Changes in Applicable Rules. Any change in,
or addition to, the Applicable Rules, including, without limitation, any change in the General Plan,
zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after
the Effective Date, including, without limitation, any such change by means of ordinance, initiative,
referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason
whatsoever, however denominated, and adopted by the City Council, Planning Commission or any
City Agency, or by the electorate, as the case may be, which would, absent this Agreement,
otheIWise be applicable to the Project and which would conflict with the Applicable Rules, shall not
be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or
are otheIWise expressly allowed by this Agreement. In the event that state or federal laws or
regulations enacted after this Agreement has been entered into, prevent or preclude compliance with
one or more provisions of this Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations.
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5.2.3 Special Taxes and Assessments. Owner shall have the right, to the
extent permitted by law to protest, oppose and vote against any and all special taxes, assessments,
levies, charges and/or fees imposed with respect to any assessment districts, Mello-Roos or
community facilities districts, maintenance districts or other similar districts.
5.2.4 Agreed Changes and Other Reserved Powers. This Agreement
shall not preclude application to the Project of rules, regulations, ordinances and officially adopted
plans and policies in conflict with the Applicable Rules where such additional rules, regulations,
ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner
and the City in accordance with the requirements of Section 6.7 of this Agreement or (b) result from
the Reserved Powers.
5.2.5 Subsequent Development Approvals. The City shall require Owner
to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or
the Reserved Powers. City hereby agrees that it shall condition any Subsequent Development
Approvals based only on the Applicable Rules and/or Reserved Powers.
5.2.6 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, City agrees that, unless required by applicable state law, such ordinance, resolution or
other measure shall not apply to the Project, Property or this Agreement, unless such changes are
adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision, of this
Agreement.
5.2.7 Timing of Development. The parties acknowledge that Owner
cannot at this time predict when or if the Property will be developed. Such decisions depend upon
numerous factors which are not within the control of Owner such as market orientation and demand,
interest rates, absorption, completion and other similar factors. Because the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of
the parties therein to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over such parties' agreement, it is the parties' intent
to cure that deficiency by acknowledging and providing that except as provided in Section 5.1.3, and
subject to Section 5.1.15, Owner shall have the right to develop the Property at such rate and at such
time as Owner deems appropriate within the exercise of its subjective business judgment.
5.2.8 Development Impact Fees. Except as to increases permitted under
Section 2.17( c), Development Impact Fees imposed by the City with respect to the Project shall be
only those Development Impact Fees in force and effect as of the Effective Date.
5.3 Cooperative Agreement. The City shall comply in all respects with its
obligations under the Cooperative Agreement.
6. ANNUAL REVIEW.
6.1 City and Owner Responsibilities. City shall, at least every twelve (12)
months during the term of this Agreement, review the extent of good faith substantial compliance by
Owner with the terms of this Agreement ("Periodic Review"). Pursuant to Government Code
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Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its
good faith compliance with the terms of the Agreement at the Periodic Review.
6.2 Review Letter. If Owner is found to be in compliance with the Agreement
after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the
"Letter") stating that based upon information known or made known to the City Council, the City
Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner
is not in default. Owner may record the Letter in the Official Records of the County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
7. DEFAULT.
7.1 Events of Default by Owner. Owner is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by Owner to the City in conjunction with the Project is false or proves to have been false in any
material respect when it was made;
(2) A finding and determination made by the City following a Periodic
Review under the procedure provided for in Government Code Section 65865.1 that upon the basis
of substantial evidence the Property Owner has not complied in good faith with one or more of the
terms or conditions of this Agreement;
(3) Failure to substantially comply with Governmental Requirements;
(4) The failure of Owner to comply with the requirements of Section 5.1
hereof.
(5) Any other event, condition, act or omISSIOn of Owner which
materially interferes with the intent and objectives of this Agreement.
7.1.2 Events of Default by City. City is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by City to the Owner in conjunction with the Project is false or proves to have been false in any
material respect when it was made;
(2) Failure of the City to comply with the provisions of Section 5.2.
hereof.
(3) Any other event, condition, act or omission of City Agency which
materially interferes with the intent and objective of this Agreement, including, without limitation,
the construction of the Project.
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7.2 Procedure upon Breach. Upon the occurrence of any of the events
described in Sections 7.1 and/or 7 .1.2,and prior to termination ( a "Breach"), the non-defaulting party
shall give the defaulting party written notice specifying the nature of the alleged Breach and, when
appropriate, the manner in which said Breach may be satisfactorily cured ("Notice"). If the
defaulting party fails to cure within thirty (30) days after receipt of Notice ("Notice Period"), or in a
case where a Breach cannot be reasonably cured within such Notice Period, fails to commence such
cure within the Notice Period and/or, thereafter, fails to diligently pursue such cure to completion
then the defaulting, party is in "Default". Failure or delay in giving Notice shall not constitute a
waiver of any Breach, nor shall it change the time of Default.
7.3 Termination. This Agreement may be terminated by either party in the event
of Default by the other. Owner's obligation to pay the fees set forth in Sections 5.17, 5.18 and 5.19
of this Agreement shall survive termination, if termination is due to Owner's Default.
7.4 Damages and Remedies.
(1) In no event shall either party be entitled to any damages against the
other upon termination of this Agreement in the absence ofa Default.
(2) The Owner shall not be liable for any general, special or
compensatory damages to City or the Owner's Default hereunder; provided however Owner shall be
responsible for any Default under Sections 5.1.7,5.1.8 and/or 5.1.9 but only to the extent of the fees
set forth therein, without penalty, but including interest from the date such fees were due until paid at
the same rate of interest imposed by the Orange County Superior Court as post-judgment interest.
(3) The City shall not be liable for any general, special or compensatory
damages to Owner or to any successor or assignee or transferee of Owner for the City's Default
hereunder.
(4) In the event of the failure of the obligation described III
Section 5.1.15, the City's sole remedy shall be termination.
