HomeMy WebLinkAboutMAIN STREET CONCOURSE 1 -2005RECORDING 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
r
Recorded in Official Records, Orange County
Tom Daly, Clerk- Recorder
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FREE RECORDING
GOVERNMENT CODE b 6103
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
MAIN STREET CONCOURSE, LLC
Dated: February 14, 2005
C
A- 2005 -052
AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
MAIN STREET CONCOURSE, LLC
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT
( "Agreement ") is entered into between THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the Constitution and laws of the State of California
( "City ") and MAIN STREET CONCOURSE, LLC, a California Limited Liability Company
( "Owner" or "Property Owner ").
RECITALS. This Agreement is entered into with reference to the following
facts:
1.1 Original Agreement. The City and Owner's predecessor in interest,
Orient Corporation of America, Inc., a California corporation ( "Orient "), are parties to that
certain Development Agreement entered into on or about May 3, 1993 and recorded as
Document Number 93- 0385606 with the Recorder's Office of the County of Orange (the
"Original Agreement ").
(1) The purpose of the Original Agreement was to facilitate the
development of the mixed -use project contemplated by the City's Specific Design Zoning
Designation SD -59 (SD -59), Vesting Tentative Map No. 14408 and EIR No. 93 -_
(2) Orient's interest was subsequently acquired by Owner, who has
applied to the City for approvals of a modified project, including an amendment to SD -59 and a
new vesting tentative map.
(3) The City and Owner agree that the changes Owner seeks in the
Original Agreement substantiate the need to amend and restate the Original Agreement.
1.2 Code Authorization. The City is authorized pursuant to Government
Code Sections 65864 through 65869.5 to enter into Development Agreements with persons
having legal or equitable interests in real property for the purpose of establishing certainty for
both the City and Owner in the development process. The City enters into the Agreement
pursuant to the provisions of the Government Code and applicable City policies. The parties
acknowledge:
(1) This Agreement is intended to assure adequate public facilities at
the time of development.
(2) This Agreement is intended to assure development in accordance
with the City's General Plan, applicable Specific Plans and Specific Development District
No. 59, as modified concurrently herewith by Ordinance No. NS -2676.
(3) This Agreement will permit achievement of goals and objectives as
reflected in the City's General Plan, all applicable Specific Plans and Specific Development
District No. 59.
(4) Owner is required by existing City regulations to provide
mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through
the regulatory process:, as further provided in this Agreement.
(5) This Agreement will allow the City to realize extraordinary and
significant public infrastructure facilities and other supplemental benefits in addition to those
available through the existing regulatory process.
(6) Many of the extraordinary and significant benefits identified as
consideration to the City for entering into this Agreement are of regional significance, relate to
existing deficiencies in public facilities, require Owner to contribute a greater percentage of
benefits than would otherwise be required, and represent benefits which would not otherwise be
required as part of the development process.
1.2 Owner. Owner represents and warrants that it has a legal or equitable
interest in the real property located in the City of Santa Ana, California, legally described on
Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B
attached hereto and incorporated herein (hereinafter the "Property "). The Property is
approximately 17.72 acres in size (and approximately 18.76 acres before dedications) and is
vacant:
1.3 Approval of Owner. Owner further hereby represents that it has
approved this Agreement and is authorized to enter into this Agreement.
1.4 Planning Commission - Council Hearings. On October 25, 2004, the
Planning Commission of the City ( "Planning Commission "), after giving notice pursuant to
Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's
application for this Agreement. This public hearing was duly held, all public testimony was
attended to, and consideration of this matter continued by the Planning Commission to its regular
meeting of December 13, 2004, on which date the Planning Commission recommended to the
City Council of the City that it execute this Agreement. On February 7, 2005, the City Council
of the City of Santa Ana ( "Council "), after providing notice as required by law, held a public
hearing to consider the Owner's application for this Agreement. Following this public hearing,
the matter was continued the Council's next regular meeting, on February 22, 2005, in order to
make certain changes to this Agreement, SD -59 and Vesting Tentative Map No. 14408, to all of
which the Owner voluntarily agreed.
1.5 Council Findings. The Council finds that this Agreement is consistent
with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances,
plans, policies and regulations of the City.
1.6 City Ordinance. On March 7, 2005, the Council adopted Ordinance No.
NS -2677 approving this Agreement. The ordinance becomes effective thirty (30) days
thereafter.
2. DEFINITIONS. In the Agreement, initially capitalized terms used but not
defined shall have the following meanings unless the context otherwise requires:
2.0.5 "Executive Director" means the Executive Director of the City's
Planning and Building Agency or designee.
2.1 "Final Design" means the final design documents for a work of public art,
which is set forth in greater detail in paragraph 5.8 of this Agreement.
22 "Map" means Tentative Tract Map No.2004 -06 , approved concurrently
with this Agreement.
2.2 "Property Owner" or "Owner" means Main Street Concourse, LLC,
being the person, persons, or entity having a legal or equitable interest in the Property, and
includes Main Street Concourse, LLC's successors in interest.
2.3 "Property" is the real property described in Exhibit A and referred to in
Exhibit B.
2.4 "Project" is the development of the Property as generally set forth in
SD -59, Tentative Tract Map No. 2004 -06, Conditional Use Permit No. 2004 -28, Environmental
Impact Report No. 2004 -01, and Site Plan Review No. 2004 -05.
2.5 Public Art Locational Plan means the conceptual Plan attached hereto as
Exhibit C. The parties recognize that the Locational Plan sets forth the general description of the
location of the Public Art required by this Agreement, and is subject to refinement at the time of
installation, by Agreement of the Owner and the Executive Director.
3. EXHIBITS. The following documents referred to in the Agreement are attached
to this Agreement and are identified as follows:
Exhibit Referred to
De- ignation Description_ in Section
A Property Legal Description 1.2
B Property Graphical Description (Site Plan) 1.2
C Public Art Locational Plan 2.5
D Phasing Plan 5.1.1
E Remaining Offsite Mitigation Measures 5.1.2
F Residential High Rise Tower Study Area 5.4
4. GENERAL PROVISIONS.
4.1 Amendment and Restatement. This Agreement amends, restates and
supersedes the Original Agreement in its entirety.
4.2 Property Subject to the Agreement. Until released pursuant to the
provisions of Section 8.6 below, no property shall be released from this Agreement until
Property Owner has fully performed its obligations arising out of the Agreement.
4.3 Effective Date; Duration of Agreement. The "Effective Date" of this
Development Agreement shall be the date that the City Council ordinance adopting this
Development Agreement becomes effective, which date is thirty (30) days after the City Council
meeting at which such ordinance is adopted, unless this Agreement or Ordinance No. NS -2676
(the amendment to SD -59) is the subject of a referendum which has received a prima facie
sufficient number of signatures or unless its effective date is stayed by order of a court with
jurisdiction. The remaining term of this Agreement shall extend for the same period as specified
in the Original Agreement, unless this Agreement is earlier terminated or its term modified by
further agreement fully executed by both parties; provided, however, that nothing herein is
intended nor shall it be interpreted to extend the period of validity of any approval issued in
conjunction with the City's Development Project Plan process or building permit, beyond local
requirement. Except as expressly stated herein, paragraph 3 of the Original Agreement shall
remain in full force and effect.
(b) Pursuant to Section 66452.6(a) of the California Subdivision Map Act, the
term of the Map, including any lot line adjustment or merger of lots (or any other tentative map
filed subsequent to the Effective Date of this Agreement), shall not expire during the term of this
Development Agreement remains in effect.
(c) Notwithstanding subsections (a) or (b) hereof, if, at the end of the original
or any modified term, the Property is in the process of being developed, the term of this
Development Agreement shall be further extended until such construction in process is
completed, not to exceed an additional three years after expiration of the original or modified
term.
(d) The expiration of this Development Agreement shall not terminate any
land use approvals approved concurrently with or subsequent to the approval of this
Development Agreement, but shall merely end the period as to which such approvals are vested
against subsequent changes in applicable law.
(e) Upon the expiration or termination of this Development Agreement for
any reason, the City and Owner and its successors and assigns agree to cooperate and execute
any document reasonably requested by the other party to remove this Development Agreement
from the public records as to the property or any applicable portion thereof.
4.4 Assignment. Owner shall have the right to transfer or assign the Property,
in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or
corporation at any time during the term of this Agreement; provided, however, that except as
provided in section 4.4.1 of this Agreement the rights of Owner under this Agreement may not
be transferred or assigned unless the written consent of the Council is first obtained and any
transfer or assignment of the rights under this Agreement shall include in writing the assumption
of the duties, obligations, and liabilities arising from this Agreement if the City grants written
consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to
assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act,
and any such assignment or transfer shall be wholly void and of no force and effect unless such
written consent thereto be obtained from the Council. Such transfer or assignment shall not
relieve Owner of any duty, obligation or liability to City without the consent of the City. During
the term of this Agreement, any approved assignee or transferee of the rights under this
Agreement shall observe and perform all of the duties and obligations of Owner contained in this
Agreement as such duties and obligations pertain to the portion of the Property transferred or
assigned. Any and all approved successors and assignees of Owner shall have all of the same
rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the
Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned,
or transferred to persons for ownership, investment, use or development by them in accordance
with the provisions of this Agreement.
4.4.1 Assignment to Controlled Assignee. Notwithstanding the above,
consent shall not be required in connection with a Permitted Transfer (as herein defined) of
Property of Owner provided City Council is notified of such Permitted Transfer and furnished
with copies of the fully executed instruments effectuating same within fifteen (15) business days
after the effective date thereof. For purposes hereof, the capitalized terms used herein shall be
defined as follows:
(i) "Permitted Transfer" shall mean Transfer of the Property or direct
or indirect interests in Owner if, following the transfer (a) the Property remains under the Legal
Control (defined below) of Robert H. Bisno, or, upon the death of Robert H. Bisno, his heirs or
devisees, or (b) foreclosure pursuant to the provisions of section 8.5 of this Agreement.
(ii) "Legal Control' shall mean the power or authority, directly or
indirectly through one or more intermediaries, through the ownership of voting securities, by
contract or otherwise, to direct the management, activities or policies of such person or entity.
(iii) "Transfer" shall mean any change in the direct or indirect
members, partners, shareholders or principals in the ownership of an entity or other ownership
components of such entity.
4.5 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the
same manner as its adoption by an ordinance as set forth in Government Code Section 65868;
provided, however, that as specified in section 5.5.1 of this Agreement the Executive Director
may approve one or more minor changes in the Project only to the extent that such changes are
not required by State law or the City Municipal Code to be decided by the Zoning Administrator,
Planning Commission (or other City Commission) or City Council. The term "Agreement' or
"Development Agreement" as used herein shall include any amendment properly approved and
executed.
4.6 Enforcement. Notwithstanding Government Code Section 65865.4, this
Agreement is enforceable by any party to the Agreement in any manner provided by law. The
remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable
for, any action in damages or any costs or attorney's fees resulting from any dispute,
controversy, action or inaction, or any legal proceeding arising out of this Agreement except as
may be provided in Section 6.3(5) of this Agreement.
4.7 Hold Harmless. Property Owner agrees to and shall hold the City, its
officers, agents, employees, consultants, special counsel, and representatives harmless from
liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of
claims for personal injury, including health, and claims for property damage, which may arise
from the direct or indirect operations of the Property Owner or its contractors, subcontractors,
agents, employees, or other persons acting on its behalf which relates to the Project; and (2)
from any claim that damages, just compensation, restitution, judicial or equitable relief is due by
reason of the terms of or effects arising from this Agreement, other than a breach by the City of
its obligations hereunder. Property Owner agrees to pay all costs for the defense of the City and
its officers, agents, employees, consultants, special counsel, and representatives regarding any
action for damages, just compensation, restitution, judicial or equitable relief caused or alleged
to have been caused by reason of Property Owner's actions in connection with the Project, any
third party claims arising out of this Agreement, or any approval or certification by the City
relating to the Project. This hold harmless Agreement applies to all claims for damages, just
compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered,
by reason of the events referred to in this paragraph or due by reason of the terms of, or effects,
arising from this Agreement or any approval or certification by the City relating to the Project,
regardless of whether or not the City prepared, supplied or approved this Agreement, plans or
specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold
harmless, and pay all costs for the defense of the City, including fees and costs for special
counsel to be selected by the City, regarding any action by a third party challenging the validity
of this Agreement or any approval or certification by the City relating to the Project, or asserting
that damages, just compensation, restitution, judicial or equitable relief is due to personal or
property rights by reason of the terms of, or effects arising from this Agreement, The Property
Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City,
excluding fees and costs for special counsel to be selected by the City or other outside counsel or
consultants, if any, regarding any action by a third party challenging the validity of this
Agreement or any approval or certification by the City relating to the Project, or asserting that
damages, just compensation, restitution, judicial or equitable relief is due to personal or property
rights by reason of the terms of, or effects arising from this Agreement. City may make all
reasonable decisions with respect to its representation in any legal proceeding.
4.8 Binding Effect of Agreement. To the extent not otherwise provided in
Section 4.4 of this Agreement, the burdens of the Agreement bind, and the benefits of the
Agreement inure, to the parties' successors in interest.
4.9 Relationship of the Parties. The contractual relationship between the
City and Owner arising out of the Agreement is one of independent contractor and not agency.
This Agreement does not create any third party beneficiary rights.
4.10 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if
delivered in person or mailed by first class or certified mail, postage prepaid, or sent by
telefacsimile in the manner provided in this Section, to the following persons:
If to the City, to:
and,
City Manager
City of Santa Ana
20 Civic Center Plaza M -31
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6954
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:
and,
Main Street Concourse, LLC
c/o Transaction Companies
1800 Century Park East, Suite 450
Los Angeles, CA 90067 -1518
Attn: Robert H. Bisno
Telefacsimile (310) 277 -3787
F. Thomas Muller, Esq.
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071
telefacsimile (213) 430 -6407
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or
other communication shall be effective or deemed to have been given twenty -four (24) hours
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.
DEVELOPMENT OF THE PROPERTY.
5.1 Existing Rules, Regulations and Policies. The rules, regulations and
official policies governing the permitted use(s) of the Property, with respect to and only with
respect to the permitted use(s), density, height, size of structures and intensity of use of the
Property, and provisions for reservation or dedication of land for public purposes and any other
exactions or mitigation measures applicable to the Project shall be those rules, regulations, and
policies applicable to the Property as of the Effective Date, including those set forth in District
Plan No. 59, as amended concurrently herewith.
5. 1.1 Phasing of the Project. The City agrees and acknowledges that the
Project may be phased by Owner pursuant to the Phasing Plan attached to this Agreement as
Exhibit D.
5.1.2. Reserved.
5.1.3 Remaining Offsite Mitigation Measures. The parties acknowledge and
agree that Owner's predecessor in interest under the Original Agreement, has constructed or
caused to be constructed many of the offsite mitigation measures required by the Original
Agreement, which mitigation measures were scaled to mitigate impacts from a substantially
larger project than Owner's. Therefore, the sole remaining offsite mitigation measures which
must be funded or constructed by Owner are as set forth in Exhibit E to this Agreement.
5.2 Exclusion from Existing Rules, Regulations and Policies.
Pursuant to Government Code Section 65866, and Pardee Construction Co. V.
City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, the City retains the
right to enact police power regulations on matters not covered by this Agreement, including
without limitation ( "Reserved Powers "):
a. Municipal laws and regulations which do not interfere with Owner's
vested rights to develop and use the Property in accordance with this Agreement. Owner and its
successors and assigns and all persons and entities in occupation of any portion of the Property
shall comply with such non - conflicting laws and regulations as may from time to time be enacted
or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting
laws and regulations include the following:
(1) Existing taxes, assessments, fees and charges, except as otherwise
specifically provided in this Development Agreement;
(2) Building, electrical, mechanical, fire and similar codes based upon
uniform codes incorporated by reference into the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, which regulate the
manner in which business activities may be conducted or which prohibit any particular
type of business activity on a city -wide basis; and
(4) Procedural rules of general City -wide application.
b. No vested rights as to any requirements in this section 5.2 either as to
existing or future regulations, ordinances, policies, and plans are hereby conferred.
5.3 Design and Construction Standards and Specifications. The design
and construction standards and specifications for all Project construction, shall be subject to
applicable design standards and guidelines, including without limitation SD -59 and Chapter 41
of the Santa Ana Municipal Code, in effect at the time that any development approval shall be
sought for the Project or any unit or structure contained within the Project.
5.4 Future, Proposed Residential, High Rise Towers.
a. Without in any way affecting the rights vested pursuant to this Agreement,
Owner shall meet and confer in good faith with the City on whether to construct a residential,
for -sale, high rise tower on the Property in the general location as specified in Exhibit F to this
Agreement, in lieu of the single family residential development at the density of 1 unit per acre
approved for such area concurrently herewith. The parties hereto acknowledge and agree that
the City's discretionary review of any such proposal together with any approvals sought to
develop any such tower on the Property shall be deemed to fall within the provisions of section
5.5 of this Agreement, and not be covered by section 5.1 of this Agreement% If, after good faith
investigation and consideration the Owner has not concluded by August 1, 2005, that a high rise
development is feasible, Owner may proceed with development as approved concurrently
herewith. No fees, exactions, mitigation measures or dedications shall be required with respect
to such area until development commences thereon.
b. In consideration of the above, and the extraordinary and significant
benefits that Owner acknowledges and agrees that it has received in executing this Agreement,
Owner voluntarily waives any claim, and holds harmless the City, its officers, agents and
employees, from any claim that damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement or the Project, other
than a breach by the City of its obligations hereunder. Said waiver and hold harmless shall be in
addition to that set forth in other provisions of this Agreement, including but not limited to
section 4.7.
5.5 Future Discretionary Approvals. This Agreement shall not prevent the
City, when considering requests for discretionary approvals not covered by this Agreement
subsequent to the effective date of this Agreement from applying new rules, regulations, and
policies which are applicable to the Property, including but not limited to, material changes in
the general plans, specific plans, zoning, subdivision or building regulations, nor shall this
Agreement prevent the City from denying or conditionally approving any subsequent
applications for discretionary land use entitlements based on such existing or new rules,
regulations, and/or policies; provided however, that such new rules, regulations, and official
policies are of general application to all development within the City and are not imposed solely
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with respect to the subject property. In addition, this Agreement shall not prevent the City from
exercising its police power to protect the health, safety, and welfare of the public. This police
power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or
obligations created or existing between the parties.
5.5.1 Minor Changes. Upon application of Owner, the Executive Director may
approve minor modifications to the discretionary approvals vested pursuant to this Agreement,
provided that such changes are consistent in scope and intention with such approvals. The
Executive Director has the sole and absolute discretion to determine what constitutes a "minor
modification."
5.6 Processing Fees. All fees and charges intended to cover the City's costs
associated with processing development of the Property, including but not limited to fees and
charges for applications, processing, inspections, plan review, plan processing, and /or
environmental review, which are existing or may be revised or adopted during the term of this
Agreement, shall apply to the development of the Property.
5.7 Amendments or Additions to Citywide Fee Programs. This Agreement
shall not preclude the inclusion of and changes to fee programs, taxes whether special or general,
or assessments (hereafter collectively referred to as "fees ") adopted by the City after the
effective date of this Agreement, which shall be applicable to the Project or the Property
provided that they (1) are standard fees applicable to all development in the City (although actual
fee rates may vary within the City where bona fide Citywide fee zones have been established),
(2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a)
mitigate, offset or compensate for Project impacts which were analyzed in the negative
declaration prepared for the Project, or (b) duplicate any exactions, project design features,
conditions of approval, Agreements, or mitigation measures contained in the Development Plan
or this Agreement.