7.5 Institution of Legal Action. In addition to any other rights or remedies, and
except as provided in Section 7.4, either party may institute legal action to cure, correct, or remedy
any Default, terminate or confirm or reject the propriety of a termination, specifically enforce any
covenants or agreements set forth in the Agreement, or enjoin any threatened or attempted violation
of the Agreement; or to obtain any remedies consistent with the purpose and term 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.
7.6 Multiple Owners. Because the Project may be developed by Owner or by
one or more assignees of Owner, the Parties acknowledge and agree that the provisions of this
Section 7 relating to any Default by Owner with respect to its obligations, and the City's enforcement
rights with respect thereto, including any rights of termination and the limited rights to seek damages,
shall relate only to the portion of the Property actually owned by the specific Owner whose act or
omission constituted such Default. Other portions of the Property owned by a different non-
defaulting Owner (provided such non-defaulting Owner is not in Default hereunder with respect to its
Property) and/or any other permitted assignee provided such permitted assignee(s) are not in Default
hereunder with respect to its/their Property shall not be affected nor shall the rights of such non-
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defaulting Owner or other assignee(s) hereunder be impaired by any such Default relating to the
portion of the Property not owned by it.
7.7 Alternative Dispute Resolution. Owner may elect in its sole and absolute
discretion, to have any legal disputes described herein determined by arbitration in Santa Ana,
California, before a sole arbitrator in accordance with the laws of the State of California. The
arbitration shall be administered by JAMS pursuant to its Streamline Arbitration Rules and
Procedures. Judgment on the "award", as defined in Code of Civil Procedure Section 1283.4, may be
entered in any court having jurisdiction. Each party shall bear its own costs.
ARBITRATION NOTICE: BY INITIALING IN THE SPACE BELOW EACH PARTY IS
AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF
OR RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL BINDING
ARBITRATION, AND EACH PARTY IS GIVING UP ANY RIGHTS EACH SUCH PARTY
MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE BELOW EACH PARTY IS GIVING UP ITS JUDICIAL RIGHT
TO DISCOVERY AND APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE
COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. THE PARTIES
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
EACH PARTY HAS READ AND UNDERSTANDS THE FOREGOING AND AGREES TO
SUBMISSION OF ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR
RELATING TO THIS AGREEMENT TO NEUTRAL BINDING ARBITRATION IN ACCORDANCE
WITH THIS AGREEMENT.
Owner
City
The "award" shall be made by the arbitrator within sixty (60) days after the matter has been
submitted to arbitration.
Prior to the appointment of the arbitrator and within ten (10) days of the date of
commencement of the arbitration the parties shall submit the dispute to JAMS for mediation. The
parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of
neutrals, and then promptly scheduling the mediation proceedings. The parties covenant that they
will participate in the mediation in good faith, and that they will share equally in its costs. All offers,
promises, conduct and statements, whether oral or written, made in the course of the mediation by
any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS
employees are confidential, privileged and inadmissible for any purpose, including impeachment, in
any arbitration or other proceeding involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its
use in the mediation. If the dispute is not resolved within thirty (30) days from the date of the
submission of the dispute to mediation (or such later date as the parties may mutually agree in
writing) the administration of the arbitration shall proceed forthwith while the mediation may
continue, if the parties so agree. Unless otherwise agreed by the parties, the mediator shall be
disqualified from serving as arbitrator in the case. Pendency of the mediation shall not preclude a
party from seeking provisional remedies in aid of the arbitration from a court of appropriate
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jurisdiction, and the parties agree not defend against any application for provision relief on the
ground that a mediation is pending.
7.8 Interim Relief. In the event that Project, or any part, is delayed as a result of
any action under Section 7.5 and/or Section 7.7, Owner's obligation to pay fees under Sections 5.1.7,
5.1.8 and/or 5.1.9 shall be suspended until such action is resolved in favor of continuing the Project.
7.9 Entitlements Survive Termination. The parties acknowledge that the
Entitlements survive termination of this Agreement unless and until the City takes action, within its
police power authority to modify and/or revoke all or any portion of such Entitlements, or unless and
until termination of the Entitlements occurs automatically, if ever. Accordingly, if this Agreement is
terminated and, provided that the Entitlements are not modified or revoked in accordance with the
City police power, the City shall not collect and/or impose the fees set forth in Sections 5.1.7,5.1.8
and/or 5.1.9 in connection with development pursuant to the Entitlements.
7.10 Miscellaneous.
(1) City does not waive any claim of defect in performance by Owner, if
on Periodic Review the City does not propose to modify or terminate this Agreement.
(2) Non-performance shall not be excused because of a failure of a third
person.
(3) Adoption of a law or other governmental actIvIty making
performance by either party unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the other party.
8. MORTGAGEE PROTECTIONS
8.1 Right to OwnerlNotice/Multiple Mortgagees. Owner shall have the
absolute right to encumber Owner's right, title and interest in, to and under this Agreement and the
Property pursuant to one or more Mortgages. Because certain portions of the Project may be
developed by one or more assignees, the Parties acknowledge and agree that different Mortgages
may encumber the Property and that there may be a separate Mortgage in effect with respect to
separate parcels within the Property. It is the intention of the Parties that the rights and protections
granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such
Mortgagee's Mortgage is a lien (each a "Mortgage Parcel"), and to the rights, privileges and
obligations under this Agreement relating to such Mortgage Parcel.
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure.
With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the
City delivers any Notice or demand to Owner with respect to any Breach by Owner under this
Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall
deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect
that Owner has failed to cure a Breach ("Mortgagee Notice"); provided that Owner or Mortgagee has
provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights
granted by the City are concerned) have the right, at its option, within thirty (30) days after the
receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the
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mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented
from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall
be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Agreement shall
be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or
any portion thereof, without first having expressly assumed Owner's obligations to the City by
written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be
deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or
remedy a Owner default which requires title and/or possession of the Site (or portion thereof) if and
to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to
obtain title and/or possession and thereafter the Mortgagee diligently pursues such proceedings to
completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults
shall be waived.