5.8 Development, Construction and Completion of Work of Public Art.
In consideration for the extraordinary and significant benefits to the City set forth in this Section,
the Owner has been legally vested under paragraph 5.1 with regard to the permitted uses of land,
density, and intensity of use, Owner shall include within the Project at one or more prime
locations visible to the public from currently existing public right -of -way, one or more
permanent works of public art (the "Public Art"). The Owner shall design and /or construct the
facilities specified below prior to the corresponding triggering event specified in section 5.8.1
below. The Public Art shall conform in all respects to Exhibit C of this Agreement, the "Public
Art Locational Plan."
5.8.1 Work of Public Art.
1. Submit Final Design of Public Art.
Final design must conform to Public Art
Locational Plan.
Prior to issuance of first Building Permit or four
(4) years from the effective date of this
Agreement, whichever comes first.
2. Install Public Art. Prior to the City's issuance of Certificate of Use
ii
and Occupancy for any building, or five (5) years
from the effective date of this Agreement,
whichever comes first.
With respect to the Final Design, Owner shall complete all construction and development, shall
submit all plans, drawings, and other documents, and perform all of its obligations under this
Agreement within the times specified above. During periods of construction of the work of
public art encompassed in the Public Art Locational Plan, Owner shall submit to the City a
written report of the progress of the construction when and as reasonably requested by the City.
The report shall be in such form and detail as may be reasonably required by the City, and shall
include a reasonable number of construction photographs (if requested) taken from the last report
by Owner. Development scheduling or date or times of performance may be subject to revision
from time to time if first mutually agreed to in writing. Such revisions do not constitute
amendments requiring further notice and public hearing.
5.8.2 Inclusionary Housing Fee. Owner shall pay to the City the sum of
$3,000.00 per residential unit (or live -work unit) as a condition of issuance of each building
permit. This fee shall be used by the City to build new or substantially rehabilitate existing
affordable housing in the City.
5.8.3 Cultural In -Lieu Fee. The parties acknowledge that the Original
Agreement included the requirement that Owner construct a 125 -fixed seat legitimate theater as
part of a dual - purpose, "multiplex" motion picture theater complex Due to modifications to the
Project from the Original Agreement to this Agreement, Owner agrees that in lieu of
constructing said theater, it will pay the City a fee of $400,000.00 upon the issuance of the first
building permit for the Project. The City agrees to use this fee toward the design and
construction of a theater.
5.8.4. Park Requirements.
a. Santiago Park Improvements. The Owner shall pay a special Santiago
Park fee of $1.64 per square foot of net rentable or salable square feet of development as a
condition of issuance of each building permit. The parties acknowledge and agree that this
contribution is in addition to any tax or fee or dedication imposed by the City on new residential
development. The City shall use said fees for deferred maintenance and capital improvements to
Santiago Park. If not used or appropriated within five years after payment, this fee shall be
returned to Owner, consistent with the provisions of and exceptions contained within the
California Mitigation Fee Act, Government Code § 66000 et seq. This fee shall be offset against
the fee owed the City pursuant to section 5.8.4(b) of this Agreement (i.e., the amount in the "In-
Lieu Park Fee" required of Owner shall be reduced by an amount equal to the special Santiago
Park fee paid by Owner pursuant to this section).
b. In -Lieu Park Fee. The Owner shall pay an "in lieu" fee at the value of
$35.50 per square foot of area to be dedicated pursuant to the standard established by section 34-
204 et seq. of the Santa Ana Municipal Code, as specified in the City's site plan review letter;
provided, however that the fee may be increased yearly by the average rate of increase in land
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costs in the City of Santa Ana, as that increase is established by the annual change in the
"Construction Cost Index -Los Angeles," published by Engineering News - Record, or substitute
index chosen by the Executive Director should this index is discontinued. The fee shall be paid
for each phase, as set forth in section 5. 1.1 of this Agreement, prior to issuance of the first
building permit for that phase, and shall be utilized by the City in the Quadrant of the City (as set
forth in the City's Park A &D Fee program) in which the Project is located, with priority given to
Santiago Park.
5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and
Restrictions (CC &R's) must be provided and approved by the Executive Director for the project
prior to the issuance of the first building permit. Such CC &R's must contain at a minimum, the
following:
(1) No more than four residents per live -work unit.
(2) All residential and live -work units shall remain owner occupied
and shall not allow rental of the entire unit.
(3) Use Restriction for Live -Work Units. The live -work project must
remain as a live -work community. The work component shall be limited
to one of the allowable uses as specified in the Specific Development
(SD -59) zoning district.
(4) Repair of perimeter walls will be specified in the CC &R's in the
event of damage.
(5) The CC &R's shall provide notice to prospective owners of the
urban character of the City and this area, including but not limited to the
permitted uses of the property and buildings in the immediate area of the
development (e.g.., Main Place Regional Shopping Mall, and surrounding
property zoned and/or devoted to commercial use), and shall provide a
release of all claims against the City which may arise from or relate to the
disclosed matters.
(6) The CC &R's shall reflect that ground floor space in the live -work
units shall be restricted to work/retail activities.
(7) The CC &R's shall reflect that balconies may not be used for
storage.
(8) Terms and Content:
CC &R's are to be in effect for 66 years.
ii. Any proposed modifications to the foregoing provisions of
the CC &R's will require approval by the Executive Director.
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5.9 Responsibility For Costs of Work Of Public Art. The City and Owner
agree that Owner shall be responsible for all costs associated with the design, construction,
maintenance and repair of the work of public art provided for in the Public Art Locational Plan.
5.10 City to Receive Contract Documents. Owner shall furnish the City,
upon written request, copies of contracts and supporting documents relating to the work of
public art.
5.11 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's existing regulatory process
shall be governed by the terms of those approvals, and in no event shall such conditions be
affected by the termination, cancellation, rescission, revocation, or default or expiration of this
Agreement.
5.12 Moratoria. In the event an ordinance, resolution or other measure is
enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate,
amount, timing, sequencing, or phasing of the development or construction of the Project on all
or any part of the Property or the implementation or construction of a mitigation measure, the
City agrees that such ordinance, resolution or other measure shall not apply to the Project, the
Property or this Agreement.
5.13 Compliance With Governmental Requirements. Owner shall carry out
the design, construction, and operation of the Project in substantial conformity with all
applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United
States, the State of California, the County of Orange, the City, or any other political subdivision
in which the Property is located, and of any other political subdivision, agency, or
instrumentality exercising jurisdiction over the City, the Owner or the Property, including all
applicable federal, state, and local occupation, safety and health taws, rules, regulations and
standards, applicable state and labor standards, applicable prevailing wage requirements, the
City zoning and development standards, City permits and approvals, building, plumbing,
mechanical and electrical codes, as they apply to the Property and the Project, and all other
provisions of the City and its Municipal Code (as they apply to the Property and the Project), and
all applicable disabled and handicapped access requirements, including, without the limitation,
the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq.,
and the Unruh Civil Rights Act, Civil Code § 51 et seq. ( "Governmental Requirements ").
6. ANNUAL REVIEW.
6.1 City and Owner Responsibilities. The City shall, at least every twelve
(12) months during the term of this Agreement, review the extent of good faith substantial
compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section
65865. 1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good
faith compliance with the terms of the Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in compliance with the
Agreement after the annual review set forth in Section 6.1 above, the City shall, upon written
request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon
14
information known or made known to the City Council, the City Planning Commission and/or
the City Executive Director, the Agreement remains in effect and Owner is not in default.
Owner may record the Letter in the Official Records 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.
DEFAULT.
7.1 Owner Events of Default. Property Owner is in default under this
Agreement upon the happening of one or more of the following events or conditions (each, an
"Owner Event of Default'):
(1) If a material warranty, representation, or statement made or
fumished by Property Owner to the City is false or proves to have been false in any material
respect when it was made; or
(2) A finding and determination made by the City following a periodic
review under the procedure provided for in Government Code Section 65865.1 and Section 6.1
of this Agreement that upon the basis of substantial evidence the Property Owner has not
complied in good faith with one or more of the material terms or conditions of this Agreement;
(3) Failure to comply with Governmental Requirements;
(4) Any other event, condition, act, or omission which materially
interferes with the intent and objectives of this Agreement.
7.2 Procedure upon Default.
(1) Upon an Owner Event of Default, the City through the Executive Director
shall submit to Owner, a written notice of default, in the manner provided in Section 4. 10,
identifying with specificity the nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured. Upon receipt of the notice of default, the Owner
shall cure the identified default(s) at the earliest reasonable time after receipt of the notice of
default and shall complete the cure in any event not later than one hundred and twenty (120)
days after receipt of the notice of default, or such longer period as is reasonably necessary to
remedy such default(s), provided that the Owner shall continuously and diligently pursue such
remedy at all times until such default(s) is cured. If Owner has failed to remedy or diligently
proceed to remedy such default(s) after proper notice and expiration of said one hundred and
twenty (120) day cure period or such extended period as provided herein, the City may terminate
or amend this Agreement in accordance with the procedure adopted by the City. Failure or delay
in giving notice of default- shall not constitute a waiver of any default, nor shall it change the
time of default.
15
(2) If after the cure period has elapsed, the Executive Director finds
and determines that Owner has not cured the default pursuant to this Section 7.2, Owner shall be
entitled to appeal that finding and determination to the City Council by filing an appeal with the
City Clerk, if at all, within fourteen (14) days after the mailing of such finding and determination
to Owner, or its successors, transferee, and /or assignees, as the case may be. The City Council
shall act upon the finding and determination of the Executive Director within ninety (90) days
after the filing of such appeal. In the event of a finding and determination that all defaults are
cured, there shall be no appeal by any person or entity.
(3) The City does not waive any claim of defect in performance by
Property Owner, if on periodic review the City does not propose to modify or terminate this
Agreement.
(4) Non - performance shall not be excused because of a failure of a
third person.
(5) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Owner, shall be sufficient to terminate this Agreement
and a hearing on the matter shall not be required.
(6) Adoption of a law or other governmental activity making
performance by the Owner unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the Property Owner.
(7) All other remedies at law or in equity which are not inconsistent
with the provisions of this Agreement are available to the parties to pursue in the event there is a
breach.
7.3 Damages upon Termination. In no event shall Property Owner be
entitled to any damages against the City upon termination of this Agreement for an Owner Event
of Default.
7.4 Institution of Legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any default or breach, to
specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any
threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the
purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County
of Orange, State of California, or in the Federal District Court in the Central District of
California, Southern Division.
8. ENCUMBRANCES AND RELEASES ON PROPERTY.
8.1 Discretion to Encumber. This Agreement shall not prevent or limit
Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion
of the Property or any improvement on the Property by any mortgage, deed of trust, or other
16
security device (or any number of them) securing financing with respect to the Property or its
improvement (any such encumbrance, a "Mortgage ").
8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage
or beneficiary of a deed of trust encumbering the Property or any part thereof and their
successors and assigns ( "Mortgagee ") shall, upon written request to the City, be entitled to
receive from the City written notification of any Owner Event of Default.
8.3 Performance of Covenants. The Mortgagee shall have the right, but no
obligation, to perform any term, covenant or condition and to remedy any Owner Event of
Default hereunder within the time periods specified herein, and the City shall accept such
performance with the same force and effect as if furnished by the Owner; provided, however,
that said Mortgagee shall not thereby or hereby be subrogated to the rights of the City.
8.4 Default by the Owner. In the event of an Owner Event of Default that
has not been cured by the Owner or as to which there is no cure period hereunder, the City
agrees not to terminate this Agreement (1) unless and until the City provides written notice of
such default to any Mortgagee and such Mortgagee shall have failed to cure such Owner Event
of Default within ninety business days after the later of delivery of such notice or expiration of
any applicable Owner cure period, and (2) as long as:
(a) In the case of an Owner Event of Default that cannot practicably be
cured by the Mortgagee without taking possession of the Property (which defaults shall not
include defaults "not susceptible of being cured" as defined below), (x) the Mortgagee has
delivered to the City, prior to the date on which the City shall be entitled to give notice of
termination, a written instrument wherein the Mortgagee unconditionally agrees that (subject to
such delays as may be incident to obtaining a relief from stay in the case of a
bankruptcy /dissolution event) it will commence and diligently pursue cure of such Owner Event
of Default promptly following its obtaining possession and; (y) said Mortgagee shall proceed
diligently to obtain possession of the Property (including possession by receiver) (subject to such
delays as may be incident to obtaining a relief from stay in the case of a bankruptcy /dissolution
event) and, upon obtaining such possession, shall proceed diligently to cure such Owner Event of
Default; and
(b) In the case of an Owner Event of Default that is not susceptible to
being cured by the Mortgagee, the Mortgagee shall institute foreclosure proceedings and
diligently prosecute the same to completion (subject to such delays as may be incident to
obtaining a relief from stay in the case of a bankruptcy /dissolution event) (unless in the
meantime it shall acquire the Owner's right, title and interest hereunder, either in its own name
or through a nominee, by assignment in lieu of foreclosure) and upon such completion of
acquisition or foreclosure such Owner Event of Default shall be deemed to have been cured.
The Mortgagee shall not be required to obtain possession or to continue in
possession as Mortgagee of the Property pursuant to Subsection 8.4(a) above, or to continue to
prosecute foreclosure proceedings pursuant to Subsection 8.4(b) above, if and when such Owner
Event of Default shall be cured. Nothing herein shall preclude the City from exercising any of
its rights or remedies with respect to any other Owner Event of Default during any period of
17
such forbearance, but in such event the Mortgagee shall have all of its rights provided for herein.
If the Mortgagee, its nominee, or a purchaser in a foreclosure sale, shall acquire title to Owner's
right, title and interest hereunder and shall cure all Owner Events of Defaults that are susceptible
of being cured by the Mortgagee or by said purchaser, as the case may be, then prior Owner
Events of Default that are not susceptible to being cured by the Mortgagee or by said purchaser
shall no longer be deemed Owner Events of Default hereunder.
Except as set forth herein, nothing contained herein shall require any Mortgagee
to cure any Owner Event of Default.
8.5 Foreclosure. Foreclosure of any Mortgage, or any sale thereunder,
whether by judicial proceedings or by virtue of any power contained in a Mortgage, or any
conveyance of the Project from the Owner to a Mortgagee or its designee through, or in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent
of the City or constitute a breach of any provision of or a default under this Agreement; and upon
such foreclosure, sale or conveyance the City shall recognize the purchaser or other transferee in
connection therewith as the Owner hereunder provided that such purchaser or transferee
assumes, subject to the terms of Section 8.4 above, each and all of the obligations of the Owner
hereunder pursuant to an assumption agreement satisfactory to the City. If any Mortgagee or its
nominee or assignee shall acquire the Owner's right, title and interest hereunder as a result of a
judicial or nonjudicial foreclosure under any Permitted Mortgage, or by means of a deed in lieu
of foreclosure, or through settlement of or arising out of any pending or contemplated
foreclosure action, such Mortgagee shall thereafter have the right to assign or transfer the
Owner's right, title and interest hereunder to an assignee upon obtaining the City's consent with
respect thereto, which consent shall not be unreasonably withheld or delayed. Upon such
acquisition of the Owner's right, title and interest hereunder as described in the preceding
sentence by either Mortgagee, or the assignee or nominee of Mortgagee, or the purchaser from
Mortgagee, assignee or nominee, the City shall immediately execute and deliver a new
agreement or amend this Agreement with such party, upon the written request therefor by such
party given not later than one hundred twenty (120) days after such party's acquisition of the
Owner's right, title and interest hereunder. Subject to the terms of Section 8.4 above, such new
agreement or amended Agreement shall be substantially the same in form and content to the
provisions of this Agreement, except with respect to the parties thereto, and the elimination of
any requirements which have been fulfilled by the Owner prior thereto, and said agreement shall
have priority equal to the priority of this Agreement. Upon execution and delivery of such new
agreement or amended Agreement, the City shall cooperate with the new owner, at the sole
expense of said new owner, in taking such action as may be necessary to cancel and discharge
this Agreement and to remove Owner named herein from the Property.
8.6 Releases. The City agrees that upon written request of Property Owner
and payment of all fees and performance of the requirements and conditions required of Owner
by this Agreement with respect to the Property, or any portion thereof, the City shall execute and
deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form
and substance acceptable to the Orange County Recorder or as may otherwise be necessary to
effect the release.
81
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, including without limitation the Original
Agreement. All waivers of the provision of this Agreement must be in writing and signed by the
appropriate authorities of the City or of Owner. All amendments to this Agreement must be in
writing signed by the appropriate authorities of the City and Owner, in a form suitable for
recording in the Official Records of Orange County, California. Within ten (10) days following
the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official
Records of Orange County, California. Upon the completion of performance of this Agreement
or its revocation or termination, an appropriate Certificate of Completion acknowledging such
occurrence signed by the appropriate agents of Owner and the City shall be recorded in the
Official Records of Orange County, California.
9.3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section
65864 et seq.; (b) the City has no interest in or responsibilities for or duty to third parties
concerning any improvements to the Property or in connection with the Project; and (c) Owner
shall have the full power and exclusive control of the Property subject to the obligations of
Owner set forth in this Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section 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. Where the consent or approval of a party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with
each other in good faith, and assist each other in the performance of the provisions of this
Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
9.9 Conflicts of Law. In the event that state or federal laws or regulations
enacted after this Agreement has been entered into or the action or inaction of any other affected
19
governmental jurisdiction prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps, or permits approved by the City, the parties shall
provide the other party with written notice of such state or federal restriction, provide a copy of
such regulation or policy, and a statement of conflict with the provisions of this Agreement. The
parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to
modify this Agreement to comply with such federal or state law or regulation. Thereafter,
regardless of whether the parties reach an Agreement on the effect of such federal or state law or
regulation upon the Agreement, the matter shall be scheduled for hearing before the Council.
Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The
City Council, at such hearing, shall determine the exact modification or suspension which shall
be necessitated by such federal or state law or regulation pursuant to Government Code Section
65869.5. At the hearing Owner shall have the right to offer oral and written testimony.
9.10 No Reliance By One Party On The Other. Each party has received
independent legal advice from its attorneys with respect to the advisability of executing this
Agreement and the meaning of the provisions hereof. In addition, the provisions of this
Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question.
9.11 Arms Length Transaction. Each party represents and warrants to the
other the following: it has carefully read this Agreement, and in signing this Agreement it does
so with full knowledge of any rights which it may otherwise have, and it has freely signed this
Agreement without any reliance upon any agreement, promise, statement or representation by or
on behalf of the other party or its agents, employees, or attorneys, except as specifically set forth
in this Agreement, and without duress or coercion, whether economic or otherwise.
9.12 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10)
days following the effective date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the City of
Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. NS -2677,
authorizing such execution, and by Property Owner.
Dated this 7th day of March, 2005.
ATM
PA IR/C/A f. HEALY
CLERK OF 7WF COUNCIL
THE CITY OF SANTA ANA
By
DAVID N. REAM
City Manager
(signatures continued on next page)
20
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of Orange
}SS.