8.3 Mortgagee Not Obligated Under the Agreement. Unless a Mortgagee
expressly assumes Owner's Obligations to the City in accordance with 8.2 above, no Mortgagee shall
in any way be obligated by the provisions of this Agreement, nor shall any covenant or any other
provision in this Agreement be construed so to obligate such Mortgagee. Nothing in this Agreement
shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel
to any uses or to construct any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
8.4 No Liability. No Mortgagee shall have any personal liability beyond its
interest in the Mortgage Parcel acquired by it through enforcement of its Mortgage for the
performance or payment of any covenant, liability, warranty or obligation hereunder, and the City
agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for
payment or discharge of any such covenant, liability, warranty or obligation.
8.5 No Amendment or Termination. This Agreement shall not, without the
prior written consent of all Mortgagees holding Mortgages on each portion of the Property to be
affected thereby, be amended so as to (a) terminate this Agreement prior to the expiration of the
Term hereof (except as provided in Section 8.4 above with respect to such Property); or (b) change
any provision of this Agreement which, by its terms is specifically for the benefit of Mortgagees or
specifically confers rights on Mortgagees. No amendment to this Agreement affecting the Property
or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such
Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest
should it become a party hereto.
8.6 Condemnation or Insurance Proceeds. Nothing in this Agreement shall
impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and/or
condemnation proceeds which are otherwise payable to Owner granting such Mortgage.
8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the
provisions contained in this Agreement applicable to any of the Mortgage Parcel shall be binding on
and for the benefit of any person who acquires title to the property, or any part thereof, by
foreclosure under a Mortgage or transfer by deed in lieu.
8.8 Delegation to Mortgagee. Owner may delegate and/or assign irrevocably to
any Mortgagee the non-exclusive authority to exercise any or all of Owner's obligations and/or rights
hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City
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unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a
written instrument effecting such delegation. Such delegation of authority may be effected by the
terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or
conformed copy of said Mortgage, together with written notice specifying the provisions therein
which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice
of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage
Parcel of any of its obligations hereunder with respect to such Mortgage Parcel.
8.9 No Obligation to Cure. Nothing herein contained shall reqUIre any
Mortgagee to cure any default of Owner referred to above.
8.10 Separate Agreement. The City shall, upon request, execute, acknowledge
and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense
of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees,
agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs
incurred by City in reviewing same.
8.11 Estoppel Certificate. Within thirty (30) days after written request therefore,
the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage
and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance
satisfactory to Owner and such Mortgagee ("Estoppel Certificate"). The City hereby agrees to
reasonably cooperate in including in any such Estoppel Certificate from time to time any provision
which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the
Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable
means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifYing the
non-applicability of the provisions of this Agreement to such Mortgagee as it relates to parcels other
than the Mortgage Parcel, and/or such other terms and provisions as are customarily required by
Mortgagees (taking into account the customary requirements of their participants, syndication
partners or ratings agencies) in connection with any such financing; provided, however, that no such
Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase
any obligations of City under this Agreement.
8.12 Conflicts. If there is any conflict between this Section 8 and any other
provision contained in this Agreement, this Section 8 shall control
9. MISCELLANEOUS PROVISIONS.
9.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one
signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes
the entire understanding and Agreement of the parties with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties
respecting this Agreement. All waivers of the 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. Within ten (10) days following the
effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records
20
DOCSOCIIII0339v] 1/24579-0001
11 B-41
of Orange County, California. Upon the completion of performance of this Agreement with respect
to the completion of construction of each Element or its revocation or termination, an appropriate
Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner
and City shall be recorded in the Official Records of Orange County, California.
9.3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section 65864
et seq.; (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 (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 III Section 1 of this
Agreement are part of this Agreement.
9.5 Captions. The captions of this Agreement are for convenience and reference
only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this Agreement.
9.6 Consent. Unless another standard is specifically given, where the consent or
approval of a party is required in or necessary under this Agreement, the consent or approval shall
not be unreasonably withheld.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each
other in good faith, and assist each other in the performance of the provisions of this Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
9.9 Conflicts of Law. In the event that state or federal laws or regulations
enacted after this Agreement has been entered into or the action or inaction of any other affected
governmental jurisdiction prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps, or permits approved by the City, the parties shall
provide the other party with written notice of such state or federal restriction, provide a copy of such
regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties
shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether
the parties reach an Agreement on the effect of such federal or state law or regulation upon the
Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such
hearing shall be given pursuant to Government Code Section 65854.5. The 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 Governmeflt Code Section 65869.5. At the hearing
Owner shall have the right to offer oral and written testimony.
9.10 Enforced Delay; Extension of Time of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be deemed to
be in Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to Litigation; inability to secure necessary labor materials or tools;
or inability to secure debt and/or equity financing on commercially reasonable terms or withdrawal
21
DOCSOC/1 ] 10339vl1124579-000l
11 B-42
of such financing not caused by any act or omission of Owner; war; insurrection; strikes; lockouts;
riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; building moratoria; unusually severe weather; acts or omissions of the other
party; acts or failures to act of any other public or governmental agency or entity (other than the acts
or failures to act of the City which shall not excuse performance by the City); or any other causes
beyond the control or without the fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause
shall be for the period reasonably attributable to the enforced delay and shall commence to run from
the time of the commencement of the cause. Times of performance under this Agreement may also
be extended in writing by the mutual agreement of the Parties.
9.11 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.
9.12 Subdivision of Project. The City agrees that, pursuant to the Applicable
Rules, Owner may modify the boundaries of existing lots of the Property within the Property by
means oflot line adjustments. This Section 9.12 shall survive termination of this Agreement.
9.13 Severability. If any provisions, conditions, or covenants of this Agreement,
or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable,
the remainder of this Agreement or the application of such provision, condition, or covenant to
persons or circumstances other than those as to whom or which it is held invalid or unenforceable
shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
9 .14 Waiver. No waiver of any provision of this Agreement shall be effective
unless in writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and such waiver refers expressly to this Section. No waiver of any
right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or
remedy in respect of any other occurrence or event.
9.15 No Personal Liability. No board member, councilmember, official or
employee of the City shall be personally liable to Owner nor shall any individual, principal, partner,
member or shareholder of Owner be personally liable to City in the event of any default or breach.
9.16 Conditions of Discretionary Approvals. Entitlements shall be governed by
the terms of the approvals of such Entitlements and, in no event, shall such Entitlements be affected
by the termination, rescission, revocation, Default or expiration of this Agreement.
9.17 Precedence. In the event of a conflict between the terms of this Agreement
and the terms of the Entitlements, the terms of this Agreement shall prevail.
22
DOCSOC/I] 10339v] 1/24579-000]
11 B-43
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner.
Dated this _ day of
,200_
THE CITY OF SANTA ANA
By
DAVID N. REAM
City Manager
Approved as to Form:
By
JOSEPH W. FLETCHER
City Attorney
THE GRAND PLAN 1, LLC
A California Limited Liability Company
By
Name
Its
THE GRAND PLAN 2, LLC
A California Limited Liability Company
By
Name
Its
23
DOCSOC/I I 10339vll/24579-0001
11 B-44
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that
executed the within instrument, known to me to be the person who executed the within instrument on
behalf of the municipal corporation therein named, and acknowledged to me that such municipal
corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
, a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the of ., the
that executed the within instrument, known to me to be the person who
executed the within instrument on behalf of the municipal corporation therein named, 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 seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On this day of , 200_, before me,
, a Notary Public in and for said state, personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the of ., the
that executed the within instrument, known to me to be the person who
DOCSOCIIII0339vl1/24579-0001
24
11 B-45
executed the within instrument on behalf of the municipal corporation therein named, 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 seal.
NOTARY PUBLIC
25
DOCSOCII lI0339vll/24579-0001
11 B-46
EXHIBIT A
PROPERTY DESCRIPTION
OWNER PARCEL
PARCELS 1,2,3 & 5 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 262,
PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY
THAT PORTION OF FRACTIONAL SECTION 31, IN TOWNSHIP 5 SOUTH, RANGE 9 WEST,
BEING A PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN, IN THE FINAL
DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN
CASE NO. 1192, ENTERED SEPTEMBER 12,1868 IN BOOK B, PAGE 410 OF JUDGEMENTS
OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET
WIDE, SAID CENTER LINE BEING THE WESTERLY LINE OF SAID SECTION 31, SAID
POINT BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM THE
INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT
AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7, RECORD
OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY;
THENCE ALONG COURSES 1, 2 AND 3 DESCRIBED IN A FINAL ORDER OF
CONDEMNATION, A COPY OF WHICH WAS RECORDED APRIL 9,1964 IN BOOK 6998,
PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE FOLLOWING COURSES
AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET; NORTH 46 DEG. 28' 17" EAST,
35.36 FEET; SOUTH 88 DEG. 31' 41" EAST, 127.00 FEET TO THE INTERSECTION WITH A
LINE THAT IS PARALLEL WITH AND 202.00 FEET EASTERLY, MEASURED AT RIGHT
ANGLES FROM SAID CENTER LINE OF MAIN STREET; THENCE SOUTH 1 DEG.28' 19"
WEST, ALONG SAID PARALLEL LINE 160.00 FEET; THENCE NORTH 88 DEG. 31' 41"
WEST, AT RIGHT ANGLES TO SAID CENTER LINE, 202.00 FEET TO SAID CENTER LINE;
THENCE NORTH 1 DEG.28' 19" EAST, ALONG SAID CENTER LINE, 135.00 FEET, MORE
OR LESS, TO THE POINT OF BEGINNING.
PARCEL 1 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT NO.
01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA,
RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF OFFICIAL
RECORDS.
FRIED PARCEL
PARCEL 2 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE
ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO.
20010566652, OF OFFICIAL RECORDS.
A-I
DOCSOCII I 10339vll/24579-0001
11 B-47
EXHIBIT B
PUBLIC ART PLAN
1. The Work(s) of Public Art shall be designed, constructed and installed by the Owner;
provided however, that the Signs shall be designed by the City at its sole expense.
2. A Final Design Plan consistent herewith, which proposes specific Work(s) of Public Art for
specific locations and/or applications, shall be submitted to the City's Planning Commission
within thirty sixty five (365) days from the issuance of the first building permit for the
Project. Owner shall install the Public Art not later than the issuance by the City of the first
certificate of occupancy for any Element.
3. 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.
4. The Public Art should be constructed using durable materials and finishes including but not
limited to stone or metal.
5. The Work(s) of Public Art should be comprised of a single or grouped permanent work(s) at
a prime location visable to the public and sited to complement features such as plaza or
architectural components so that the Public Art is an integral part of the development site.
6. No Public Art shall include advertising of any type, including but not limited to products,
services or businesses.
7. All Public Art shall be properly maintained at all times, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
8. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public
Work(s) of Art to one or more Owners' Association(s). The City shall be solely responsible
for maintaining the Signs.
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses not included in the Public Art Fee.
1. Expenses to locate the artistes) (e.g., airfare for artist interviews, etc.)
11. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
111. Landscaping around Public W ork( s) of Art 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.
B-1
DOCSOC/I I 10339vlI/24579-0001
11 B-48
v. Lighting elements not integral to the illumination of the Public Work(s) of Art.
VI. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
Vl1. Dedication ceremonies, including sculpture unveilings or grand openings.
11. All molds, dies, or other patterns used in constructing the Signs, together with all plans, shall
be property of the City.