On March 24, 2005, before me, _ Claudia M. Fernandez -Shaw, Notary Public,
Name and Title of Officer (e.g., "Jane Doe, Notary Public ")
personally appeared David N. Ream
CLAUDIA M. FERNANDEZSHAyl
_ Commiasion8133667;
Notary Public • California y
Orange County
%MyCorriln. E;Winas .fan 25, 2006
personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person whose nameAolue
subscribed to the within instrument and
acknowledged to me thatjjV 1 ny e executed
the same in kLPherttlTeir authorized
capacity(i€s), and that by `lPher#Eeii --
signature(s) on the instrument the person S, or
the entity upon behalf of which the ersonX
acted, executed the instrument.
ITNESS mvAland and official seal.
Place Nonry Seal AWo c � /
OPTIONAL L/
Though the information below is not required bylaw, it may prove valuable to persons relying on the document
And could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s):
❑ Partner -- ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Number of Pages:
Approved as to Form:
Lo
(signatures continued from previous page)
MAIN STREET CONCOURSE LLC,
a California limited liability company
By: Its Development Merger,
BDC LLC, //
a California limi� liability company
By:
Robert H. Bisno, Its Manager
21
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California 1
} ss.
County of 6 5��.15 J
On [4,6 firm IS, 7rct before me,GVUK -C �-M- t.tzfty_ I- IL -ktdx" --V. ACS �k�rL
I to ++ ,, Nome and The of Officer (e.g 'Jane Doe, Notary Pubfic')
personally appeared f_ �',c l .t� �S No ,
Namels( of erlst
ersonally known to me
❑ proved to me on the basis of satisfactory
evidence
GRACE C.167W4M-0NLDOINOt7
Commission i 1347701
Notary Public - California
Los Angeles County
A
to be the person(s) whose name(s) is/ere -i\
subscribed to the within instrument and
acknowledged to me that h"4111 1h executed
the same in hic[�r�rt, . authorized
capacity(ies), and that by this /Herltheir-
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted /executed the instrument.
OPTIONAL
Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document /
Title or Type of Document: Kt.li:2CV tt p�; • `:
Document Date: C for 1C-A 1 7TM j Number of Pages: 94
Signer(s) Other Than Named Ab e:
Capacity(ies) Claimed by Signer p
Signer's Name:
C Individual toP O(mt,mo Here
❑ Corporate Off icer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
7 Trustee
EXIMIT "A"
LEGAL DESCRIPTION
All that certain land situated in the Stan: of Califoma, County of OranM City of Santa Ana, described as follows:
PARCEL A:
The Northerly 100.00 feet of that portion of the land allotted to Abel Steam, as des='bed in the final decree of
partition of the Rancho Santiago De Santa Ana, which was entered Scpteu>tier 12, 1868 in book "B" page 410 of
Judgmerrts of the District Court of the 171 Judicial District in and for Los Aagelcs County, California, described as
follows:
Commeming at the intersection of the East litre of North Main Street, as said East line existed on January 10, 1922,
with the South line of Section 31, Township 4 South, Range 9 West, San Bernardino Meridiarg thence North on the
East line of said Main Strad 150.00 feet; thence East parallel to the South line of said section 14525 feet; thence
South 150.00 feet thence West 145.25 feet to the point of beginning.
EXCEPTING therefrom the Westerly 31.00 feet tbereo& as granted to the City of Santa. Ana by deed recorded June
15, 1970 in book 9316, page 748 of Official Records of Orange County, Califamia.
PARCEL B:
The Southerly 50.00 fret of that portion of the land allotted to Abel Stearn, 35 described in the final decree of
partition of the Rancho Santiago De Santa Ana, which was entmd September 12, 1868 in book 'B" page 410 of
Judgments of the District Court of the 17' Judicial District in and for Los Angeles County, California, descriled as
follows:
Commencing at the intersection of the East line of North Main Street, as said East line existed on January 10, 1922,
with the South line of Section 31, Township 4 South, Range 9 West, San Bernardino Meridian; thence North on the
East line of said Main Street 150.00 feet thence East pamilcl to the South lime of said soction 145.25 feet; thence
South 150.00 feet; thence West 145.25 feet to the point of beginning.
PARCEL C:
That portion of Section 31, Township 4 South, Ringo 9 West allotted to Abel Steam, as described in the final dc=t,
of partition of the Ranicbo Santiago De Santa Ana, which was entered September 12, 1868 in book 'B" page 410 of
Judgto nts of the District Court of the 17" Judicial District in and for Los Angeles County, Calfoma, described as
follows:
Beginning at the Northwest corner of land fom=ly of G. W. Vance; tumting thence North 10.50 chains to the
Southwest comer of Land fourodly of J. M. King; thence East 25.23 chains to the Southeast corner of said land of J.
M. King; thence South 10 chains to the township lint, and thence West along the Township line to the point of
beginning, and being in the Southwest quarter of Section 31, Township 4 South, Range 9 West, San Bernardino
Base and Meridian.
EXCEPTING therefrom the East 6 acres.
ALSO EXCEPTING therefrom the following:
Beginning at the intersection of the East line of North Main Sheet, with the South lino of Section 31, Township 4
South, Range 9 West, San Bernardino Base and Metidian; running thence North on the East line of North Main
Street 150.00 fear thence East parallel to the South line of said Section 31, 145.25 feet; thence South 150.00 feet
trance Weet 145.25 feet to the point of beeutning.
FN.FAALIFIIENUMa'OIO2nWac�Lnvr DeMGOc
JUT. 31 2003 15 :4S 310 2 ?? 0846 PRGE.04
ALSO EXCEPTING a strip of land along the Southerly line of said land as granted to County of Orange by deed
recorded December 9, 1937, in book 915, page 422, records of Orange County, described as follows:
Beginning at the Southwest comer of that certain. property described in deed to J. A. IkWl and Doss A. Engel
recorded is book 683, page 337 of Official Records of Orange County, California, and tinning thence from said
point of begging along the Northerly city limits of the City of Santa Ana, South 83' 39' 50" West, a radius of
140.30 fect,.a radial line from said point is said curve bears South 29' 41'40" East; thence Northeasterly along said
curve, through a central angle of 25' 59' 00", 63.63 feet to a line tangent thence North 86' 17'20" East, along said
tangent line, 392.96 feet, more or less, to a paint in the West line of the above`mentiom>d property described in decd
to J. A. Engel and Don Engel, which point bean North l' 30' 20" East, 33.04 feet :from the point of beginning;
- thence South 1' 30' 20" 'West, 33.04 feet along said West at to Tie point of beginning. .
PARCEL D:
That portion of Lot 7 of Tract No. 721, as shown on a map reeotried in book 22, page 4 of Miscellaneous Maps,
records of Orange County, California, described as follows:
Beginning at a point in the Northerly line of said Lot 7 distant thereon South 88' 28' West 242.01 feet from the
Northeast comer of said Lot 7, and ttmaing thence Southwesterly along a curve concave Southeasterly and having a
radius of 250 feet, a radial line through said point of beginning bearing South 30' 25' Eas4 a distance of 86.39 feet
to a point of reverse curve, thence Southwesterly along said curve, concave Northwesterly and having a radius of
203 feet, a distance of 71.05 feet, more or less, to a point which is 104.99 feet Northeasterly, measured along said
curve from the Southeast corner of Lot 6 of said Tract No. 721; thence North 0' 45' East, parallel with the Easterly
line of said Lot 6, 97.95 feet to a point in the Northerly line of said Lot 7 which is distant thereon North 88' 28' East
100.08 from the Northeast comer of said Lot 6; thence North 83' 28' East along said Northerly line 118.40 feet to
the point of beginning.
PARCEL E:
Lot 5 of Tract No. 721, as shown on a map recorded in book 22, page 4 of Miscellaneous Maps. records of Orange
County, California.
PARCEL F:
That portion of Lots 1, 3 and 4 in Block A of tract No. 315 as shown on a map recorded in book 14, page 49 of
Miscellaneoud Maps of said County, together with thrt portion of Lots 1, 2, 3, 4, 6 and 7 of Tract N0.721 as shown
on a map recorded in book 22, page 4 of Misallaneaus daps of said County, said portions lying Northerly of the
following described line:
Beginning at a point in the Southerly line of Lot 2, Block A of said Tract No. 315, disemt South 89' 27' 02" East,
66.00 feet from the centerline of Main Street; thence North 1' 05' 18" East 71.00 feet to a line distant 71.00 feet
Northerly from and measured at right angles to said South line; thence parallel with the Soudt lie of said Lots South
89' 27'02" East, 274.27 feet to the beginning of a tangent curve concave Nortberly having a radius of 933.00 feet;
thence Easterly along said curve through a central angle of 6' 30' 13" an are length of 105.90 feet to a point of
revere curve concave Southerly, having a radius of 60.00 feet thence Easterly along said curve through a central
angle of 13' 56' 16" an arc length of 14.60 feet; thence tangent to said curve South 82' 00' 59" East, 33.91 her to
the beginning of a tangent curve concave Northerly, having a radius of 42.00 fcct; thenrn Easterly along said curve
through a central angle of 17' 35'00" an arc length of 12.89 feet to a point of compound. curve, concave Northerly,
having a radius of 946.00 feet thence Easterly along said curve through a central angle of 1' 47'47", an arc length
of 29.66 feet; thence North 23' 49'48" East, 27.78 feet; thence North 74'26'4811 East, 51.73 feat; thence South 68'
14' 13" East, 21.12 feet to the beginning of a curve concave northerly having a radius of 935.00 fret; thence Easterly
along said curve through a central angle of 1' 43' 35" an arc length of 28.17 feet thence tangent to said curve North
71' 38' 39" East, 13.06 feet to the North line of said Lot 7, Tract No. 721. thence along said North line North 88'
48' 12" East, 158.23 feet to the North line of Owens Drive as shown on map of record of survey filed in Record of
F :V.rnnUSLIMM.."I randec G-M DvA.d"
310 277 0845 PAGE.05
JUL 31 2003 15 :47
Surveys, book 10, page 21, records of said County being a point in a curve concave Swuheasteriy having a radius of
250.00 feet; said lure sball be extended Westerly, to intersect the West line ofsaid Lot 1.
EXCEPTING therefrom that portion of said Lot 1 in Block A of Tract No. 315 lying Wcatcrly of a line parallel with
and 66.00 65et Past of the centaline of Main Street as shown on said map of Tract No. 315.
ALSO EXCEPTING therefrom that portion of said Let 1 in Block A of Tract No. 315 enclosed within a triangular
sbaped ma bounded Westerly by the South 25.00 feet of said line 66.00 feet East of Main Street ceatcrUnt'-
bounded Southerly by the Went 25.00 feet of the lice first above described having a bearing and disnmce of South
89° 27' 02" East, 274.27 feet; and banded Northeasterly by a straight line connecting the North and Bast and points
of said boundary lines.
F'.UGN.VttPNW.tsntctrN «tG.Lt "&dx
JlL 31 2003 15 :47 310 277 0846 PAGE.06
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EXHIBIT C
Public Art Locational Plan
Public art valued at one -half of one percent (0.5 %) of the project building permit valuation is
required. Public art shall be comprised of a single art piece (or two or more pieces, as agreed
to by the City's Planning Commission and Owner) to be placed along Main Street at one or
two major entrances to the Project, with the final location to be determined as specified in
paragraph 2.5 of this Agreement. The public art should invite participation and interaction,
inspire, add local meaning, interpret the community by revealing its culture or history, and /or
capture or reinforce the unique character of the new place. A comprehensive Public Art Plan
indicating compliance with this requirement, and which proposes specific pieces of art for
specific locations or applications, shall be submitted to the Planning Commission prior to the
completion of the project's first phase. All public art approved by the Planning Commission
in the Public Art Plan shall be completely installed as provided in paragraph 5.8.1 of this
Agreement. Review and approvals required by the Planning Commission pursuant to
sections 5.8, 5.8.1 or this Exhibit C may be delegated to a committee of same duly
constituted pursuant to the Planning Commission's bylaws.
2. Art should be sited to complement features such as plaza or architectural components so that
the art is an integral part of the development site.
3. Public art should be constructed using durable materials and finishes including but not
limited to stone or metal.
4. No art piece provided pursuant to the public art requirement shall include advertising of any
type, including but not limited to products, services or businesses.
5. All public art provided pursuant to the public art requirement shall be properly maintained at
all times, be free of any graffiti and shall not incorporate any flashing or distracting form of
illumination.
6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the
project site and may not be removed without the approval of the Planning Commission.
7. Expenses Not Allowed from Art Allocation
i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees.
iii. Landscaping around a sculpture that is not included as part of the artist's sculpture
furnishings, including, but not limited to, functional structures, prefabricated water or
electrical features not created by the artist, and ornamental enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integral to the illumination of the art piece.
vi. Publicity, public relations, photographs, educational materials, business letterhead
or logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
8. To be eligible, the proposed work of public art shall not be:
i. a mass produced object from a standard design;
ii. a reproduction, whether produced by mechanical or other means, of an original work
of art;
iii. elements of building, designed by the building's architect, as opposed to a public
artist commissioned for the express purpose of creating a unique work of public art;
nor
iv. a water feature, in whole or in part.
Development Agreement No. 04 -04
EXHIBIT D
Phasing Plan
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MIX
City Place Project
Public Improvements
Improvement
Install a traffic signal
Install a crosswalk and associated traffic signal
Construct new cub, gutter and sidewalk
Construct new sidewalk
Replace damaged curb, gutter and sidewalk
Street light installation
Repave from centerline to edge of gutter
Underground all existing overhead utility lines
Location
Lawson and Memory Lane
Memory Lane and Crescent
Property frontage of Lawson Way
Property frontage of Memory Lane
Property frontage of Main Street
Property frontage of Lawson Way
Property frontage of Lawson Way
Along property frontage of Memory Lane
EXHIBIT E
r
Development Agreement No. 04 -04
EXHIBIT F
Residential Tower Study Area
'i
i
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, Ca.
ATTN: Clerk of the Council
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
09--JUN-1993 M
DC C # 93-0385606
Recorded h) Offici a! Records
tii u "r+tiiae i.Diitiil',+ Caai`i 0r i;-,a
Lee A. r itli, P,Dlirify Recorder
1,7aje i Qf 4' Fees: 1 i2.5A fifi
Taff: t Mo
and
t1JJ
ORIENT CORPORATION OF AMERICA, INC.
�E:,
DATED: May 3, 1993
W" <I.M
CONTENTS
1. Binding Effect of Development Agreement. . . . . . . . . 3
2. Relationship of the Parties . . . . . . . . . . . . . . 4
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Development Standards and Phasing . . . . . . . . . . . 5
5. Processing of Applications and Permits . . . . . . . . . 6
6. Development Review . . . . . . . . . . . . . . . . . . . 6
7. Utility capacity . . . . . . . . . . . . . . . . . . . . 7
8. Reservations and Dedications; Subdivision . . . . . . . 7
9. Development of the Property; Vesting of Development
Rights . . . . . . . . . . . . . . . . . . . . . 8
(a) General Statement . . . . . . . . . . . . . . 8
(b) Existing Development Regulations 8
(c) Exclusion from Definition of Existing Development
Regulations. . . . . . . . . . . . . . . . . . . . 8
(d) Subsequent "Slow /No Growth" Measures . . . . . 9
(e) Rent Control and Condominium Conversion (Office) 9
10. Contributions by Developer . . . . 9
(a) Monorail or other Fixed - Guideway Rail Transit
Station . . . . . . . . . . . . . . . . . . . . . 10
(b) Live Theater . . . . . . . . . . . . . . . . . . 10
(c) Santiago Park Improvements . . . . . . . . . . 11
(d) Neighborhood Traffic Mitigation . . . . . . . . . 13
11. EIR
Mitigation Measures . . . . . . . . . . . . . .
15
(a)
Developer's Obligations . . . . . . . . . . . . .
15
(1) Owens Drive Improvements and Sewer
Obligations . . . . . . . . . . . . . . . .
15
(2) Main street Improvements . . . . . . . . . .
16
(3) Lawson Way Improvements . . . . . . . . . .
17
(4) Signalization . . . . . . . . . . . . . . .
17
(5) Storm Drain Improvements . . . . . . . . . .
17
(6) Transportation Demand Management Program . .
18
(7) Other EIR Mitigation Measures . . . . . . .
18
(b)
City's Obligations . . . . . . . . . . . . . . .
18
(c)
Cummulative Impacts . . . . . . . . . . . .
18
(1) Payment of Transportation Impact Fees . . .
18
(2) Use of Transportation Impact Fees . . . . .
19
(d)
Residential density limitation . . . . . . . . .
19
12. Municipal Financing . . . . . . . . . . . . . . . . . 19
i
13. Subsequent Environmental Review . . . . . . . . . . .
14. Assignment . . . . . . . . . . . . . . . . . . . . . .
15. Periodic Review of Compliance . . . . . . . . . . . .
16. Amendment or Cancellation . . . . . . . . . . . . . .
17. Supersession of Development Agreement by changes in State
or Federal Law . . . . . . . . . . . . . . . . . . . .
18. Enforced Delay and Extension of Times of Performance .
19. Notices . . . . . . . . . . . . . . . . . . . . . . .
20. Default and Remedies . . . . . . . . . . . . . . . . .
21. Estoppel Certificate . . . . . . . . . . . . . . . . .
22. Recordation of Agreement . . . . . . . . . . . . . . .
23. Severability . . . . . . . . . . . . . . . . . . . . .
24. Notice of Default to Mortgage, Deed of Trust or Other
Security Interest Holders Right to Cure . . . . . . .
25. Cooperation in the Event of Legal Challenge . . . . .
26. Enforceability of Agreement . . . . . . . . . . . . .
27. Cooperation; Execution of Documents . . . . . . . . .
28. Justifiable Reliance . . . . . . . . . . . . . . . . .
29. Entire Agreement; Waivers . . . . . . . . . . . . . .
30. Effective Date . . . . . . . . . . . . . . . . . . . .
31. Rules of Construction; Section Headings . . . . . . .
32. Time of the Essence . . . . . . . . . . . . . . . . .
33. Counterparts . . . . . . . . . . . . . . . . . . . . .
EXHIBITS:
No. 1 Legal Description of the Property
No. 2 Map of the Property
No. 3 Phases of Development
ii
20
21
22
23
23
23
24
24
25
26
26
26
27
28
28
28
29
29
29
29
30
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF SANTA ANA AND
ORIENT CORPORATION OF AMERICA, INC.
THIS DEVELOPMENT AGREEMENT ( "Development Agreement ") is
made and entered into this 3rd day of May , 1993, by
and between the CITY OF SANTA ANA, a municipal corporation
organized and existing under the laws of the State of California
( "City "), and ORIENT CORPORATION OF AMERICA, INCA" a California
corporation ("Developer"). 4 04V&e/q.
R E C I T A L S
A. California Government Code Sections 65864 et seq.
provide that the legislative body of a city may enter into a
development agreement for the development of real property in order
to, among other things: (i) vest certain rights in the developer;
(ii) provide certainty in the approval of development projects in
order to avoid the waste of resources; (iii) encourage investment
in and commitment to comprehensive planning which will make maximum
efficient utilization of resources at the least economic cost to
the public; (iv) strengthen the public planning process and
encourage private participation in comprehensive planning; and (v)
reduce the economic costs of development by providing assurances to
the developer that the developer may proceed with its projects in
accordance with existing policies, rules, and regulations.