B-2
DOCSOCIII 10339vl ]/24579-000]
EXHIBIT C
SCHEDULE FOR PUBLICLY-OWNED IMPROVEMENTS
1. City shall complete item no. I.a. on Exhibit A of Publicly-Owned Improvements not later
than June 2005.
2. City shall complete item no. 1.b. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
3. City shall complete item no. 1.c. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate the
completion of these Publicly-Owned Improvements (which, under current law. must be designed
and constructed by Southern California Edison and not the City) prior to the dates specified above.
20
11 B-50
EXHIBIT D
PUBLIC IMPROVEMENTSl
Improvement Location
Street Reconstruction Hutton Centre Drive between Sandpointe
A venue and MacArthur Blvd. Sandpointe
A venue between Main Street & Hutton Centre
Drive Hutton Centre Loop Road between Hutton
Centre Drive to the most easterly driveway on
the north side Eastbound MacArthur Blvd. lanes
between Main Street and Hutton Centre Drive
Construct eastbound right-turn lane MacArthur Blvd. east of Main Street
Provide second northbound right-turn lane Hutton Centre Drive between MacArthur Blvd.
and Hutton Centre Loop Road
New traffic signal Hutton Centre Drive and Hutton Centre Loop
Road
Raised median Hutton Centre Drive from MacArthur Blvd. to
280 feet south of Hutton Centre Loop Road
Raised median Hutton Centre Loop Road to most easterly
driveway on north side
Colored crosswalk Hutton Centre Loop Road east of Hutton Centre
Drive and sidewalk on north side to most
westerly driveway
Street widening to provide fourth eastbound lane MacArthur Blvd. between Hutton Centre Drive
and SR55 southbound on-ramp
Traffic signal modification to provide second MacArthur Blvd. at Hutton Centre Drive
northbound right-turn lane
Raised median Main Street between Sandpointe A venue and
MacArthur Blvd.
Owner shall be obligated to pay prevailing wages in connection with the construction of the Public
Improvements in accordance with the requirements set forth in Attachment No. I, attached hereto and incorporated
herein by reference.
D-l
DOCSOC/1110339vl1/24579-0001
11 B-51
ATTACHMENT NO. 1
TO EXHIBIT D
PREY AILING WAGE REQUIREMENT
A. Owner agrees to pay all workers employed in connection with the work to be performed
pursuant to the Agreement, not less than the prevailing rates of wages, as provided in the
statutes applicable to public works contracts of the City of Santa Ana ("Agency"), including
without limitation Sections 1770-1780 of the California Labor Code.
B. Owner shall maintain accurate records showing the name, occupation and actual per diem,
regular, overtime and holiday wages paid to each worker and fringe benefits (as appropriate)
paid to or on behalf of each worker employed in connection with the work to be performed
pursuant to the Agreement, the hours worked by such workers and amounts withheld
pursuant to law. Such records shall be open to inspection by City staff at reasonable hours.
C. Owner shall cooperate with City staff or its consultants in carrying out any investigation of
any claim made by a worker employed by Owner that less than prevailing wages were paid
for work performed pursuant to the Agreement. Owner shall promptly pay any amount
determined by City to be the difference between the applicable prevailing wage for the
number of hours worked by the claimant and the amount actually paid to the claimant.
D. Owner agrees that, if requested by City, funds due to employee under the Agreement may be
withheld pending the completion of any investigation pursuant to Section C hereof to ensure
that the amount of any restitution, which may be required, is available.
E. Owner agrees that, if City determines that Owner has violated any prOVISIOn of this
attachment/exhibit, funds otherwise due to Owner pursuant to the Agreement may be
withheld, or Owner may be required to post a bond or provide a Letter of Credit or other
security, in an amount sufficient to ensure that workers employed in connection with the
Agreement will receive the prevailing wages for the work to be performed, as determined to
be appropriate by City staff or consultants.
F. In the event that Owner subcontracts with an independent contractor for all or any part of the
work to be performed pursuant to the Agreement, and such subcontractor employs workers to
perform such work:
1. Owner shall assure that such subcontract includes and incorporates this
attachment/exhibit and requires such subcontractor to comply with and be bound by
the provisions hereof as the "Owner" with regard to the workers so employed.
2. In the event any such subcontractor is being investigated by City staff or consultants
pursuant to Section C hereof Owner shall, at the request of City, withhold funds from
such subcontractor prior to the completion of such investigation, to ensure that the
amount of any restitution which may be required is available.
Attachment No. 1-1
to Exhibit D
DOCSOC/l 1 10339vl 1/24579-0001
11 B-52
3. In the event that the City staff determines that any such subcontractor has violated the
provisions of this attachment/exhibit, Owner agrees to cooperate with City in
withholding funds from such subcontractor or requiring such subcontractor to post
security, in accordance with Section E hereinabove.
G. In the event of a dispute between Owner and City staff with respect to a City staff
determination, Owner shall have the opportunity to bring the dispute before City Board for
review. The City Council may take such action, as it deems appropriate, including:
1. Affirming the City staff determination.
2. Referring the matter back to City staff for further investigation.
3. Reversing or modifying the City staff determination.
4. Directing the City staff to appoint an independent hearing exammer for further
investigation.
5. Such other action as the Board may deem appropriate under the circumstances.
H. The parties to the Agreement stipulate and agree that the City is a third party beneficiary of
the provisions of this attachment/exhibit and may enforce the same as such through any
appropriate remedies in law or equity.
1. The provisions of this attachment/exhibit shall be interpreted and applied in accordance with
that certain "Policy on Payment of Prevailing Wages by Private ReOwners or Owner-
Participants", adopted by the Community Redevelopment Agency of the City of Santa Ana
on May 20, 1986, subject to any and all amendments thereto to the date of the Agreement, a
public record on file in the offices of the Agency.