B. Pursuant to California Government Code Section
65865, the City has adopted its Resolution No. 82 -92, establishing
procedures and requirements for the approval of development
agreements. Developer has applied to City pursuant to California
Government Code Sections 65864- 65869.5, and pursuant to said
Resolution for approval of the Development Agreement set forth
herein.
C. The City desires to enter into this Development
Agreement with the Developer in order to facilitate the development
of certain property (the "Property ") known as "Main Street
Concourse" (the "Development ") , more fully described in Exhibit "A"
and shown on the map set forth on Exhibit "B ", both attached
hereto. Such development shall be in accordance with (i) the
Specific Development Plan No. 59 , adopted by the same
ordinance by which this Development Agreement was approved by the
City and on file with the City Clerk and incorporated herein by
reference (the "Plan "), and (ii) Existing Development Regulations
(as defined below). The City has given notice of its intention to
adopt this proposed Development Agreement, has conducted public
hearings thereon pursuant to Government Code Section 65867, and
City's Resolution No. 82 -98 and has found that the provisions of
this Development Agreement and its purposes are consistent with the
objectives, policies, general land uses and programs specified in
the city's General Plan, the Plan, and Existing Development
Regulations. In connection with its approval of the Development,
a Final Environmental Impact Report ("EIR") was prepared and
certified by the City Council on April 19 ,
1993. Vesting Tentative Map No. 14408 (authorized pursuant to
Government Code Section 66498.1 et seq.), designed for multiple
phased final maps (authorized pursuant to Government Code Section
66456.1) was approved by the City on April 19 ,
1993 (the "Map "). The Plan, the Map, and all other discretionary
land use approvals granted by the City prior to the Effective Date
(as hereinafter defined) of this Development Agreement are
collectively referred to herein as the "Approvals."
D. Development of the Property, which is a largely
vacant area almost totally lacking in required infrastructure
improvements, requires the construction of substantial public
improvements in various phases, many of which improvements will
benefit both the Development and surrounding areas. Certain
development risks and uncertainties associated with the long term
nature of the Development, including the cost of the portion of
these public improvements, could discourage and deter Developer
from making the long term commitments necessary to fully develop
the Property; therefore, the parties desire to enter into this
Development Agreement in order to reduce or eliminate uncertainties
to such development over which the City has control.
E. This Development Agreement will assist in achieving
the City's goal of ensuring development of a vital and visually
exciting project of the highest quality architecture. As permitted
by law, the City and the Developer desire to use this Development
Agreement to establish high quality design and development
standards for the entire build -out period of the Development,
including all phases thereof, the permitted uses for the Develop-
ment, and to identify the scope of public infrastructure improve-
ments to be required for and as a result of, the Development.
F. The City recognizes that Developer may sustain
substantial losses if the City were to default in its obligations
herein undertaken, including the substantial investment made by
Developer to plan the Development.
G. The City, by electing to enter into contractual
agreements such as this one, acknowledges that the obligations of
City shall survive beyond the term or terms of the present City
Council members, that such action will serve to bind the City and
future City Councils to the obligations thereby undertaken, and
this Development Agreement might limit the future exercise of
certain governmental and proprietary powers of the City. By
approving this Development Agreement, the City Council has elected
E
to exercise certain governmental powers at the time of entering
into this Development Agreement rather than deferring its actions
to some undetermined future date. The terms and conditions of this
Development Agreement have undergone extensive review by the
neighboring community, the City Planning staff, the Planning
Commission and the City Council and have been found to be fair,
just and reasonable, and the City has concluded that the pursuit of
the Development will serve the best interests of its citizens and
the public health, safety and welfare will be best served by
entering into this obligation. City acknowledges that Developer
would not consider or engage in the Development without the
assurances of development entitlement which this Development
Agreement is designed to provide.
H. The mutual undertakings, assurances, and covenants
provided for in this Development Agreement provide public benefits
to the City and its residents, including the promotion of compre-
hensive planning, private and public cooperation and participation
in the provision of public benefits, the increase in the City tax
revenues from the Development, and the effective and efficient
development of public facilities and infrastructure supporting the
Development which was contemplated and promoted by Government Code
Sections 65864 et seq.
I. This Development Agreement will promote and
encourage the development of the Property by providing the
Developer and its creditors with a greater degree of certainty of
the Developer's ability to expeditiously and economically complete
the development effort, and the parties agree that the consider-
ation to be received by the City pursuant to this Development
Agreement and the rights secured to the Developer hereunder
constitute sufficient consideration to support the covenants and
agreements of the City and the Developer. By entering into this
Development Agreement, City desires to vest in Developer, to the
fullest extent possible under the law, the development entitlements
specified herein in order to promote the completion of the
Development.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Binding Effect of Development Agreement.
This Development Agreement pertains to the Property as
described in Exhibit "A ", provided, however, that with regard to
any portion of the Property as to which the Developer does not have
a legal or equitable interest on the date of this Development
Agreement, this Development Agreement shall apply to such portion
only if and when the Developer acquires such an interest in such
3
portion. The burdens of the Development Agreement are binding
upon, and the benefits of the Development Agreement inure to all
successors in interest of the parties to the Development Agreement,
and constitute covenants which run with the Property, and in order
to provide continued notice thereof, this Development Agreement
will be recorded by the parties.
The assurances provided to Developer in this Development
Agreement are provided pursuant to and as contemplated by Govern-
ment Code Sections 65864 et seg., and in consideration for the
undertakings of Developer as set forth in this Development
Agreement, and are intended by the City to be and have been relied
upon by Developer to its detriment in undertaking the obligations
and covenants provided in this Development Agreement and in
expending monies and making improvements pursuant to this Develop-
ment Agreement. The parties agree that the consideration to be
received by the City pursuant to this Development Agreement and the
rights secured to Developer hereunder constitute sufficient
consideration to support the covenants and agreements of the City
and Developer.
2. Relationship of the Parties.
It is hereby specifically understood and acknowledged
that the Development is a private project and that neither the City
nor Developer will be deemed to be the agent of the other for any
purpose whatsoever. City and Developer and its successors and
assigns mutually deny any intention to form a joint venture or
partnership between city and Developer, and agree that nothing
contained herein or in any document executed in connection herewith
shall be construed as making the City and Developer, or its
successors and assigns, joint venturers or partners.
3. Term.
(a) Unless the term is otherwise modified or extended by
the parties as set forth in this Development Agreement, the term
( "Term ") of this Development Agreement is twenty (20) years from
the Effective Date (defined below), subject to earlier termination
as hereinafter provided.
(b) Pursuant to Section 66452.6(a) of the California
Subdivision Map Act, the Map, including any lot line adjustment or
merger of lots (or any other tentative map filed subsequent to the
Effective Date of this Agreement), shall also be extended for a
period equal to the period this Development Agreement remains in
effect.
(c) Notwithstanding subsections (a) or (b) hereof, if,
at the end of the original or modified term, the Property is in the
process of being developed, the term of this Development Agreement
4
shall be further extended until such construction in process is
completed, not to exceed an additional three years after expiration
of the original or modified term.
(d) The termination of this Development Agreement shall
not affect any right or duty arising independently from entitle-
ments to use issued by City or other land use approvals approved
concurrently with or subsequent to the approval of this Development
Agreement.
(e) Upon the expiration or termination of this Develop-
ment Agreement for any reason, the City and Developer and its
successors and assigns agree to cooperate and execute any document
reasonably requested by the other party to remove this Development
Agreement from the public records as to the property or any
applicable portion thereof.
4. Development Standards and Phasing.
In connection with the development of the Property by the
Developer, the City hereby agrees that the permitted uses of the
Property, density of use, intensity of use, maximum height and size
of proposed buildings shall be those set forth in the Plan. The
type, level and phasing of proposed development for the Property is
set forth in Exhibit C, attached hereto and incorporated herein.
Prior to the issuance of a certificate of occupancy for any
residential building on the Property, the Developer shall have:
(i) secured building permits for all buildings stated in
Exhibit C to comprise the nonresidential portion of Phase
I of the development of the Property (the "Phase I
Nonresidential portion ") , to not less than the minimum
square footage for such buildings nor more than the
maximum square footage for such buildings, as set forth
in said Exhibit C;
(ii) provided the City with a certificate from the Developer
that financing (including but not limited to owner
financing) is available with respect to the Phase I
Nonresidential portion, such certificate to be accompa-
nied by customary documentation of the availability of
funds, including letters from any lenders and investors
in the customary form used by lenders and investors in
similar projects in southern California to express their
willingness to finance the Phase I Nonresidential
portion; and
commenced construction of the Phase I Nonresidential
Portion at least to the extent that the poured foundation
of all buildings shall have been completed.
The City's Executive Director of Planning and Building shall, upon
5
request of Developer, issue whatever documentation may be required
to evidence Developer's satisfaction of the aforesaid condition.
Except as provided hereinabove, the Developer may draw building
permits for any part of Phase I of the Development of the Property
at Developer's discretion. The ultimate order and timing of Phase
II of the development of the Property shall be left to the
discretion of the Developer. Subject only to the aforesaid
condition on Phase I of the Development and to the requirements for
a live performance theater in Section 10 of this Agreement, the
Developer may determine to build all or none or only a portion of
the Development, and at density less than the maximum density
allowed in the Plan. In the event that the total square footage of
nonresidential buildings in Phase I, as finally constructed, is
less than the maximum square footage allowed for nonresidential
buildings in Phase I by Exhibit C, the maximum square footage
allowed in Exhibit C for nonresidential buildings in Phase II shall
be increased by the amount of the difference.
5. Processing of Applications and Permits.
The City will accept and process, review and grant,
without undue delay, all applications for grading permits, building
permits, land use approvals, final site plans, tentative maps,
parcel maps, final maps, resubdivisions, map amendments, lot line
adjustments, encroachment permits, sewer and water connection
permits, business licenses, temporary and permanent certificates of
occupancy, or other entitlements or permits with respect to the
development and the use of the Property which are in conformity
with this Development Agreement, the Approvals, the Existing
Development Regulations, and other applicable regulations.
Throughout the term of this Development Agreement, Developer shall
have the right, at its election and without risk to the entitle-
ments vested by the Development Agreement, to apply for revisions
to any approved site plan for the Development, and such applica-
tions shall be reviewed as set forth in this Section 5 and in
Section 6 of this Agreement. It is understood by the parties to
this Development Agreement that pursuant to existing law, develop-
ment review approvals shall not remain valid for the term of this
Development Agreement, but only for the term of such development
review approvals. Accordingly, throughout the term of this
Development Agreement, the Developer shall have the right, at its
election, to file new development review applications on portions
of the Development where any previously approved development review
approvals have expired. Any new development review applications
filed for the Development shall be reviewed in accordance with this
Section 5 and in Section 6 of this Agreement.
6. Development Review.
Nothing set forth herein shall impair or interfere with
the right of the City to require the processing of building permits
as required by law and to conduct its development review of any
rl
specific improvements proposed for the Development pursuant to the
applicable provisions of Chapter 41 of the City's Municipal Code;
provided, however, no such review shall authorize or permit the
City to impose any condition and /or withhold approval to any
proposed building the result of which would be inconsistent with
any term or provision of this Development Agreement or the
Approvals. In the event the Developer requests any density
conversion or changes to the conceptual site plan approved for the
Development as part of the Plan, the City may impose conditions on
its approval of such request which, in the reasonable and good
faith judgment of the City, are designed to mitigate or avoid new
or increased adverse effects which might otherwise occur because of
the conversion or change. It is further agreed that City in all
events shall promptly provide in writing clear reasons for any
disapproval in the event that the City disapproves any building as
proposed.
7. Utility capacity.
It is hereby agreed that City will not undertake any act
or neglect to perform any act or duty which would impair or inhibit
Developer's receipt of water, sewer service or storm drain, the
fees for which Developer has paid or is willing to pay to City for
such service. The City hereby represents that it currently has, or
will have, sufficient sewer, water and storm drain capacity for the
entire development of the Property.
S. Reservations and Dedications; Subdivision.
It is hereby further understood and agreed that no reserva-
tions or dedications of land will be required by the City during
the Term (as herein defined) except as part of the conditions
imposed in connection with the approval of the Map, or as otherwise
agreed to in writing by the City and Developer, except that, (a) in
the event the City installs traffic signals at an intersection
adjacent to the Property, Developer agrees to provide the City with
an easement for the installation of underground traffic signal
appurtenances, if it is necessary for such appurtenances to
encroach into the Property, or (b) in the event that Developer
applies for a revised site plan for the Development which
reasonably requires the relocation of turn -lane right -of -way
indentations into the Property, the City may condition its approval
of such revised site plan on the dedication of such new right -of-
way indentations. Nothing herein shall be construed to limit the
City's power of eminent domain. The City agrees, upon application
by the Developer, to allow for a resubdivision of the Property or
the modification of the boundary lines between proposed phases or
parcels of development pursuant to a lot line adjustment, provided
Developer complies with the Subdivision Map Act and City procedures
adopted pursuant to that Act. The City agrees not to impose any new
or additional requirements or conditions upon any such
resubdivision or lot line adjustment, other than those imposed upon
7
the Map, except to the extent that such new requirements or
conditions are necessitated by the new location of the lot lines
because of Building Code requirements or other requirements of law.
9. Development of the Property; Vesting of Development Rights.
(a) General Statement.
Notwithstanding any subsequent changes to the General
Plan, the Plan, the Redevelopment Plan, the Zoning of the Property,
or any other change affecting the development or use of the
Property, including without limitation any changes imposed by any
initiative approved by the voters, and except as specifically set
forth herein, Developer shall have the vested right to proceed with
the development of the Property in accordance with the Approvals
and all Existing Development Regulations, as defined below. As a
material inducement to the Developer and its lenders to continue
its diligence to promote the development of the Property, the City
desires to cause all development rights which may be required to
develop the Property to completion with buildings and related
improvements consistent with the Approvals, to be deemed vested as
of the date of this Development Agreement and to be free of all
discretionary rights of the City, except as herein provided.
Notwithstanding the foregoing, nothing set forth in this Develop-
ment Agreement shall be deemed to require Developer to complete the
Development.
(b) Existing Development Regulations.
In accordance with the terms of Government Code Section
65866, the City and the Developer agree that the ordinances, rules,
regulations and official policies of the City, including the Plan
(collectively, the "Existing Development Regulations") in effect as
of the date of this Development Agreement governing the design,
density, height, permitted land uses, timing and phasing, and other
improvement and construction standards applicable to the Develop-
ment shall govern during the Term of this Development Agreement.
Except as otherwise provided in this Development Agreement, without
Developer's written approval, no amendment to or revision of, or
addition to any of the Existing Development Regulations or the
Plan, whether adopted or approved by the City Council or any
office, board, commission or other Agency of the City, or by the
people of the City through charter amendment or initiative measure,
shall be effective or enforceable by the City with respect to the
Development, its design, grading, construction, remodeling, use or
occupancy, or schedule of development.
(c) Exclusion from Definition of Existing Development
egulations.
As used herein, Existing Development Regulations shall not
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include municipal laws and regulations which do not interfere with
Developer's vested rights to develop and use the Property in
accordance with the Approvals. Developer and its successors and
assigns and all persons and entities in occupation of any portion
of the Property shall comply with such non - conflicting laws and
regulations as may from time to time be enacted or amended
hereafter. Specifically, but without limitation on the foregoing,
such non - conflicting laws and regulations include the following:
(1) Taxes, assessments, fees and charges, except as
otherwise specifically provided in this Development Agreement;
(2) Building, electrical, mechanical, fire and similar
codes based upon uniform codes incorporated by reference into
the Santa Ana Municipal Code;
(3) Laws, including zoning code provisions, which
regulate the manner in which business activities may be
conducted or which prohibit any particular type of business
activity on a city -wide basis; and
(4) Procedural rules of general City -wide application.
(d) Subsequent "Slow /No Growth" Measures.
In furtherance of clauses (a) and (b), above, the City
and Developer specifically agree that any subsequently enacted
initiatives, referendums, or amendments to the City's General Plan
and /or Zoning Code which contain "slow /no growth" measures or which
by their terms are intended to, or by operation have such effect,
including but not limited to measures governing the timing or
sequence of growth, shall have no application to the Development.
Notwithstanding any such measures, the mitigation measures required
for the Development are limited to those established by this
Development Agreement.
(e) Rent Control and condominium Conversion (office).
During the Term of this Development Agreement, any ordinance,
regulation, or condition which would (i) directly or indirectly
artificially control or otherwise restrict commercial or office
rents charged within the Development or (ii) apply directly or
indirectly to the conversion of office rental units to office
condominiums within the Development, shall not be applicable to the
Development.
lo. Contributions by Developer.
In consideration of the City entering into this Develop-
ment Agreement, Developer has agreed to provide certain contribu-
tions with respect to improving the Property and the general area
0
surrounding the Property which contributions will have an overall
benefit to the entire City of Santa Ana. These contributions exceed
the level of mitigation otherwise required by the EIR and are being
provided in exchange for the benefits provided by the City to
Developer under this Development Agreement. These contributions are
as follows:
(a) Monorail or other Fixed- Guideway Rail Transit Station.
Developer agrees to grant an easement for the purpose of
locating a future monorail or other fixed - guideway rail transit
station on the Property, such grant to be to either the City or to
such entity as may have jurisdiction over the passenger stations
serving such a future fixed - guideway transit system and to be
without cost to the grantee, provided the following conditions are
satisfied:
(1) The development of the fixed - guideway transit system has
progressed to the stage where the construction of
stations servicing the system is appropriate.
(2) The fixed - guideway transit system is so designed as to be
serviceable by a transit station on the Property.
(3) A suitable site for the construction of a transit station
in a timely manner and without excessive cost (in
comparison with possible alternative locations) exists on
the Property.
(4) Mutually acceptable easement and construction agreements
pertaining to a transit station on the Property are
entered into between the Developer and the City or other
entity having jurisdiction over transit stations servic-
ing the fixed - guideway system.
(b) Live Theater.
The Developer will construct a theater designed for live
theatrical perfomances. The live performance theater may be
provided as a component of the 1,500 -seat cinema complex (in which
case the theater may be (i) dual use, allowing for both cinema use
and live theatrical performances, or (ii) dedicated solely to live
theatrical performances) or, in the alternative, the live perfor-
mance theater may be provided in a stand -alone structure utilized
solely for live theatrical performances. In any case, the cinema
complex and the live performance theater shall contain no more than
1,500 seats in the aggregate. The minimum contribution required by
Developer with respect to the live performance theater, including
physical improvements necessary to accommodate live performance
such as the installation of special lighting, stage facilities,
seating, showers, dressing rooms, offices, storage, and elevators
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for the transportation of stage equipment, shall be $1,000,000.
Any expenditure of funds beyond $1,000,000 shall be at the
discretion of the Developer. The live performance theater shall
satisfy the following standards:
(1) It shall have its own main entrance doors with a foyer
inside the main entrance.
(2) It shall have not less than 150 nor more than 300 seats.
(3) The seats shall be oriented across the length rather than
the narrower width of the theater space.
(4) If a dual -use theater is constructed, it shall have a
retractable cinema screen at the rear of a partial thrust
stage.
(5) It shall have side stage access from small holding areas.
(6) It shall have dressing rooms which include restrooms.
(7) It shall have a prop storage room.
(8) It shall have a basic sound and lighting system with
expansion capabilities.
No certificate of occupancy shall be issued for any nonresidential
building on the Property until construction of the live performance
theater has been completed.