J. Owner shall no later than the 15th day of each month during construction of the Project
submit to the City a self-audit report declaring under penalty of perjury and demonstrating
that during the prior month it has complied with the provisions of this attachment/exhibit and
California prevailing wage law. The self-audit report or statement not be binding nor
conclusive, nor shall the filing or failure to file such report or statement preclude the City
from conducting an audit.
K. Owner shall keep and preserve for a period of not less than four (4) years all records as may
be necessary to determine whether it has paid prevailing wage as required by this
attachment/exhibit, which records shall be made available to the City or its consultants and
agents at all reasonable times for purposes of conducting an audit. Owner shall permit an
examination of such books and records at a location within the City. In the event such books
and records cannot be made available within the City, the operator shall reimburse the City
for the cost of all transportation, lodging, meals, portal-to-portal travel time and other
incidental costs reasonably incurred by the City in conducting the audit. Appropriately
identified confidential or proprietary information furnished to the city as part of an audit shall
remain confidential, except in case of civil action or criminal prosecution.
Attachment No. 1-2
to Exhibit D
DOCSOC/l110339vll/24579-0001
11 B-53
L. Should any City conducted audit conclude that Owner has failed to pay prevailing wage in at
least five percent (5%) of the audited transactions (with a single pay day of a single wage
earner constituting one transaction), then Owner shall reimburse City for all actual costs of
the audit within thirty (30) days ofreceipt by Owner of the City's invoice.
Attachment No. 1-3
to Exhibit D
DOCSOCIl] ]0339v] 1/24579-000]
11 B-54
EXHIBIT E
A VIGA TION EASEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Clerk of the Council of the City of Santa Ana
20 Civic Center Plaza, M-30
P.O. Box 1988
Santa Ana, California 92702
EXEMPT FROM FILING FEES. CAL. GOV'T CODE & 6103
(Space Above Line for Recorder's Use)
GRANT OF A VIGATION EASEMENT
(John Wayne Airport)
ASSESSOR PARCEL #
RECITALS:
1. The Grand Plan 1, LLC, a California limited liability company and The Grand Plan 2,
LLC, a California limited liability company (collectively, the "Grantor"), is the owner of the fee
simple estate in and to that certain real property situated in the County of Orange, State of California,
commonly described as 1, 9 and 10 Hutton Centre and 101 E. Sandpointe Avenue, Santa Ana,
California and more particularly described in Attachment No.1, attached hereto and incorporated by
this reference ("Subject Property");
2. It is the desire of Grantor, for itself, its heirs, administrators, executors, successors,
assigns, tenants, guests, and other persons in or using the Subject Property with the implied or
express consent of Grantor, to grant to the City of Santa Ana, a political subdivision of the State of
California (the "City"), an air and avigation easement, also known as a perpetual air, flight or noise
easement, on, upon, over, across, above, or in the vicinity of the Subject Property, and to all of the
Airspace (as hereinafter defined) above the Subject Property, whereby Grantor relinquishes certain
rights relative to the Subject Property, as described in this Grant of Avigation Easement (this
"Avigation Easement");
3. The purpose of this Avigation Easement, and its acceptance by the City, includes
granting the City an A vigation Easement permitting the unencumbered and unrestricted flight of
aircraft to or from John Wayne Airport ("JW A"), owned and operated by the County of Orange,
without liability to the City, to the aircraft operator, or to any other person lawfully operating aircraft
to or from JW A in the navigable airspace of the United States (as defined at 49 U.S.C.S.
s40102(a)(30)), and as that section of the United States Code (and the referenced regulations) existed
on the effective date of this A vigation Easement, and in accordance with relevant regulations of the
United States of America and the State of California, pursuant to the authority granted to the County
Grant of Avigation Easement
DOCSOC/1110339vll/24579-0001
E-l
11 B-55
by the people and the State of California. As agreed upon by the parties, this A vigation Easement is
calculated by reference to the Airport Environs Land Use Plan ("AELUP") for JWA Years
1990/2005 "Project Case" noise contours (as depicted in Appendix D of the AELUP for JW A dated
December 19,2002) plus 1.5 decibels ("dB") Community Noise Equivalent Level ("CNEL");
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged:
WARRANTIES AND COVENANTS:
Grantor warrants and covenants to the City that as of the date hereof:
Grantor holds the entire fee simple interest in the Subject Property;
Grantor shall not convey its interest in the Subject Property, or execute, deliver, or
permit hereafter recordation of any interest in the Subject Property, or any lien or encumbrance
against the Subject Property (or any interest therein), until the earlier of the following events: (i) this
A vi gati on Easement has been properly executed by Grantor, accepted by the City, and recorded by
the Orange County Recorder; or (ii) thirty (30) days have elapsed after Grantor have delivered this
Avigation Easement to the City, properly and fully executed and notarized.
If the person executing this A vigation Easement is other than the Grantor, the person
executing this A vigation Easement has represented to the City, in documentation separate from this
grant, that he/she has been duly and lawfully authorized by Grantor to execute this A vigation
Easement on behalf of Grantor.
GRANT OF A VIGATION EASEMENT
Grantor, individually and for its heirs, administrators, executors, tenants, guests, agents,
successors, assigns, and other persons in or using the property with the implied or express consent of
Grantor, hereby grants, conveys and assigns to the City and its successors, and assigns, a perpetual
non-exclusive and assignable A vigation Easement and the right to enter or penetrate into or transmit
through the Airspace above, on or in the vicinity of the Subject Property for the unobstructed use,
passage or operation of all types of aircraft and the right to create or generate all things and
consequences to the Subject Property that may be, or may be alleged to be, incident to or resulting
from the use and enjoyment of said Airspace and any and all related aircraft and airport operations,
including, but not limited to, those impacts and effects described in Section 5.
This A vigation Easement shall be for air navigation, airport operations, aircraft sound and
noise, aircraft avigation and flight in, to, over and through the Airspace above the Subject Property,
as well as the imposition in, on, over, upon or in the vicinity of the Subject Property of noise, sound,
vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such
aircraft operations and any and all resulting annoyance, inconvenience, or other interference with the
use and enjoyment of the Subject Property and any consequent reduction in market value, all due to
the operation of aircraft to and/or from JW A, including landing at, taking off from, taxiing,
maintenance, or other aircraft or related facility operations at or on JW A.
This A vigation Easement is for the use of such airspace by any aircraft, present or future, in
whatever form or type, during operations at, on, to, or from JW A, including any future change to or
increase in JW A's boundaries and/or in the volume or pattern of aircraft traffic or aircraft noise, by
Grant of Avigation Easement
DOCSOC/I I 10339v11/24579-0001
E-2
11 B-56
all existing or future types of aircraft, up to and including the AELUP for JW A Years 1990/2005
"Project Case" noise contours (as depicted in the AELUP for JW A, Appendix D) plus 1.5 dB CNEL,
including the imposition on the surface of the Subject Property and on any and all structures on the
Subject Property of such noise, vibration, fumes, fuel particles, dust, discomfort or other
environmental effects incident to such aircraft operations and any and all resulting annoyance,
nuisance, inconvenience, taking of or damage to the Subject Property, or any portion of the Subject
Property, or other interference with the use and enjoyment of the Subject Property and any
consequent reduction in market value. This A vigation Easement shall continue notwithstanding any
future changes or increases in the type, volume, frequency, duration, or location of operations to,
from or at JW A up to and including the AELUP for JW A Years 1990/2005 "Project Case" noise
contours (as depicted in the AELUP for JW A, Appendix D) plus 1.5 dB CNEL.
This A vigation Easement also includes all things that may be alleged to be incident to or
resulting from the use and enjoyment of this Easement, including, but not limited to, the Grantee's
continuing right to prevent, prohibit, clear and keep clear from the Airspace above the Property any
buildings, portions of buildings, structures or improvements of any kind, and of trees, vegetation, or
other objects that may cause interference with aircraft navigation and/or operations at JW A,
including the right to remove or demolish those portions of such buildings, structures, improvements,
trees, vegetation, or other objects which extend into the Airspace and, in the reasonable judgment of
the Grantee, may cause interference with aircraft navigation and/or operations at JW A, and, at the
reasonable discretion of the Grantee, the right to mark and light, or cause or require to be marked and
lighted, as obstructions or hazards to air navigation or aircraft operations, any and all buildings,
structures, or other improvements, and trees, vegetation, or other objects, which extend into the
Airspace above the Property. This A vigation Easement also includes the Grantee's right of ingress to,
passage within, and egress from the Property to inspect the Property, improvements or vegetation of
any type on the Property and, to remove any building, structure, other improvement, tree or
vegetation (or portion thereof) which extends into the Airspace in violation of this Section, or to
install such lighting, or marking of any such improvement or vegetation as permitted by this Section;
and for all other purposes described in this Section at reasonable times and after reasonable notice.
Grantee shall use reasonable efforts to minimize any disturbance of the occupants of the Subject
Property in exercising its rights hereunder. If any building, structure, other improvement, tree or
vegetation (or portion thereof) extends into the Airspace in violation of this A vigation Easement,
Grantee shall so notify Grantor, or its successors, of such violation and the requested corrective
measure, which may include, but not be limited to, the installation of such lighting, or marking of any
such improvement or vegetation, as required by law. If the Grantor, or its successors, do not correct
such violation within thirty (30) days, or such shorter time period as may be required by Grantee due
to an emergency or some other circumstance requiring more immediate action, the Grantee shall have
the right of ingress to, passage within, and egress from the Property to remove any building,
structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace
in violation of this A vigation Easement, or to install such lighting, or marking of any such
improvement or vegetation, as required by law or as reasonably required by Grantee.
The cost to remove any building, structure, other improvement, tree or vegetation (or portion
thereof) which extends into the Airspace in violation of this A vigation Easement, or to install such
lighting, or marking of any such improvement or vegetation as permitted by Section 7; and for all
other purposes described Section 7 shall be borne exclusively by Grantor.
As used in this Avigation Easement, the term "aircraft" shall mean any and all types of
aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be
Grant of Avigation Easement
DOCSOClll10339v11/24579-0001
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limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft,
military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence
or hereafter developed for the purpose of transporting persons or property through the air, by
whomever owned or operated.
As used in this Avigation Easement, the term "Airspace" shall mean the entire area above
those certain imaginary surfaces over the ground surface of the Property that are within the Federal
Aviation Regulations ('''FAR'') Part 77 Surfaces, as specified in Advisory Circulars 7017460-2K
(height criteria) and 7017460-IH (standards for marking and lighting) and any and all successor
revisions or regulations by the Federal Aviation Administration, any successor agency, or any other
agency of the federal, state or local government of the United States of America exercising
comparable authority except that additional area below those certain imaginary surfaces over the
ground surface of the Property particularly described in Exhibit "A" attached hereto.
It is expressly intended by Grantor and the City that this A vigation Easement shall not
supersede or impair any existing prescriptive, avigation, or other easements, rights, or interests of the
City, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any
remedies related thereto are expressly reserved by the City.
In furtherance of this A vigation Easement, and rights herein granted, Grantor, and the heirs,
administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times
hereafter, that it/they will not take any action or knowingly cause any electronic, light or other
transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust or smoke
on the Subject Property which would conflict or interfere with or infringe on the City's rights herein
granted, or to otherwise impair the usability or function of JW A.
The rights, easements, benefits, restrictions, covenants and agreements granted herein,
including this A vigation Easement, shall continue notwithstanding any increase or other change in
the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air
traffic to, from or at JW A. This A vigation Easement may not be modified, amended, terminated, or
abandoned except by execution and delivery of an instrument executed and acknowledged by the
City, or its agents, successors, and assigns, and Grantor agree(s) that, in the absence of such an
instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be
construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall any conduct
by the City, or its agents, successors and assigns, or increase, diminution, or change in use of this
A vigation Easement, or the operation or use of JW A by Grantee constitute an overburdening of this
Avigation Easement or a termination or abandonment of this Avigation Easement.