The Developer shall make a good faith effort to assure that
the live performance theater shall be used for live theatrical
performances by groups affiliated with the Santa Ana Council of
Arts and Culture or such other organization of Santa Ana -based
theatrical groups as may be approved by resolution of the City
Council of the City for purposes of this Agreement, to the extent
this can be done without the payment by Developer of any rental or
operating subsidies. In this regard, it is understood that all
tenants of the live performance theater will be expected to pay
fair market rent on a net lease basis plus all taxes and operating
costs. As used herein, "theatrical" is not limited to plays, but
also includes other live, on -stage performances.
(c) Santiago Park Improvements.
The Developer shall contribute a maximum of Three Million
Two Hundred Thirty Thousand Dollars ($3,230,000) to the City for
the improvement of Santiago Park. The City shall work with the
community residents in determining the appropriate allocation of
these funds for necessary or desirable park improvements, provided
that all funds must be expended on park improvements (but not
operation and maintenance) . Subject to approval by the City after
11
consultation with community residents, the anticipated park
improvements may include, but are not limited to: installation of
an automatic irrigation system; renovation of the existing
landscaping; renovation of walkways, picnic facilities and
shelters; renovation of jogging course, exercise station and
signage; renovation of sand lot and play equipment; renovation of
the ball field area and backstop; provision of new and improved
park signage; improvements to the security lighting at the key
locations; installation of pedestrian improvements; facilitation of
access to the Property from Santiago Park; and installation and
restoration of a creek recirculation system.
The contribution towards Santiago Park shall be paid at the
rate of one dollar sixty -four cents ($1.64) per square foot for
each square foot of development. This corresponds to One Million
Four Hundred Seventy Two Thousand Eight Hundred Eighty Dollars
($1,472,880) for Phase I, and an additional One Million Seven Hun-
dred Fifty Seven Thousand One Hundred Twenty Dollars ($1,757,120)
for Phase II, assuming Phase II is built to its maximum allowable
development. As used herein, "Phase I" and "Phase II" refer to the
phases set forth in Exhibit C of this Agreement. Payments shall be
made as follows:
(a) For Phase I: Payments shall be made as a condition to
the issuance of each building permit and shall be based
on the square footage of the development for which the
permit is issued.
(b) For Phase II: Payments shall be due in the same manner
as for Phase I, except that a payment or payments in the
total amount of $1,250,000 must be made as a condition to
the issuance of the first certificate of occupancy. To
the extent such payment exceeds the amount due based on
the square footage of the development for which building
permits have been issued, it shall be a nonrefundable
credit on the payments that would otherwise be due for
the issuance of future building permits.
The City agrees that, as to each payment made by Developer
pursuant to this Subsection (c), the City shall expend such money
for Santiago Park improvements within five (5) years of receipt,
or, if it fails to do so, refund the unexpended portion to
Developer upon demand. If the City has incurred an enforceable
obligation to pay funds to a contractor for such improvements, such
funds shall be deemed expended for purposes of this section.
It is understood and agreed by the parties hereto that the
contribution made by Developer under this subsection (c) is in
addition to any tax or fee imposed by the City on residential
development for the acquisition and development of parks in the
City.
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(d) Neighborhood Traffic Mitigation.
Although the EIR prepared for the Development concludes
that there will be no adverse impact on the adjacent residential
neighborhoods commonly known as Parker Batavia, Northeast,
Northwest and Floral Park (the "Neighborhoods ") , the Developer and
the City acknowledge that existing traffic modeling methodology
cannot predict with absolute certainty that there will be no
impacts on the Neighborhoods. Accordingly, the Developer agrees as
follows:
(1) Prior to the issuance of any building permit for the
first phase of the Development, the Developer will
deposit with the City $20,000, to be used by the City for
a traffic study or studies by city staff or by a traffic
consultant or consultants selected by the City, which
study or studies will:
(i) create an "existing conditions database" describing
traffic conditions existing in the Neighborhoods
after completion of the I -5 Improvements but before
initial occupancy of the first phase;
(ii) entail average daily trip counts, turning movement
counts, speed surveys and license plate surveys, as
determined appropriate by the City; and
(iii) at the City's election, evaluate the effectiveness
and continued need for the traffic control measures
implemented as part of the I -5 Improvements.
Any portion of the amount of the said $20,000 deposit
which is not expended for the abovesaid study shall be
refunded to the Developer.
(2) Prior to the issuance of the first building permit for
any nonresidential building in Phase I of the
Development, the Developer agrees to deposit with the
City $50,000, to be used by the City for an additional
traffic study or studies by City staff or by a traffic
consultant or consultants selected by the City, which
study or studies will identify traffic impacts in the
Neighborhoods, if any, attributable to Phase I of the
Development. Any portion of the said $50,000 deposit
which is not expended for Phase I traffic studies will be
refunded to the Developer.
(3) Prior to the issuance of a building permit for any
building in Phase II of the Development, the Developer
agrees to deposit with the City an additional $50,000, to
be used by the City for an additional traffic study or
studies by City staff or by a traffic consultant or
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consultants selected by the City, which study will
identify additional traffic impacts in the Neighborhoods,
if any, attributable to development occurring during
Phase II of the Development.
If any traffic study done pursuant to paragraphs (2) or (3)
identifies traffic intrusion into the Neighborhoods attributable to
the Development, the study shall also develop suitable mitigation
measures which could alleviate the identified adverse .traffic
impacts in the Neighborhoods. With regard to any such traffic
study, Developer shall be provided the opportunity to review and
comment on the findings and recommendations contained within it
prior to any determination by the City to implement those findings
and recommendations.
The Developer agrees to contribute a maximum total amount of
$750,000 for the implementation, construction and /or completion of
the mitigation measures identified in the abovesaid studies,
subject to the following terms and conditions:
(a) Any such mitigation measure to be funded by the Developer
must be approved by the City of Santa Ana, if located in
the City of Santa Ana, or by the City of Orange, if
located within the City of Orange. Each city shall have
complete discretion to determine whether a mitigation
measure within its jurisdiction has adequate resident
support and is otherwise warranted.
(b) Any such corrective measures must be selected and
approved in accordance with subsection (a) above, not
later than the date occurring ten (10) years following
(i) the completion of Phase II of the Development, or
(ii) the end of the Term specified in Section 3 of this
Development Agreement (without regard to any termination
of this Agreement earlier than the end of said Term),
whichever first occurs.
(c) The issuance of building permits, certificates of
occupancy and /or licenses and permits necessary to
initiate and complete the construction of the Development
in accordance with the Plan shall not be in any manner
denied, delayed or conditioned due to any impact identi-
fied in the traffic studies and /or the failure of the
City or the City of Orange to agree to or implement any
corrective measures identified in the studies, provided
Developer has deposited funds as required by this
subsection.
(d) To secure its obligations hereunder, prior to the
issuance of a certificate of occupancy for the first
office building in Phase I of the Development, the
Developer shall deposit $750,000 with the City, to be
14
used solely to fund mitigation measures which have been
identified in any traffic study pursuant to this
subsection and which have been approved and agreed to in
accordance with paragraph (a) hereof.
(e) To the extent the City of Santa Ana has not agreed on how
to allocate or implement the traffic mitigation measures
identified in any study done pursuant to this subsection
and approved such mitigation measures in accordance with
paragraph (a) hereinabove within the time period
specified in paragraph (b) hereinabove, the City shall
promptly refund any of the deposit made by developer
pursuant to paragraph (d) in excess of amounts which have
been allocated and.approved.
(f) The use of the Developer's deposit to fund mitigation
measures in the City of Orange shall be by agreement
between the cities of Santa Ana and Orange, using funds
deposited with the City of Santa Ana by the Developer
pursuant to this subsection. The City of Santa Ana shall
be responsible for assuring that use of such funds in the
City of Orange is subject to paragraph (e) hereinabove
and shall be liable to Developer for the refund due
Developer under that paragraph regardless of any transfer
of any portion of such funds from the City of Santa Ana
to the City of Orange. It is understood and agreed that
$250,000 of the deposit made by Developer pursuant to
paragraph (d) may be used for traffic mitigation measures
located in either the City of Santa Ana or the City.of
Orange, and that the balance of the deposit made pursuant
to paragraph (d) shall be used solely for mitigation
measures located in the City of Santa Ana.
The City shall immediately upon receipt of any payment from
Developer pursuant to this section, place the funds paid in a trust
fund account established for the purpose for which the payment was
made. The City shall invest such funds in such investments as it
shall, in its sole discretion, determine. All investment earnings
on funds in the trust fund account shall accrue to that account and
be subject to the same limitations as the principal amount of the
desposit. City agrees to maintain separate accounting records for
the use of the monies paid to it hereunder.
11. EIR Mitigation Measures.
(a) Developer's obligations.
(1). Owens Drive Improvements and Sewer obligations.
The Developer's obligations with respect to the widening
of Owens Drive and with respect to the installation of new sewer
lines serving the Development shall be as set forth in that certain
15
Construction Funding Agreement, dated April 6, 1992, between the
City and the Developer; provided, however, 'that:
(i) In the event funds deposited with the City for the
Developer's share of the cost of the Owens Drive widening are
refunded to the Developer pursuant to the said Construction Funding
Agreement, the Development shall not proceed until alternative
provision for the Developer's participation in the costs of the
widening of Owens Drive is agreed upon in writing by the City and
the Developer.
(ii) In the event funds deposited with the City for the
Developer's share of the cost of the "Memory Lane Interceptor Sewer
Project" are refunded to the Developer pursuant to the said
Construction Funding Agreement, the Development shall not proceed
until alternative provision for the Developer's participation in
the costs of the installation of new sewer improvements serving the
Development is agreed upon in writing by the City and the Develop-
er.
It is stipulated and agreed by the parties hereto that
the Developer's payment of the Developer's share of the cost of the
"Memory Lane Interceptor Sewer Project" pursuant to the said
Construction Funding Agreement is the sole and complete charge to
be imposed on the Developer for sewer improvements as a condition
of construction of the Development. In particular, the Developer
shall not be required to pay the sewer connection fee established
by section 39 -53 of the Santa Ana Municipal Code or the Memory Lane
Interceptor Sewer development fee established by section 39 -82 of
the Santa Ana Municipal Code as a condition of construction of the
Development or any part thereof.
(2) Main street Improvements.
It shall be the obligation and responsibility of the
Developer to design, bid, construct certain improvements and
dedicate certain right of way easements along Main street as more
specifically described in the conditions of approval of the Map
( "Main Street Improvements ") . Developer agrees that all such
construction of the Main Street Improvements will be completed
prior to May, 1993 (except for such portion thereof as is not
located on land owned by either the Developer, the City, or the
Community Redevelopment Agency of the City of Santa Ana), or else
that the construction of the Main Street Improvements must be
delayed until following the reopening of the Main Street bridge
over the I -5 (Santa Ana) Freeway after the widening of that freeway
at that point by the State Department of Transportation. In this
regard, it is understood that the completion of the construction of
the Main Street improvements is a condition precedent to the
issuance of building permits for the Development or any portion
thereof.
Nrl
The City agrees not to issue any permit to any person other
than Developer for a bus shelter in the Main Street sidewalk
adjacent to the Property, except in either of the following
circumstances:
(a) The Developer has not installed a bus shelter, either in
the Main Street sidewalk adjacent to the Property or on
the Property adjacent to such sidewalk, within one (1)
year after the date of this Agreement;
(b) The Developer has removed the previously constructed bus
shelter as part of the reconstruction of the Main Street
sidewalk at the time Developer proceeds with Phase II of
the Development and has failed to construct a new bus
shelter, either in the Main Street sidewalk adjacent to
the Property or on the Property adjacent to such
sidewalk, at the time Developer completes such sidewalk
reconstruction.
Any bus shelter constructed by Developer in the sidewalk adjacent
to the Property shall comply with City standards for bus shelters
in the public right -of -way in effect at such time.
(3) Lawson Way Improvements.
It shall be the obligation and responsibility of
Developer to design, bid and construct certain street improvements
to and along Lawson Way as more particularly specified in the
conditions of approval of the Map ( "Lawson Way Improvements ").
Developer's construction of the Lawson Way Improvements shall occur
concurrently with the construction of Phase I development.
(4) Signalization.
The Developer shall be responsible for the design, and /or
construction and /or reconstruction of traffic signals and bear the
cost with respect thereto, all in accordance with and as more
specifically set forth in the conditions of approval of the Map.
(5) Storm Drain Improvements.
The Developer shall design, bid, construct (in coordina-
tion with the Owens Drive Improvements) and bear the expense of the
construction of storm drain improvements to handle drainage and
water runoff from the Property in accordance with and subject to
the terms of the conditions of approval of the Map. The Developer
shall receive full credit against any drainage assessment fee
imposed on the Development.
17
(6) Transportation Demand Management Program.
The Developer agrees to comply with the Transportation
Management regulations set forth in Article XIII of chapter 36 of
the Santa Ana Municipal code, including, but not limited to, the
requirement to obtain City approval of a TDM strategy plan
concurrently with City approval of the Development and the
requirement to obtain City approval of a TDM program prior to
occupancy of the first nonresidential building in the Development.
(7) Other EIR Mitigation Measures.
Subject to the provisions of subsection (c) of this
section, the Developer agrees to comply with the other mitigation
measures for the Development set forth in the final EIR and
determined feasible to implement by the City in connection with
approval of the Development. To the extent that Developer develops
the Development, Developer hereby agrees to implement the various
mitigation measures, at such phase of development as required to be
implemented by Developer in the mitigation monitoring program of
the EIR. It is understood and agreed that the costs of implement-
ing the mitigation measures are to be borne by Developer unless
otherwise stated in this Development Agreement or in the mitigation
monitoring program of the EIR, subject to such reimbursements to
Developer,if any, as are provided for in this Development Agreement
or as may be otherwise agreed to by the city.
(b) City's Obligations.
Subject to the provisions of paragraph (1) of subsection
(a) of this section, the City's obligations with respect to the
widening of Owens Drive and with respect to the installation of new
sewer lines serving the Development shall be as set forth in that
certain Construction Funding Agreement, dated April 6, 1992,
between the City and the Developer.
(c) Cummulative Impacts.
(1) Payment of Transportation Impact Fees.
In accordance with Santa Ana Municipal Code Section 5 -44,
which provides for the payment of transportation system improvement
development fees on an area -wide basis, the Developer agrees that
the Developer shall pay such "Transportation System Improvement
Fees." It is understood that the Transportation System Improvement
Fees which are paid in the area in which the Property is located
are administered by a joint powers agency between the cities of
Santa Ana and Orange, entitled the Transportation System Improve-
ment Authority, which was established to provide for transportation
system improvements located within, or benefitting, an area
consisting partly of territory of the City of Santa Ana and partly
of territory of the City of Orange. To the extent that bond sale
HE
revenues are allocated to the Transportation Improvement Authority
pursuant to that certain "Cooperation Agreement, City of Santa Ana
Community Facilities District No. 92 -1 (Main Street Councourse
Public Improvements)," dated September 8, 1992, between the City
and the Transportation System Improvement Authority, such alloca-
tion shall constitute the advance payment of transportation system
improvement development fees by the Developer for purposes of this
Agreement in accordance with the said Cooperation Agreement.
(2) Use of Transportation Impact Fees.
It is understood that the costs of implementation of the
cumulative mitigation measures which have been identified in the
EIR for the Development are to be paid by Transportation System
Improvement fees which are paid by Developer and by developers of
other development projects which are within the area which is the
responsibility and jurisdiction of the Transportation System
Improvement Authority, a joint powers agency of the City of Santa
Ana and the City of Orange. In the event the regional public
improvements contemplated as cumulative mitigation measures in the
EIR are not completed, the City agrees that it will not withhold or
delay the processing or granting of any applications, permits or
approvals, including without limitation building permits or
certificates of occupancy, so long as the Developer has otherwise
satisfied its obligations under this Development Agreement as they
relate to the particular portion of the Development for which the
application, permits or approvals are being sought.
(d) Residential density limitation.
In order to assure that the residential units included in the
Development do not become so densely populated as to impose an
unreasonable burden on the public infrastructure in the area of the
Development, Developer agrees to assure that the Covenants,
Conditions, and Restrictions pertaining to occupancy of such dwel-
ling units contain a standard limiting the number of persons who
are allowed to occupy each such dwelling unit at any given time.
Such standard shall not be less restrictive than the following:
for the first two (2) occupants of any dwelling unit, there shall
be at least one hundred fifty (150) square feet of net floor space;
there shall be at least one hundred (100) square feet of net floor
space for every additional occupant thereafter; with fractional
quotients to be raised to the next highest integer. As used
herein, "net floor space" means the total number of square feet of
floor space in a dwelling unit based upon that dwelling unit's
interior dimensions, excluding stairwells, halls, closets,
bathrooms, kitchens and garages.
12. Municipal Financing.
It is anticipated that the cost of some or all of the
public infrastructure improvements which are to be constructed in
19
connection with the Development will be financed through one or
more Municipal Financing(s) . For purposes of this Development
Agreement, a "Municipal Financing" shall mean a sale of municipal
bonds secured by special taxes pursuant to the Mello -Roos Facili-
ties Act of 1982, being Chapter 2.5 of Division 2 of Title V of the
California Government Code, commencing at Section 53311 thereof.
If, as anticipated, the City does establish a Community Facilities
District consisting of the Property pursuant to said Act, City
hereby agrees to use its best efforts to sponsor the issuance of
one more Municipal Financing(s) to assist in the completion and
installation of such public infrastructure improvements unless the
Developer and the City mutually agree to not issue such Municipal
Financing(s). In the event the City shall be responsible for
completing one or more portions of such improvements, City agrees
to act promptly to so complete such improvements in order to avoid
delays to the Development. It is anticipated that notwithstanding
any Municipal Financing(s), the initial cost of the installation of
the required public improvements may be borne in part by Developer.
13. Subsequent Environmental Review.
In exercising its legislative discretion to enter into
this Development Agreement and to commit the City to the completion
of the Development, the City has reviewed and considered the
potential adverse environmental impacts related to all aspects of
the contemplated project, including, without limitation, the
potential demands the Development will make on local and regional
streets, highways, parks and recreation areas, water capacity and
water lines, sewer capacity and sewer lines, flood and storm drain
systems, and energy conservation, and the effect on school
capacity, traffic, pedestrian safety, noise and air quality
impacts. The City has further reviewed and considered from a
variety of perspectives, and has analyzed pursuant to a variety of
assumptions, the projected future regional and cumulative environ-
mental demands that will compete with the Development for available
capacities and cumulatively add to potential adverse impacts. In
so doing, the City has considered among other things, the possibil-
ities that:
(a) Federal, local, regional and state plans, if
any, for provision of new infrastructure systems or expansion
of existing infrastructure systems may be delayed, modified or
abandoned;
(b) The types, intensities, and amount of future
regional development may exceed or otherwise be different from
that currently being planned by the City and other local
agencies; and
(c) Demands generated by the Development and
otherwise generated in the region on infrastructure and
utility improvements to be constructed as a part of the
20
Development may exceed in either the short run or the long run
the allocated capacities for such demands.
After assessing these and other potential adverse
environmental impacts associated with the development of the
Property, the City has imposed mitigation measures through the EIR,
the subdivision review process, and this Development Agreement to
the fullest extent the City considers feasible and necessary. The
City has determined that phased completion of the Development in
the manner contemplated will.itself provide the mitigation measures
needed to contribute to alleviate short run and long run potential
adverse environmental impacts, and that the public benefits of the
Development override any potential adverse environmental impacts
which may arise during the development period; therefore, the City
agrees that, except as otherwise required by California Public
Resources Code Section 21166, no subsequent or supplemental
environmental impact report shall be required by the City for the
subsequent discretionary approvals which are a part of the entire
Project contemplated by this Development Agreement.
14. Assignment.
Developer (including the owner of any Transferred
Property (as defined below) ) shall have the right from time to time
and on such number of occasions as it may choose, to sell, assign,
or transfer ( "Transfer ") all of its interest in the Property, or
any portion thereof, along with all of its right, title and
interest in and to this Development Agreement as applicable to the
Property, or the portion thereof which is the subject of the
Transfer ( "Transferred Property ") to any person, firm or corpora-
tion ( "Transferee ") at any time during the term of this Development
Agreement without the consent of City. Nothing herein shall be
construed to allow the Developer to transfer a portion of the
Property is such a manner as to deprive any building or building
site of its necessary parking or access rights. Developer's rights
and obligations hereunder shall run with the land, and shall be
binding upon and inure to the benefit of the Property and each
portion thereof, provided that upon a Transfer, Developer and the
Transferee shall enter into and record an Assignment and Assumption
Agreement, setting forth the executory mitigation measures,
exactions and conditions, if any, associated with the Transferred
Property ( "Transferred Property Exactions and Conditions ") and
pursuant to which the Developer shall assign.and the Transferee
shall assume the Transferred Property Exactions and Conditions.
The City shall be furnished with a recorded copy of such Assignment
and Assumption Agreement and from and after the effective date of
such Assignment and Assumption Agreement, the Developer shall cease
to have any liability or responsibility with respect to the
Transferred Property Exactions and Conditions. All executory
exactions or conditions which are not part of the Transferred
Property Exactions and Conditions shall remain with the balance of
the Property.
21
Subsequent to a Transfer of any separate legal parcel
within the Property to a Transferee, no default by Developer
hereunder with respect to the balance of the Property shall
constitute a default by such Transferee with respect to the
Transferred Property, and no default by such Transferee (or any
successor or assigns of such Transferee). with respect to the
Transferred Property shall constitute a default hereunder by
Developer with respect to the balance of the Property. After the
effective date of an Assignment and Assumption Agreement, the party
then owning the Transferred Property shall have full authority
hereunder to deal directly with the City with regard to all matters
relating to the Transferred Property with respect to the Develop-
ment Agreement or otherwise, including but not limited to, entering
into any agreement or modification of this Development Agreement as
may be mutually approved by the City without the necessity to
obtain any consent or authorization from the owner of any other
parcel(s) within the Property, provided, however, that no such
amendment shall apply to any other parcel(s) within the Property
without the approval or consent of the owner(s) thereof. Wherever
the term "Developer" is used herein, such term shall also include
any assignee of, or successor to, the interest of Orient Corpora-
tion of America, Inc., a California corporation, in the Property or
the owner of any Transferred Property which has executed an
Assignment and Assumption Agreement with respect to the Transferred
Property.
Notwithstanding the foregoing, whenever this Development
Agreement or the Approvals impose conditions precedent to the
development of the Property beyond a specified limit, development
of the Property beyond those limits shall not proceed until such
conditions have been satisfied, regardless of any complete or
partial transfer of responsibilities for the performance of such
conditions pursuant to this Section.
Also, in the event funds are deposited with the City pursuant
to this Development Agreement and the City thereafter becomes
obligated to make a whole or partial refund of such funds, such
refund shall be due to the person or entity that made the deposit
unless a written assignment of such right to another person or
entity, signed by the person or entity making such deposit and
making specific reference to such deposit, is delivered to the
City, regardless of any change in ownership of the Property or any
part thereof.
15. Periodic Review of Compliance.
In accordance with Government Code Section 65865.1, the
City shall review this Development Agreement at least once each
calendar year hereafter. At such periodic reviews, Developer must
demonstrate its good faith compliance with the terms of this
Development Agreement. Developer agrees to furnish such evidence
of good faith compliance as the City, in the reasonable exercise of
22
its discretion and after reasonable notice to Developer, may
require. Developer shall be deemed to be in good faith compliance
with this Development Agreement if the City is not entitled by the
terms and provisions of this Development Agreement to terminate
this Development Agreement. A failure of the City to timely
conduct a periodic review pursuant to this Section 15 shall not in
any manner constitute a default by the City or the Developer
hereunder or invalidate this Development Agreement or diminish,
impede, or abrogate the rights and privileges of either party or
its successors and assigns hereunder.
16. Amendment or Cancellation.
This Development Agreement may be amended or canceled in
whole or in part only by mutual consent of the parties and in the
manner provided in Government Code Sections 65866, 65867 and
65867.5.
17. Supersession of Development Agreement by changes in State or
Federal Law.
. In the event that State or Federal laws or regulations
enacted after this Development Agreement have been entered into or
the action or inaction of any other affected governmental jurisdic-
tion prevents or precludes compliance with one or more provisions
of this Development Agreement so that required changes in plans,
maps or permits need to be approved by the City, the parties shall:
(a) Provide the other party with written notice of
such State or Federal restriction, provide a copy of such
regulation or policy as a statement of conflict for the
provisions of this Development Agreement; and
(b) Promptly meet and confer with the other party
in a good faith and make a reasonable attempt to modify or
suspend this Development Agreement to comply with such federal
or State law or regulation. Thereafter, regardless of whether
the parties reach agreement on the effect of such Federal or
State law regulation upon this Development Agreement, the
matter shall be scheduled, for a hearing before the City
Council, upon thirty (30) days notice, for the purposes of
determining the exact modification or suspension which is
required by such Federal or State law or regulation.
18.. Enforced Delay and Extension of Times of Performance.
In addition to specific provisions of this Development
Agreement, performance by either party hereunder shall not be
deemed to be in default where delays or defaults are demonstrated
to be due to acts of God, war, acts or omissions of third parties
which are not a party to this Development Agreement, including but
not limited to, other governmental agencies, or other causes beyond
23
the reasonable control of Developer. Furthermore, performance by
either party will be excused if the failure to perform results from
an act or omission of the other party in breach of this Development
Agreement. (The foregoing references in the previous two sentences
are collectively referred to as a "Cause of Delay "). An extension
of time in writing for any such Cause of Delay shall be granted for
the period of the delay which results from such Cause of Delay or
longer as mutually agreed upon, which period shall commence to run
from the time of commencement of such Cause of Delay.
19. Notices.
Any notice or instrument required to be given or
delivered to either party to the Development Agreement may be given
or delivered by depositing the same in the United States mail,
certified mail, postage prepaid, addressed to:
City: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
Attention: City Manager
Developer: Orient Corporation of America, Inc.
c/o Shimizu America Corporation
1055 West 7th Street, Suite 1800
Los Angeles, California 90017
Attention: Michael A. Cutri
With copy to: Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071
Attention: Russell L. Johnson
Notice of a change of address shall be delivered in the
same manner as any other notice provided herein, and shall be
effective three days after mailing by the above - described proce-
dure.
20. Default and Remedies.
(a) Notwithstanding any provision of this Development
Agreement to the contrary, Developer shall not be deemed to be in
default under this Development Agreement, and the City may not
terminate Developer's rights under this Development Agreement
unless the city Council of the City finds and determines, on the
basis of substantial evidence, that Developer has not complied in
good faith with one or more of the material terms or conditions of
this Development Agreement and the City shall have first delivered
a written notice of any alleged default to Developer, which notice
shall set forth with specificity the nature of such alleged default
and the manner in which said default may be satisfactorily cured.
24
(b) The City shall be deemed to be in default under this
Agreement, upon the occurrence of one or more of the following
events:
(i) The imposition by the city upon Developer of
any ordinance, rule, regulation, policy or moratorium in
conflict with Existing Development Regulations or the terms of
this Development Agreement. The City shall not be deemed to be
in default by reason of subsequent change of laws, rules,
regulations, or policies of another local agency or governmen-
tal entity not created or controlled by City which prevents or
precludes compliance by City or Developer with this Develop-
ment Agreement; the City agrees not to initiate or promote any
such changes without Developer's express written consent.
(ii) The failure by the City to perform any covenant
or obligation required by this Development Agreement in the
time and manner set forth herein, including, without limita-
tion, completing the public improvements required to be
constructed by the City as set forth above in Section 11(a).
(c) Subject to extensions of time by mutual consent in
writing or as set forth in Section 18 above, if a default as
defined in subsection (a) or (b) ,above, As not cured by the
defaulting party within ninety (90) days of service of a notice of
default, or with respect to defaults which cannot be cured within
such period, the defaulting party. fails to commence to cure the
default within thirty (30) days after service of the notice of
default, or thereafter fails to diligently pursue the cure of such
default until completion, the non - defaulting party may terminate
the defaulting party's rights under this Development Agreement. In
the event of a default by either party which is not cured within
the time prescribed hereinabove, the non - defaulting party may
undertake one or more of the following remedies:
(i) Terminate this Development Agreement by written
notice stating the grounds for such action; or
(ii) Institute an action for specific performance of
this Development Agreement, it being expressly agreed that, in
the event of a breach of this Development Agreement, irrepara-
ble harm is likely to occur to the nonbreaching party and
damages are not an available remedy.
(d) In no event shall either party be entitled to
damages against the other party based on the other party's default
under this Agreement.
21. Estoppel Certificate.
Either party may, at any time, and from time to time,
deliver written notice to the other party requesting such party to
25
certify in writing that, to the knowledge of the certifying party,
(i) this Development Agreement is in full force and effect and.a
binding obligation of the parties, (ii) this Development Agreement
has not been amended or modified, and if so amended, identifying
the amendments, and (iii) the requesting party is not in default in
the performance of its obligations under this Development Agree-
ment, or if in default, to describe therein the nature and amount
of any such defaults. The party receiving a request hereunder shall
execute and return such certificate w "thin ten days following the
receipt thereof. The City acknowledges that a certificate hereunder
may be relied upon by transferees and mortgagees of Developer.
22. Recordation of Agreement.
This Development Agreement and any amendment and
cancellation hereof shall be recorded in the Official Records of
the County of Orange by the Clerk of the City within the period
required by Section 54868.5 of the Government Code.
23. Severability.
If any term, provision, condition, or covenant of this
Development Agreement, or the application thereof to any party or
circumstances, shall to any extent be held invalid or unenforce-
able, the remainder of the instrument, or the application of such
term, 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 each term and
provision of this Development Agreement shall be valid and
enforceable to the fullest extent permitted by law.
24. Notice of Default to Mortgage, Deed of Trust or Other Security
Interest Holders Right to Cure.
Whenever the City shall deliver any notice or demand to
the Developer with respect to any breach or default by the
Developer, the City shall at the same time deliver to each holder
of record of any mortgage, deed of trust or other security interest
and the lessor under a lease -back or grantee under any other
conveyance affecting the Property (individually each of the
foregoing are referred to as a "Financer ") a copy of such notice or
demand, providing that the Financer has given prior written notice
of its name and address to the City. Each Financer shall (insofar
as the rights. of the City are concerned) have the right at its
option within ninety (90) days after the receipt of the notice, to
cure or remedy or commence to cure or remedy any such default and
to add the cost thereof to the security interest debt and the lien
of its security interest or to the obligations of. the lessee under
any lease -back or of the grantor under any other conveyance for
financing. If such default cannot be cured within such sixty (60)
day period, the Financer shall have such additional period as may
be reasonably required within which to cure same, provided that the
26
Financer shall have delivered written notice to the City of its
intention to cure and shall have commenced to cure such default
within sixty (60) days, and shall thereafter diligently prosecute
such cure to completion.
The City shall not terminate this Development Agreement
by reason of the Developer's default without first serving the
Financer with notice of default and allowing the Financer that
period to cure same as specified in the first paragraph above, and
such further period to foreclose or otherwise acquire the Property
so long as the Financer notifies the City that it will commence
foreclosure or other proceedings to acquire the Property, and
thereafter diligently prosecutes same to completion. If a default
by the Developer shall be cured by the Financer, the Financer shall
not be obligated to continue any foreclosure, possession or other
proceedings which it may have instituted. Should the Financer or
any party claiming through the Financer succeed to the interest of
the Developer in the Property,, or any portion thereof, the City
shall recognize such party as the Developer and shall not disturb
its use and enjoyment of the Property pursuant to this Development
Agreement, provided that such party cures any default by Developer
which may be satisfied by the payment of money, and performs all of
the obligations of Developer set forth in this Development
Agreement which accrue thereafter.
Breach of any of the covenants or restrictions contained
in this Development Agreement shall not defeat or render invalid
the lien of any mortgage or deed of trust made in good faith and
for value as to the Property or any part thereof or interest
therein, whether or not said mortgage or deed of trust is subordi-
nated to this Development Agreement; but unless otherwise herein
provided, the terms, conditions, covenants, restrictions and
reservations of this Development Agreement shall be binding and
effective against the holder of any such mortgage or deed of trust
and any owner of the Property, or any part thereof, whose title
thereto is acquired by foreclosure, trustee's sale, or otherwise.
25. Cooperation in the Event of Legal Challenge.
In the event of any legal action instituted by any third
party challenging the validity or enforceability of any provision
of this Development Agreement, the Plan, or any of the other
Approvals for the Development, as the same may be amended from time
to time, or the adequacy of the EIR, the parties hereby agree to
cooperate in defending said action as set forth in this Section 25.
The city shall have the right, but not the obligation, to
defend any such action; provided, that without the Developer's (and
its successors' and assigns') prior written consent, which consent
shall not be unreasonably withheld, city shall not enter into any
settlement or compromise of any claim which has the effect,
directly or indirectly, of prohibiting, preventing, delaying, or
27
further conditioning or impairing the Developer's development, use,
or maintenance of any portion of the Property or impairing any of
the Developer's rights hereunder. In addition, City shall provide
reasonable assistance to Developer in defending any such action,
such assistance to include (i) making available, upon reasonable
notice and compensation, City officials and employees who are or
may be witnesses in such action, and (ii) provision of other
information within the custody or control of City that is relevant
to the subject matter of the action and capable of disclosure, upon
payment or appropriate arrangements for payment of the costs of
duplicating documents.
Developer and its successors and assigns shall have the
right but not the obligation to defend any such action. In this
regard, Developer's (and its successors' and assigns') right to
defend shall include the right to hire attorneys and experts
necessary to defend, the right to process and settle reasonable
claims, the right to enter into reasonable settlement agreements
and pay amounts as required by the terms of such settlement
agreements, and the right to pay any judgments assessed against
Developer or City. Notwithstanding the foregoing, Developer and
its successors and assigns shall not settle or compromise any claim
or action filed against City without City's prior consent.
Developer shall indemnify and hold harmless City from and
against any claims, losses, liabilities, or damages assessed or
awarded against either of them by way of judgment, settlement, or
stipulation arising out of this Development Agreement and /or the
Approvals.
26. Enforceability of Agreement.
The City and Developer and its successors and assigns
agree that unless this Development Agreement is amended or
terminated pursuant to the provisions of this Development Agree-
ment, this Development Agreement shall be enforceable by either
party hereto notwithstanding any change hereafter in any applicable
General Plan, redevelopment plan, specific plan or zoning ordi-
nance.
27. Cooperation; Execution of Documents.
Each party shall execute and deliver to the other all
such other further instruments and documents as may be necessary to
carry out this Development Agreement in order to provide and secure
to the other party the full and complete enjoyment of its rights
and privileges hereunder.
28. Justifiable Reliance.
City and Developer and its successors and assigns each
acknowledge that, in investing its time, money, and expertise for
M
the development of the Project, it will be reasonably and justifi-
ably relying upon the other party's covenants contained in this
Development Agreement.
City further acknowledges that the Development is and
shall be considered a single integrated development project, and
that the Developer's (and its successors' and assigns') development
of each component of the Development is dependent upon its right to
complete and occupy each other component, and that the economic
viability of each component of the Development is and shall be
dependent upon the Developer's (and its successors' and assigns')
right to complete and occupy each other component and upon the
city's full performance of its obligations under this Development
Agreement.
29. Entire Agreement; waivers.
This Development Agreement is executed in two duplicate originals,
each of which is deemed to be an original. This Development
Agreement consists of twenty -five (25) pages and four (4) exhibits
which constitute the entire understanding and agreement of the
parties. This Development Agreement integrates all of the terms
and conditions mentioned herein or incidental hereto, and super-
sedes all negotiations or previous agreements between the parties
with respect to all or any part of the subject matter hereof,
excepting only the other agreements referenced herein.
All waivers of the provisions of this Development
Agreement shall be in writing and signed by the appropriate
authorities of the City and Developer and its successors and
assigns, and all amendments hereto must be in writing and signed by
the appropriate authorities of the City and Developer and its
successors and assigns.
30. Effective Date.
The Effective Date of this Development Agreement shall be
the date that the City Council ordinance adopting this Development
Agreement becomes effective, which date shall be thirty (30) days
after the City Council meeting at which such ordinance is adopted.
31. Rules of Construction; Section Headings.
The singular includes the plural and the masculine gender
includes the feminine. Section headings used in this Development
Agreement are for convenience of reference only and shall not
constitute a part of this Development Agreement for any other
purpose or affect the construction of this Development Agreement.
32. Time of the Essence.
Time is of the essence regarding each provision of this
29
Development Agreement of which time is an element.
33. Counterparts.
This Development Agreement has been executed in one or
more counterparts each of which has been deemed an original, but
all of which constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Development Agreement as of the day and year first above written.
ATTEST:
of th Council
APPROVED AS TO FORM:
a' -
Edward J. oo er
City Attorney
`4 City mwl9 pr
0
6M
CITY OF SANTA ANA
b
D niel H. Y ng
Mayor
ORIENT CORPORATION OF AMERICA,
INC.
by
ALL-P.LRPOSE • .-
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State of to ^� ^19�,,� a CAPACITY CLAIMED BY SIGNER
County of�� ❑ INDIVIDUAL(S)
1 _ EVu.vRPORATE
On � 22�j before me, OFFICER(S)
DATE _ NAME, TITLE OF FICER- E.G., "JANE D E, OTARY PUBLIC" TITLES)
personally appeared
❑ personally known tome
/ c NAME(S) OF SIGNER(S)
OR - Droved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is /are
subscribed to the within instrument and ac-
y.� knowledged to me that he /she /they executed
J Qar� AGLADYSRUIZ the same in his /her /their authorized
COMM.#9153929 z capacity(ies), and that by his /her /their
Notary PGECCaIifTY si natures on the instrument the ersons ORANGE COUNTY g O person(s),
),
My comm. expires JAN 2E,1998 ortheentityupon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
❑ PARTNER(S)
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ SUBSCRIBING WITNESS
❑ GUARDIAN /CONSERVATOR
❑ OTHER:
VER IS REPRESENTING:
OF PERSON(S) OR ENTITY(IES)
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document.
THIS CERTIFICATE Title or Type of Document �py}{IN f p_) uy Jv
MUST BE ATTACHED t o Do
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TO THE DOCUMENT Number of Pages Dacumen W4a�9_v_�(_,
DESCRIBED AT RIGHT: Signer(s) Other Than Named Above --
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of Orange
On 6 - 9- 93 before me,
DATE AIDA E.
personally appeared �e, : � Y
NAME(S) OF SIGN¢ SI
® personally known to me - OR -
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FEE- ORGANIZED
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DEPUTY CLERK QP THE COUNCIL
❑ proved to me on the basis of satisfactory evidence
to be the person whose name is /are
subscribed to the within instrument and ae-
knowledgedto me that he /she /tom executed the
same in his /her /their authorized capacity ies ,
and that by hislher/ ltr signatureo, on the
instrument the person(s), or the entity upon
behalf of which the persons) acted, executed the
instrument.