Construction of the "MacArthur Place" project (the "Project") at the Subject Property will
require the use of construction cranes and related construction equipment. For purposes of this
A vigation Easement, the City will not consider the temporary utilization of the construction cranes
and related construction equipment that have a height that exceeds JW AFAR Part 77 imaginary
surfaces as an encroachment on or in violation of this A vigation Easement, provided that all of the
following apply:
The Federal A viation Administration ("FAA") has conducted any required
aeronautical study of the proposed object(s) pursuant to FAA Order 7400.2E, and any and all
successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation"
for the proposed objects; and
Grant of Avigation Easement
DOCSOC/] ] ]0339v] 1/24579-000]
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All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
Extraordinary maintenance and repair activities (e.g., boiler replacement, fa<;:ade replacement,
elevator equipment replacement, cooling tower replacement, seismic damage repair) may be required
after construction of the Project. For purposes of this Avigation Easement, the City will not consider
these types of extraordinary maintenance and repair activities as encroachment(s) on, or violations of,
this Avigation Easement, provided that all of the following apply:
The FAA has conducted any required aeronautical study of the proposed object(s)
required to be utilized during the extraordinary maintenance and repair activities pursuant to FAA
Order 7400.2E, and any and all successor revisions or regulations, and has issued a "Determination
of No Hazard to Air Navigation" for the proposed objects; and
All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
In the event of any disaster or other casualty directed against or affecting the building(s)
located on the Subject Property which damages or destroys the building(s), Grantor shall be entitled
to demolish, reconstruct, repair or replace the building(s) on the terms set forth above in Section 14
ofthis Avigation Easement, subject to any required FAA determination(s) and recommendation(s).
The parties to this A vigation Easement acknowledge and agree that the easement, and all the
rights, easements, benefits, restrictions, covenants and agreements set forth herein shall run with the
land of the Grantor and the City, and any grantee, heir, agent, successor or assign of the Grantor who
acquires any estate or interest in or right to use the Subject Property shall be bound by this Avigation
Easement for the benefit of JW A and the City, and its agents, successors and assigns, including,
without limitation, the tenants and licensees of the City, and all users of JW A. This A vigation
Easement and all rights pertaining hereto is hereby vested in the Grantee, its successors and assigns,
forever and without limit in time, and shall be binding upon and inure to the benefit of the successors
and assigns of Grantor.
Grantor, and the grantees, heirs, agents, successors, and assigns of Grantor, hereby fully
waive and forever release, and covenant not to assert or bring any right or cause of action, which it or
they might now have, or which it or they may have in the future, against the City, its agents,
successors, and assigns, or against the tenants, licensees, permittees, or users of JW A, caused by or
relating to the use of this A vigation Easement or the exercise of rights under this A vigation
Easement. This grant of this easement shall not operate to deprive the Grantor, its heirs, agents,
successors, and assigns, of any rights which may from time to time arise against any air carrier or
private operator for negligent or unlawful operation of aircraft.
In the event that anyone or more covenant, condition, right or other provision contained in
this A vigation Easement is held to be invalid, void, or illegal by any court of competent jurisdiction,
the same shall be deemed severable from the remainder of this A vigation Easement and shall in no
way affect, impair, or invalidate any other covenant, condition, right or other provision contained in
this A vigation Easement.
This A vigation Easement constitutes an enforceable restriction pursuant to the provisions of
California law, including, but not limited to, Section 21652 of the California Public Utilities Code,
Grant of Avigation Easement
DOCSOC/1 II0339vl1/24579-0001
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and shall bind Grantor and the grantees, heirs, administrators, executors, lessees, tenants, permittees,
agents, successors, and assigns of Grantor(a), and each and all of them, and shall be appurtenant to,
and for the benefit of, the real property commonly known as JW A, which is more particularly
described in Attachment No.2 attached hereto.
Dated:
_,2005
GRANTOR:
THE GRAND PLAN 1, LLC, a California limited
liability company
By:
Name:
Title:
THE GRAND PLAN 2, LLC, a California limited
liability company
By:
Name:
Title:
Grant of Avigation Easement
DOCSOClll10339v11/24579-0001
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Grant of Avigation Easement
DOCSOC1l110339v11l24579-0001
ATTACHMENT NO.1
TO EXHIBIT E
SUBJECT PROPERTY DESCRIPTION
Attachment No. 1-1
to Exhibit E
11 B-61
Grant of Avigation Easement
DOCSOC/lII0339v11/24579-0001
ATTACHMENT NO.2
TO EXHIBIT E
JW A PROPERTY DESCRIPTION
Attachment No. 2-1
to Exhibit E
11 B-62
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in the real property conveyed by the Easement Deed dated
from THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC to
the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California, is hereby accepted by the undersigned officer or
agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS-2352 and
Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1998, in
compliance with California Government Code Section 27281 and the grantee consents to recordation
thereofby its duly authorized officer.
Dated:
CITY OF SANTA ANA
By:
Name:
Title: City Manager
Grant of A vigation Easement
DOCSOC/l 1 I0339v11/24579-0001
Certificate of Acceptance
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ACKNOWLEDGMENT
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
On
, 20 _, before me
personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in hislher/their authorized capacity(ies), and that by
hislher/their signature( s) on the instrument the person( s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Grant of Avigation Easement
DOCSOC/I I I0339vll/24579-0001
Acknowledgment
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EXHIBIT F
LAKE IMPROVEMENTS
1. Exercise path with markers
2. Upgraded/enhanced landscaping around the Lake with large water oriented shade trees
3. Dancing water jets in the Lake
4. An amphitheatre on the green (back side of the Lake Towers facing the lake)
5. A terraced pedestrian plaza at the base of the Lake Towers
F-l
DOCSOCIl 1 10339vl 1/24579-0001
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