WITNESS my hand and official seal.
SIGIJATURE CP DEP 'Y CLERK
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Legal Description
All that certain real property in the State of California, County of Orange,
City of Santa Ana, described as follows:
Parcel 1
That portion of Section 31, Township 4 South, range 9 West allotted to Abel
Stearns as described in the FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO
DE SANTA ANA, which was entered September 12, 1868 in Book B, page 410 of
JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS
ANGELES COUNTY, CALIFORNIA, described as follows:
Beginning at the Northwest corner of land formerly of G. W. Vance; running
thence North 10.50 chains to the Southeast corner of land formerly of J. M.
King; thence East 25.23 chains to the Southeast corner of said land of J. M.
King; thence South 10 chains to the Township line, and thence West along the
Township line to the point of beginning, and being in the Southwest quarter
of Section 31, Township 4 South, range 9 West, San Bernardino base and
meridian;
Excepting therefrom the East 6 acres;
Also excepting therefrom the following:
Beginning at the intersection of the East line of North Main Street,
with the South line of Section 31, Township 4 South, range 9 West,
San Bernardino base and meridian; Running thence North on the East
line of North Main Street 150.00 feet; thence East parallel to the
South line of said Section 31, 145.25 feet; thence South 150.00 feet;
thence West 145.25 feet to the point of beginning;
Also excepting a strip of land along the Southerly line of said land
as granted to County of Orange by deed recorded December 9, 1987, in
Book 915, page 422, records of Orange County, described as follows:
Beginning at the Southwest corner of that certain property described
in deed to J. A. Engel and Dora A. Engel recorded in Book 683, page
337 of official records of Orange County, California, and running
thence from said point of beginning along the Northerly city limits
of the City of Santa Ana, South 88 °39'50" West 451.82 feet to a point
in a curve, concave Southeasterly, and having a radius of 140.30
feet, a radial line from said point in said curve bears South
29 °41'40" East; thence Northeasterly along said curve, through a
central angle of 25 °59'00 ", 63.63 feet to a line tangent; thence
North 86 017120" East, along said tangent line, 392.96 feet, more or
less, to a point in the West line of the above mentioned property
described in deed to J. A. Engle and Dora Engel, which point bears
North 1 °30120" East, 33.04 feet from the point of beginning; thence
South 1°30120" West, 33.04 feet along said West line to the point of
beginning;
Together with that portion of Lot 7 of Tract No. 721, as shown on a map
recorded in Book 22, page 4 of Miscellaneous Maps, records of Orange County,
California, described as follows:
Beginning at a point in the Northerly line of said Lot 7, distant thereon
South 88 °28' West, 242.01 feet from the Northeast corner of said Lot 7, and
running thence Southwesterly along a curve concave Southeasterly and having
a radius of 250 feet, a radial line through said point of beginning bearing
South 30 °25' East, a distance of 86.39 feet to a point of reverse curve,
thence Southwesterly along said curve, concave Northwesterly and having a
radius of 203 feet, a distance of 71.05 feet, more or less, to a point which
is 104.99 feet Northeasterly, measured along said curve from the Southeast
corner of Lot 6 of said Tract No. 7211 thence; North 0 °45' East, parallel
Northerly line said Lot 7 which is distant thereon North 88 °28' East, 100.08
feet from the Northeast corner of said Lot 6; thence North 88 °28' East, along
said Northerly line 118.40 feet to the point of beginning;
Together with Lot 5 of Tract No. 721, as shown on a map recorded in Book 22,
page 4 of Miscellaneous Maps, records of Orange County, California.
Parcel 2
That portion of Lot 1 and 3 in Block A of Tract No. 315 as shown on a map
recorded in Book 14, page 49 of Miscellaneous Maps of said County, together
with that portion of Lot 7 of Tract No. 721 as shown on a map recorded in
Book 22, page 4 of Miscellaneous Maps of said County, said portions lying
Northerly of the following described line:
Beginning at a point in the Southerly line of Lot 2, Block A of Tract No.
315, distant South 89 °27'02" East, 66.00 feet from the centerline of Main
Street; thence North 1 °05'18" East, 71.00 feet Northerly from and measured at
right angles to said South line; thence parallel with the South line of said
Lots 1 and 3 South 89 °27'02" East, 274.27 feet to the beginning of a tangent
curve concave Northerly having a radius of 933.00 feet; thence Easterly along
said curve through a central angle of 6 °30'13" an arc length of 105.90 feet
to a point of reverse curve concave Southerly having a radius of 60.00 feet;
thence Easterly along said curve through a central angle of 13 °56'16" an arc
length of 14.60 feet; thence tangent to said curve South 82 000'59" East,
33.91 feet to the beginning of a tangent curve concave Northerly, having a
radius of 42.00 feet; thence Easterly along said curve through a central
angle of 17 °35'00" an are length of 12.89 feet to a point of compound curve,
concave Northerly, having a radius of 946.00 feet; thence Easterly along said
curve through a central angle of 1 °47'47 ", an are length of 29.66 feet;
thence Northerly 23 °48148" East, 27.78 feet; thence Northerly 74 026'48" East,
51.73 feet; thence Southerly 68 014'13" East, 21.12 feet to the beginning of
a curve concave Northerly having a radius 935.00 feet; thence Easterly along
said curve through a central angle of 1 °43'35" an arc length of 28.17 feet;
thence tangent to said curve Northerly 71 °38'39" East, 13.06 feet to the
North line of said Lot 7, Tract No. 721; thence along said North Line North
88 °48'12" East, 158.23 feet to the North line of Owens Drive as shown on map
of record of survey filed in record of Survey Book 10 page 21 records of said
County being a point in a curve concave Southeasterly having a radius of
250.00 feet; said line shall be extended Westerly, intersect the West line of
said Lot l;
Excepting therefrom that portion of said Lot 1 lying Westerly of a
line parallel with and 66.00 feet East of the centerline of Main
Street as shown on said map of Tract No. 31.5;
Also excepting therefrom that portion of said Lot 1 enclosed within
a triangular shaped area bounded Westerly by the South 25.00 feet of
said line 66.00 feet East of Main Street centerline; bounded
Southerly by the West 25.00 feet of the line first above described
having a bearing and distance of 5.89 °27'02" East, 274.27 feet; and
bounded Northeasterly by a straight line connecting the North and
East end points of said boundary lines.
Parcel 3
The Northerly 100.00 feet, together with the Southerly 50.00 feet, of that
portion of the land allotted to Abel Stearns, as described in the FINAL
DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, which was entered
September 12, 1868 in Book B, page 410 of JUDGMENTS OF THE DISTRICT COURT OF
THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA,
described as follows:
Beginning at the intersection of the East line of North Main Street, as said
East line existed on January 10, 1922, with the South line of Section 31,
Township 4 South, range 9 West, San Bernardino Meridian; thence North on the
East line of said Main Street 150.00 feet; thence East parallel to the South
line of said Section 145.25 feet; thence South 150.00 feet; thence West
145.25 feet to the point of beginning;
Excepting therefrom the Westerly 31.00 feet thereof, as granted to
the City of Santa Ana by deed recorded June 15, 1970 in Book 9316,
page 748, and recorded in Book 5299, page 389, and in Book 11097,
page 559, and in Book 11097, page 557, all of official records of
said County.
M
EXHIBIT B
MAP OF THE PROPERTY
�24
IVN
TTF
Lq
EXHIBIT C
PHASES OF DEVELOPMENT
Phase I
Phase I Commercial Total
• 32 story office tower
• Retail commercial
• Restaurant space
• Cineplex, 1,500 seats; in-
cluding dual -use theatre,
of 150 to 300 seats
• Health Club
Residential
• 64 attached single family
housing units
Phase I Totals
Phase II
Phase II Commercial Total
• 20 story office tower
• Retail space
Hotel (350 rooms)
and Conference Facility
Residential
Gross Proposed
Square Feet Parking
Minimum Maximum
694,012
771,125 3,772
548,392
609,325 --
86,580
96,200 --
8,280
9,200 --
24,660 27,400
26,100 29,000 --
0 128.000 256
694,012 899,125 4,028
(412 Temp)
0 765,985 1,090
0 321,750
0 128,760 --
0 315,475
0 299.660 758
(19 story high rise,
216 condominium units and
temporary surface parking)
Phase II Totals 0 1,065,645 1,848
Cumulative Phase I
and II Totals 694,012 1,964,770 5,464*
* Note: 412 temporary surface parking developed in Phase I will
be eliminated -in Phase II.
.11, 11.1Y1
ORDINANCE NO. NS -2193
AN ORDINANCE OF THE CITY OF SANTA ANA REZONING
CERTAIN PROPERTY LOCATED AT THE NORTHEAST
CORNER OF MAIN STREET AND OWENS DRIVE FROM THE
R1 (SINGLE- FAMILY RESIDENCE) AND C2 (GENERAL
COMMERCIAL) DISTRICTS TO THE SD (SPECIFIC
DEVELOPMENT) DISTRICT, ADOPTING SPECIFIC
DEVELOPMENT PLAN NO. 59 FOR SAID PROPERTY, AND
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF SANTA ANA AND ORIENT CORPORATION OF
AMERICA, INC., PERTAINING TO SAID PROPERTY
WHEREAS, Amendment Application No. 1055 has been filed with
the City of Santa Ana by Orient Corporation of America, Inc., to
change the zoning district designation of certain real property
located generally at the northeast corner of Main Street and Owens
Drive in the City of Santa Ana, and more specifically delineated in
Exhibit A, attached hereto and incorporated herein by reference,
from the Ri (Single- family residential) and C2 (General Commercial)
Districts to the SD (Specific Development) district, and to adopt
Specific Development Plan No. 59, in the form set forth in Exhibit
B, attached hereto and incorporated herein by reference, for said
property; and
WHEREAS, the applicant Orient Corporation of America, Inc.
Proposes to develop said property in accordance with Specific
Development Plan No. 59 and in this regard has requested to
approval of a Development Agreement with the City of Santa Ana in
the form set forth in Exhibit C, attached hereto and incorporated
herein, in accordance with sections 65864 - 65869.5 of the Government
Code of the State of California; and
WHEREAS, the Planning Commission of the City of Santa Ana held
a duly noticed public hearing on March 22, 1992, on the said
Amendment Application, Specific Development Plan, and Development
Agreement, and, based thereon, determined that the development as
Proposed therein is consistent with the general plan of the City of
Santa Ana, and, subject to certain modifications, recommended that
the City Council approve the Amendment Application, Specific
Development Plan No. 59, and Development Agreement; and
WHEREAS, prior to taking action on this ordinance, the City
Council of the City of Santa Ana has reviewed and considered the
information contained in that certain "Main Street Concourse"
environmental impact report pertaining to the development of the
abovesaid'property in accordance with amended Specific Development
1
OF.DI :ANCE NS- 2197
Pace 2
Plan No. 59 and the Development Agreement, and has certified said
environmental impact report as having been prepared in accordance
with the California Environmental Quality Act and has adopted
environmental findings regarding the project; and
WHEREAS, this Council, prior to taking action on this
ordinance, has held a duly noticed public hearing, on the said
Amendment Application, Specific Development Plan No. 59, and
Development Agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES
ORDAIN AS FOLLOWS:
1. The SD (Specific Development) district designation and
Specific Development Plan No. 59, as proposed in Amendment
Application No. 1055, and the Development Agreement are 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;
2. Those parcels of real property located generally at the
northeast corner of Main Street and Owens Drive and more
specifically delineated in Exhibit A, attached hereto and
incorporated herein, are hereby reclassified from the R1 (Single -
family residential) and C2 (General Commercial) Districts to the SD
(Specific Development) district. Amended Sectional District Map
number 31 -4 -9 showing the said change in use district designation
is hereby approved.
3.
Amended Specific
Development Plan No. 59, set
forth in
Exhibit
B, attached hereto and incorporated herein,
is hereby
approved
and adopted for
the abovesaid property.
4. That certain Development Agreement between the City of
Santa Ana and Orient Corporation of America, Inc., in the form set
forth in Exhibit C, attached hereto and incorporated herein, is
hereby approved, and the Mayor is authorized to execute said
Agreement on behalf of the City of Santa Ana following its
execution by Orient Corporation of America, Inc., and the Clerk of
the Council to attest to the same.
5. The Clerk of the Council is directed to cause a copy of the
said Development Agreement to be recorded in the official records
of Orange County, California, within ten days following its
effective date. As use herein effective date means the date thirty
days after the date of adoption of this ordinance.
2
ORDINANCE NS -2192
Page 3
ADOPTED this 3rd
ATTEST:
i
nice C. Guy /-
lerk of the Council
COUNCILMEMBERS:
day of I4av , 1993.
D 1 Youn
Mayor
Young Ave APPROVED AS TO FORM:
Pulido Ave
Lutz Aye
Mills Ave
Moreno Ave_.
Norton Ave Edwar J.0 'e
Richardson Ave City Attorney
CERTIFICATE OF ORIGINALITY & PUBLICATION
State of California
County of orange
I, JANICE C. GUY, Clerk of the Council, do hereby certify the
attached ordinance Z / to be the original ordinance
adopted by the City Council of the City of Santa Ana on
12 /9 3 ; and that said ordinance was published in
accordance with the Charter of the City of Santa Ana.
3 �Z °s /- /— .3
C rk of the Council,`D to
City of Santa Ana
0
10101lik"
CITY COUNCIL April 19, 1993
MEETING DATE
TITLE ENTITLEMENT ACTIONS FOR THE
MAIN STREET CONCOURSE PROJECT
LOCATED AT 2775 NORTH MAIN
STREET
7-�-
MANAGER
RECOMMENDED .ACTION
CLERK OF THE COUNCIL USE ONLY
Approved
❑ As Recommended
❑ As Amended (see Minutes) t
❑ Ord inance on 1 st Reading APR t 9
❑ Ord inance on 2nd Reacing
❑ Implementing Resolution
❑ Set Public Hearing For
Continued to:
3
1. Adopt a resolution certifying Final Environmental Impact Report No. 90 -2,
making environmental findings and approving the mitigation monitoring
program;
2. Adopt an ordinance approving Amendment Application No. 1055 /specific
Development No. 59 and Development Agreement No. 92 -1, as amended by the
Planning Commission; and
3. Adopt a resolution approving General Plan Amendment No. 92 -3, Vesting
Tentative Tract Map No. 14408 as conditioned, Conditional Use Permit No. 92 -9
as conditioned, and Variance No. 92 -4 as conditioned.
PLANNING COMMISSION ACTION
Recommend that the City Council:
1. Adopt a resolution certifying Final Environment Impact Report No. 90 -2,
making environmental findings and approving the mitigation monitoring
program;
2. Adopt an ordinance approving Amendment Application No. 1055 /Specific
Development No. 59 and Development Agreement No. 92 -1, as amended;
3. Adopt a resolution approving General Plan Amendment No. 92 -3, Vesting
Tentative Tract Map No. 14408 as conditioned, Conditional Use Permit No. 92 -9
as conditioned, and Variance No. 92 -4 as conditioned by a vote of 7:0 at its
meeting of March 22, 1993.
r a "A,
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Main Street Concourse Entitlement Actions
April 19, 1993
Page 2 of 12
NOTE: ALL EXHIBITS REFERRED TO IN THIS REPORT ARE AVAILABLE FOR REVIEW IN THE CITY
CLERK'S OFFICE.
DISCUSSION
Request of Applicant
The applicant, Shimizu Corporation of America, for Orient Corporation, is applying
to the City to construct a 1,964,770 square foot mixed use development on a 824,631
square foot (17.14 acre) site. To facilitate the entitlement of this project, the
applicant requests approval of the following actions:
General Plan Amendment: To raise the allowable Floor Area Ratio
(F.A.R) from 1.5 to 2.54;
Amendment Application: To change the zone from General Commercial
(Zone Change) (C -2) to Specific Development No. 59 (SD -59)
to accommodate the mixed use nature of the
project;
Development Agreement: To establish the terms of development between
the property owner and the City;
Vesting Tentative Tract Map: To consolidate the site and reparcel it for
financing, phasing and condominium sales;
Conditional Use Permit: To permit a helistop on the proposed 32 -story
office tower;
Variance: To allow for a 20 percent parking reduction
based upon a shared parking concept for limit-
ed tandem parking and for limited valet park-
ing; and
Environmental Impact Report: To certify the adequacy of the Final EIR and
mitigation monitoring program.
Property Description
The subject site is in the MainPlace Area District Center abutting the City of
Orange to the north (Exhibit 1) . The area is primarily retail and office in nature
with multi - storied buildings in both the City of Santa Ana and the City of Orange.
North of the site is the Town and Country shopping center and a Tishman Executive
Center tower. An additional office tower is proposed for the Tishman Center in the
future. To the east of the project site is a senior citizen's retirement community
with various levels of care available. South of the site is Santiago Park and the
Lincoln Town Center office project. The Northeast neighborhood is south of Santiago
203 75A
Main Street Concourse Entitlement Actions
April 19, 1993
Page 3 of 12
Park. The Fidelity Federal tower and the MainPlace mall are across Main Street to
the west of the site (Exhibit 2).
The 18.9 acre site is bound by Main Street, Owens Drive and Lawson Way with the City
limit along the north property line. After street dedications, the net parcel size
is 17.14 acres. The proposed development site includes the Polly's Pies site and
remnants of City owned parcels acquired by the City for the Owens Drive Street
widening. The current zoning is General Commercial (C -2) and the General Plan land
use designation is District Center (DC) with a maximum 1.5 Floor Area Ratio (F.A.R).
Project Description
The proposed Main Street Concourse project will be an intensive mixed -use
development. Phase I will incorporate a Class -A 32 -story executive office tower,
boutique retail space, a community entertainment complex (cinemas and live theater),
and attached single family residences, connected by a pedestrian circulation
network. Additional amenities will include restaurants and a health club.
Structured and subterranean parking will accommodate 4,028 cars. Total Phase I
square footage is 899,125. Phase II includes a 22 story office tower, additional
low -rise retail facilities, a 19 -story high -rise residential condominium tower, and
parking structure. Total Phase II square footage is 1,065,645 (Exhibit 3). Total
project gross square footage is 1,964,770. Total parking provided is 5,464 spaces.
The variety of land uses are positioned throughout the site in a manner which
attempts to complement and enhance established land uses on adjacent parcels
(Exhibit 4).
The Main Street Concourse land use, planning, and design premise is unique to Orange
County. It stresses a people oriented environment and it parallels the European
Plaza concept where pedestrian and automobile traffic can co -exist on -site to create
an experience of urban activity in a safe and high quality setting.
The main plaza, "Theme Square ", will front the office towers, sidewalk cafes, and
retail shops. At the center of Theme Square, culturally oriented outdoor art
exhibits are proposed to be on display for public view. Theme Square will also
allow for public outdoor assembly under a landscaped canopy and among water
fountains. Theme Square will also be anchored by "The Concourse ", an internal
shopping street lined with colorful trees, flowers, street lights, textured paving
and festive banners. "The Concourse" will create dual street frontages internally
and along Main Street.
The commercial /retail buildings proposed on the west portion of the site in between
the existing Town and Country shopping center and Lincoln Town Center office
building creates a continuum of commercial uses along Main Street. Smaller
commercial buildings are placed on the project periphery. Larger buildings are
located away from the street to reduce the visual impact on neighboring properties
and streets. While smaller retail uses animate the street, the higher structures
will be perceived in the background as landmarks and orientation features. Roof -top
mechanical equipment will be screened from view so as not to distract from
75A 204
Main Street Concourse Entitlement Actions
April 19, 1993
Page 4 of 12
architectural roof line treatments. Ground views to and from various portions of the
site will be possible but limited by the office tower and the low -rise commercial
structures.
A proposed three -story health club /live - performance theater /cineplex will bridge
between the residential and commercial uses and is easily accessible to outside
visitors from the parking structure. The building, along with the Phase I office
tower and retail building, will be positioned adjacent to the parking structure to
minimize the garage structure's visual impact to the surrounding community. Surface
parking lots will be provided in Phase I, south of the driveway entrance off of Main
Street.
Development of a station for the proposed fixed guideway system in Orange County is
also proposed should the system be developed. The project may also include a
pedestrian bridge linking the project to MainPlace on the opposite side of Main
Street. The walkway would establish a direct link between the proposed development
and adjacent uses. Any guideway station or pedestrian bridge would be required to
undergo detailed review and approval as they are developed.
A network of open space is proposed throughout the development with landscape,
waterscape and hardscape treatments. The open space element of Main Street
Concourse, along with "The Concourse" (internal road), will introduce a linkage to
adjacent Santiago Park and to the neighboring Town and Country development. The
residential area on the eastern portion of the project was sited to relate to the
Town and Country Manor Retirement and Health Care center and to the Northeast
neighborhood. The proposed residential uses respect the residential neighborhood
scale of the adjacent uses by concentrating the single family attached housing on
the perimeter of the site. The low scale perimeter townhouses surround a later
phased high -rise residential tower, thereby minimizing the impact of the highrise
buildings on the street -level land uses. The residential segment is proposed to be
in a Mediterranean design. Arcaded bases, balconies, bay windows, varying roof
lines, and high quality, smooth troweled plaster walls with tiled .detail will be
used to soften the architecture.
The housing includes 64, 2,000 square foot, two -story single family attached housing
units along Owens Drive, Lawson Way, the project access road at Lawson Way and a
central landscaped recreational interior open space. Automobile access is provided
to these units by a decorative paved internal road which separates the rows of
housing. Each unit is designed with a secured private garage accessible to each
unit's living space. The residential massing will reflect a clear human scale to
the pedestrian along the street frontages.
A major open space element which will be approximately the size of a football field,
will exist within the interior of the residential area with a link directly to the
commercial and retail portion of the site. Landscaping, a water feature and outdoor
recreation areas will fill the open space. A 216 -unit high rise housing tower will
front the open space and buffer it from the proposed parking garage. Housing in the
205 75N
ed
Main Street Concourse Entitlement Actions
April 19, 1993
Page 5 of 12
tower will be primarily one and two bedroom units, some with loft space, ranging in
size from 1,200 to 1,800 square feet.
Planning Commission Recommendations
The Planning Commission considered the entitlement actions at their meeting of March
8, 1993. In addition to written comments, the Planning Commission received public
hearing comments from over 30 individuals at that time. The actions were then
continued to their meeting of March 22, 1993. At that time, the Planning Commission
voted unanimously to recommend approval of the entitlements, with the following
modifications to the entitlement documents and conditions:
1. Neighborhood Traffic Mitigation Fund
The staff proposal presented to the Planning Commission established a fund in
the amount of $750,000 to mitigate potential neighborhood traffic intrusion.
This amount would be paid in two phases: $100,000 to be paid during Phase I
and $650,000 to be paid during Phase II. Interest earned from the account
would be payable to the developer.
The Planning Commission modified this provision to require the developer to
provide the entire $750,000 prior to the Certificate of Occupancy for the
first Phase I commercial building. Interest earned on this money would be
retained in the account and available for mitigation.
2. Conditional Use Permit for a Helistop
The staff proposal presented to the Planning Commission would have allowed a
maximum of eight flights (four operations) per day, one per hour, or 148 per
month.
The Planning Commission modified this condition to establish a maximum of
eight flights (four operations) per day, one per hour or 88 flights per
month. All flights must occur between 7:00 a.m. and 7:00 p.m. Monday through
Friday and 9:00 a.m. and 5:00 p.m. Saturday and Sunday.
3. The Planning Commission also added a provision encouraging the developer to
establish an apprenticeship program with local building trade associations.
The Analysis of the Issues which follows incorporates the modifications made by the
Planning Commission.
Analysis of the Issues (Exhibits 5 -16)
1. Parking
Per the Santa Ana Municipal Code, the proposed project requires a total of
6,826 non - residential parking spaces at build -out, 3,826 of which must be
206 7 6 A
Revised
Main Street Concourse Entitlement Actions
April 19, 1993
Page 6 of 12
provided with Phase I. At the completion of Phase I, the project will
provide 130 spaces more than the code requires. At the completion of the
entire project, the proposal is to reduce parking by 20 percent of code to
5,464 non - residential spaces. This reduction is proposed based upon a shared
parking concept and a use interaction concept.
Shared parking is the concept where uses with different peak parking demands
create a maximum total on -site need at any given time. The amount of
required parking is based on the highest cumulative peak demand for the
project. This occurs at 1:00 pm for the proposed project.
Use interaction is the concept where in a mixed use setting, trips and
parking demand is reduced by uses pulling pedestrian customers from other on-
site uses. For example, a restaurant receives a percentage of customers from
office users on -site and those restaurant customers' parking is also counted
in the office use count.
The applicant has submitted to the City a parking analysis based on the Urban
Land Institute's shared parking analysis methodology. Barton- Aschman
prepared the analysis and finds that, based on the shared parking and use
interaction concepts, a parking reduction of up to 20 percent may be
justified.
Residential parking has been excluded from all analysis and is being treated
exclusive of non - residential reductions. All code required residential
parking will be provided.
2. Intensity /Floor Area Ratio
The General Plan designates the area of the proposed project as a District
Center. District Centers are the portions of the City that are to have the
highest intensities of development and are to contain a mix of uses. These
areas are the urban nodes of the City form. The northern most of these
nodes, around MainPlace and including the project site, is permitted a floor
area ratio of up to 1.5, except at MainPlace where a 2.0 floor area ratio is
permitted.
The proposed development is requesting a general plan amendment to increase
the floor area ratio for the project site to a maximum of 2.54. This
intensity level is consistent with the concept of the District Center and
compatible with the build out of the MainPlace site. An intensity level
increase provides a critical mass of multiple uses that successfully create
a synergistic atmosphere, high activity levels, and interaction of activi-
ties. The increase in intensity, however, does have a corresponding increase
in impacts such as traffic and air quality, both of which have been analyzed
in the Environmental Impact Report.
207 75
Main Street Concourse Entitlement Actions
April 19, 1993
Page 7 of 12
3. Building Height
The project site and areas around it are in a height- exempt district. Height
limits normally applied to development throughout the City are not applicable
to the project and no cap on height exists. This height exempt concept is
also consistent with the District Center. The project proposes a 32 -story
tower, the tallest to date in Orange County. A second office tower would be
22 stories. The hotel proposed would be 20 stories and a high -rise
condominium tower is envisioned at 19 stories. These structures are situated
toward the center of the site with two and three story structures abutting
public streets, minimizing visual impacts. From a distance, the towers will
add to the skyline presence of Santa Ana. All towers are proposed with
enhanced architectural forms rather than simple rectangular boxes with a
monotonous exterior skin. All shadows fall on the site or adjacent
commercial projects to the north. There are no shadow impacts to Santiago
Park or the Northeast neighborhood.
4. Traffic Congestion
The 1.9 million square foot project is anticipated to have some impact on
area wide traffic. A traffic analysis was conducted to establish and measure
the impending impacts that the project might have on the area. The study
indicated that the project will generate approximately 18,312 trips daily
during Phase I and 34,236 trips daily at the completion of Phase Two.
As a result of the study and several neighborhood meetings, a number of
mitigating measures were developed to address the impact that the project
might have on the area. To mitigate these trips, especially at peak hours,
areawide traffic improvements by the developer are necessary. These
improvements include:
a. The widening on Owens Drive to six lanes;
b. The improvement of Main Street, Owens, and Lawson Way adjacent to the
project to arterial standards;
C. A fairshare contribution of funds for the improvement of the intersec-
tion of Main Street and Town & Country Drive;
d. The payment of transportation improvement fees;
e. The preparation and implementation of a transportation demand manage-
ment program for office trip reductions;
f. The installation of a traffic signal at the intersection of Owens and
the project entry to Phase I;
Main Street Concourse Entitlement Actions
April 19, 1993
Page 8 of 12
g. The installation of a traffic signal at the intersection of Owens and
Lawson Way;
h. The restriping of Parker Street at La Vets. to provide dual northbound
left turn lanes;
i. The early completion of the intersection of Owens Drive and Main
Street, including sewer work;
J. The improvement of the intersection of Lawson Way and Town and Country
Drive; and
k. A right -of -way easement for a future fixed guideway station.
In addition to the area wide traffic improvements listed above, the developer
is responsible for conducting post - project studies to determine impacts on
adjacent residential neighborhoods. The developer will contribute funds in
order to make identified traffic improvements for those neighborhoods.
$750,000 will be required prior to the Certificate of Occupancy for the first
Phase I commercial building. Interest earned on this amount will remain in
the fund.
5. Parking Intrusion
A project generating a need for 3,956 Phase I parking spaces and 5,464
buildout parking spaces must accommodate that parking on -site in an easily
usable manner. If the design of the parking creates bottle neck delays, is
considered unsafe or is perceived as inconvenient, project users may search
out alternatives, such as parking at MainPlace, Town and Country shopping
center, or Santiago Park. In extreme cases, it would not be unrealistic to
have some parking intruding into the Northeast neighborhood.
In response to these concerns, the developer, architect, and parking
management consultant have designed the parking and developed a parking
operations plan which maximizes ease of use. The design of the site plan has
been laid out with four public ingress /egress points to distribute access to
and from the site. Parking aisles have been planned for ease of circulation
and proximity to project destinations. There will be clear signage, separate
valet access, and adequate stacking before and after access gates. Security
features such as highlighting levels, no blind corners, and clear pedestrian
access points have been incorporated into the parking design.
The parking operations plan sets out the operational parameters for the
project to ensure efficient, convenient and safe use of the parking area.
Features of the operation plan include:
a comprehensive validation program;
two hours free parking; A
209
Main Street Concourse Entitlement Actions
April 19, 1993
Page 9 of 12
- posting of signage in adjacent areas;
- attendant or security guard monitoring off -site parking abuse (neigh-
borhood intrusion) with employer notification when violations occur;
- dual exiting lanes, one for prepaid and monthly and another for non -
validated;
- residential parking is 100 percent exclusive of non - residential
parking;
- valet and hotel parking will have its own exclusive parking areas;
- security and parking attendants provide an added level of on -site
security; and
- the restriction of Concourse Drive from traffic during peak traffic
hours and events.
6. Amendment Application /Specific Development
The Specific Development District is a customized zoning classification used
for unique and /or mixed use projects. The Specific Development Plan proposed
for Main Street Concourse incorporates the intent of the C -2 district for the
commercial portion and the R -2 /townhouse standards for the residential
portion. The Specific Development text also lays out specific development
criteria for the review of the project.
Permitted uses allowed in the commercial portion of the project are those
typically found in mixed use projects including general and professional
office, retailing and services. For the residential portion, only single -
family attached (townhouses) and highrise condominiums are permitted. No
other types of residential projects (i.e. stacked flats) are permitted.
7. Vesting Tentative Tract Map
The proposed tract map for this project satisfies several objectives. First,
it consolidates several smaller and remnant parcels with the core property
already owned by the developer. These pieces include the Polly's Pies site
and remnant pieces of single family properties on Owens Drive that the City
acquired for street widening purposes.
The second objective is to reparcel the project into five new parcels for
financing, phasing and development of the site. One parcel encompasses the
residential portion while the remaining four contain the commercial portions
of the site.
The third objective is to create condominium units for the housing- airspace
for the highrise units and townhouse for the single - family attached product.
The subsequent final tract maps resulting may be multiple in nature to
reflect the phased nature of development. The "vesting" nature of the map
ensures that the standards to be applied to the project will be those adopted
with the approval of the map.
v
Main Street Concourse Entitlement Actions
April 19, 1993
Page 10 of 12
8. Helistop /CUP
A conditional use permit is required for any helistop. The project proposes
a private use helistop on the top of the 32 -story building. It will be for
the exclusive and limited use of major tenants of the project.
Analysis of the facility in the EIR found that there is the potential for low
frequency noise impacts from helicopter traffic. Most impacts can be
mitigated by directing traffic to specific corridors, use of low noise
machines and limiting hours of operation and numbers of trips outlined in the
findings and conditions of approval. Conditions include:
1. The flight approach and departure for the helistop shall parallel
nearby freeways as permitted by air traffic control authorities;
2. Environmental mitigation measures, both design and operational, shall
be implemented by inclusion in project design or included in the CC &R's
and implemented by project management;
3. An operation and protocol manual shall be submitted for review and
approval prior to building permit for the building that the helistop is
located on. Mitigation measures shall be implemented as identified in
the mitigation monitoring program;
4. The number of flights to the thirty two story building helistop shall
not exceed eight flights (four operations) per day, one per hour, or
88 per month;
5. Flights shall not arrive or depart before 7 a.m. or after 7 p.m. on
weekdays and 9:00 a.m. and 5:00 p.m. on weekends.
6. Developer shall provide FAA approval prior to building permit; and
7. Use of the helistop shall be limited to "quiet" helicopters or similar
as identified in the EIR.
9. Development Agreement
The Development Agreement is a legal contract between the developer and the
City defining the terms and nature of development. The term of the agreement
is 20 years. It establishes development intensity, density, permitted uses
and standards for the term of the agreement. In exchange for the City
locking in standards and increasing allowable intensity, the development
agreement also requires certain community- oriented improvements. These
include:
A $3.23 million contribution for the improvement of facilities and
trails at Santiago Park; and
211 75A
Main Street Concourse Entitlement Actions
April 19, 1993
Page 11 of 12
A $1 million live performance theater to be constructed in conjunction
with the entertainment complex of the project.
In order to ensure the project is truly a mixed use project and that the City
is not left in the position of having a townhouse project sitting on the site
all by itself, the City and developer have agreed on a phasing plan that
ensures the commercial is under substantial construction prior to the release
of occupancy for any residential unit. The assurance requires demonstration
of project funding, building permits issued and substantial construction
prior to the issuance of occupancy permits for the townhouses.
10. Owner Participation Agreement
The Owner Participation Agreement is between the City's Redevelopment Agency
and the developer. It covers the terms of sale and purchase of the City and
Agency surplus land on Owens Drive as well as the possible acquisition of the
Polly's Pies site by the Agency for inclusion into the overall development
site. Costs related to the sale and purchase of properties covered by this
agreement will be the developer's responsibility.
The applicant is in the process of acquiring the Polly's Pies site to
complete their proposed development site. Should their negotiations with the
owner of Polly's Pies be unsuccessful, the Redevelopment Agency of the City
of Santa Ana is anticipated to work with the parties to resolve acquisition
and relocation issues. The developer is also working with the City on
establishing a Mello -Roos district to assist in funding public improvement
needed for this project.
Environmental Analysis
An Environmental Impact Report (EIR) for the Main Street Concourse Project was
released by the City on December 13, 1991 for public review. After additional
review by the City, it was determined that additional analysis and clarification was
required for the traffic discussion in the EIR. The public was notified that a new,
revised EIR would be released.
On April 15, 1992, the revised Draft EIR for the Main Street Concourse project was
circulated to the public for a 45 -day review period ending June 1, 1992. A public
hearing on the draft document was held on May 11, 1992 before the Planning
Commission.
During the Notice of Preparation process and neighborhood meetings, a number of
concerns were expressed with the proposed project. In general, the concern focused
on the level of existing and proposed development in the area, the intensity of the
site (floor area ratio of 2.54), the height of the office towers (up to 32 stories)
and the traffic congestion resulting from the development. Off -site parking within
residential neighborhoods adjacent to the project was also a concern. These issues
are discussed in the EIR.
It
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Main Street Concourse Entitlement Actions
April 19, 1993
Page 12 of 12
There will be significant unavoidable adverse impacts associated with the
development of this project. The intersection of Main Street and Buffalo is
adversely impacted by the proposed project and cannot be mitigated to acceptable
levels with cumulative projects. Due to anticipated cumulative projects in the area
of the project intersections may be adversely impacted after mitigation. All other
identified traffic impacts except those listed above shall be mitigated by this
project.
Additionally, the proposed project has the potential to generate substantial
emissions and will contribute to long term air emissions in a nonattainment area.
The draft EIR identifies a significant unavoidable adverse noise impact on the
project and adjacent land uses if pile driving for the high rise building
foundations is necessary. cumulative noise impacts from past, present and
reasonably foreseeable future projects on roadways in the project area are not
significant.
The proposed project would indirectly result in an unavoidable adverse impact on the
City's job /housing balance by increasing employment opportunities without supplying
a corresponding increase in housing.
Responses to comments have been prepared and distributed to the public. The
neighborhood traffic mitigation reflects the applicant's agreement to increase the
funding committed for Phase I and Phase II neighborhood traffic impact studies and
mitigation.
A mitigation monitoring program has been completed for this project to ensure that
the mitigation measures identified in the EIR are implemented during the life of
the project.
Robyn tegraff
Executi a Director
Planning and Building Agency
JSR: JW: PS
Attachments
213 j
IuG\ 0114
Dan Young
MAYOR PRO TEM
Miguel A. Pulido
COUNCILMEMBERS
Thomas E. Lutz
Lisa Mills
Ted R Moreno
Rick Norton
Robert L. Richardson
—9
Education 1st
CITY OF SANTA ANA
20 CIVIC CENTER PLAZA • P.O. BOX 1988
SANTA ANA, CALIFORNIA 92702
MEMORANDUM
ALL - AMERICA CITY 1982 -83
CITY MANAGER
David N. Ream
CITY ATTORNEY
Edward J. Cooper
CLERK OF THE COUNCIL
Janice C. Guy
May 21, 1993
TO: Clerk of the Council
FROM: Assistant City Attorney
SUBJECT: Main Street Concourse Development Agreement
Forwarded to you herewith is the Development Agreement between
the City and Orient Corporation of America, Inc. for the Main
Street Concourse project, duly executed by the developer. As you
are aware, this Development Agreement was approved by the City
Council in its adoption of Ordinance No. NS -2193 on May 3. That
ordinance will become effective on June 2.
Pursuant to Government Code section 65868.5, the clerk of the
legislative body is directed to record a development agreement "no
later than 10 days after a city . . . enters into a development
agreement." Assuming that date of entry to be the effective date
of the ordinance approving the development agreement, that would
give the period June 2 to June 12 as the period for recordation of
the Main Street Concourse Development Agreement.
Please arrange for the execution of this Development Agreement
by the City and for its recordation in the Official Records of
orange County.
Richard E. Lay
Assistant City Attorney
CITY ATTORNEY - (714) 647 -5201 FAX NO. (714) 647 -6515 CS -678