HomeMy WebLinkAbout75A - PH MACARTHUR PLACE SOUTH - SKYLINE TOWERSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
MAY 4, 2009
TITLE:
PUBLIC HEARING - AMEND DEVELOPMENT
AGREEMENT NO. 2005-02 AND CONDITIONAL
USE PERMIT NOS. 2005-10 AND 2005-15
TO ALLOW THE RENTAL OF UNITS AT THE
SKYLINE TOWERS AND MONTAGE PROJECTS
LOCATED AT MACAIZTHUR PLACE SOUTH -
NDC SKYLINE ASSOCIATES, LLC AND
INTEGRAL COMMUNITIES, APPLICANTS
~(.
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 15` Reading
^ Ordinance on 2~`' Reading
^ Implementing Resolution
^ Set Public Hearing For
CONTINUED TO
FILE NUMBER
1. Adopt an ordinance approving the second amendment to Development
Agreement No. 2005-02 with respect to Nexus/NDC Skyline Towers.
2. Adopt a resolution approving the amendment to Conditional Use
Permit No. 2005-10 as conditioned.
3. Deny the application of Integral Communities I, Inc. to amend
Development Agreement No. 2005-02.
4. Adopt a resolution denying the amendment to Conditional Use Permit
No. 2005-15.
PLANNING COMMISSION ACTION
On March 23, 2009, the Planning Commission recommended that the City
Council:
1. Adopt an ordinance approving the second amendment to Development
Agreement No. 2005-02 with respect to Nexus/NDC Skyline Towers.
2. Adopt a resolution approving the amendment to Conditional Use
Permit No. 2005-10 as conditioned.
By a vote of 7:0.
75A-1
Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15
May 4, 2009
Page 2
3. Deny application of Integral Communities, I, Inc. to amend
Development Agreement No. 2005-02.
4. Adopt a resolution denying the amendment to Conditional Use Permit
No. 2005-15.
By a vote of 4:3 (Gartner, Mill, Turner opposed).
NDC Skyline Association, LLC and Integral Communities are proposing to
amend provisions of the MacArthur Place South development agreement and
two conditional use permits to allow the rental of units at the Skyline
Towers at 9 and 15 MacArthur Place and the Montage condominium project at
100-130 East MacArthur Boulevard in the Specific Development No. 76 (SD-
76) zoning district (Exhibit A) The Planning Commission, after extensive
discussions on the issues, recommended that the City Council approve
Nexus' request to allow some or all of the units within the Skyline Towers
project to be for rent. In addition, the Commission expressed concerns
with the long-term management of the property and recommended that Section
4.2 of the development agreement be modified to require the submittal of
background information on the property management company. Finally, the
Commission modified Planning Division Condition No. 26 to clarify that the
submittal of an operation plan would only be applicable to a rental
project.
In reviewing the request by Integral to allow some or all units to be for
rent at the Montage project, the Planning Commission expressed concerns
with Integral's lack of a development track record in the City, concerns
with the potential quality of the Montage since the project has yet to be
constructed, and potential issues with the future management of a rental
project. At the conclusion of their discussions, the Commission
recommended that the City Council deny Integral's request to allow rental
units at the Montage project.
FISCAL IMPACT
There is no fiscal impact associated with this action.
a M. Trevino
Executive Director
Planning and Building Agency
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of/repor[s/Nexus/Amendda05-02cup05-10&15Skylinerental.~ 5A- w
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
MARCH 23, 2009
TITLE:
PUBLIC HEARING - FILED BY NDC SKYLINE
ASSOCIATES, LLC AND INTEGRAL COMMUNITIES TO
AMEND DEVELOPMENT AGREEMENT NO. 2005-02 AND
CONDITIONAL USE PERMIT NOS. 2005-10 AND
2005-15 TO ALLOW THE RENTAL OF UNITS AT THE
SKYLINE TOWERS AND MONTAGE PROJECTS LOCATED
AT MACARTHUR PLACE SOUTH
Prepared by Vince Fregoso and Ann Ni
Executive Director
RECOMMENDED ACTION
Recommend that the City Council:
PLANNING COMMISSION SECRETARY
APPROVED
^ As Recommended
^ As Amended
^ Set Public Hearing For
DENIED
^ Applicant's Request
^ Staff Recommendation
CONTINUED TO
Planning M ager
1. Adopt an ordinance approving the second amendment to Development
Agreement No. 2005-02.
2. Adopt a resolution approving the amendment to Conditional Use
Permit No. 2005-10 as conditioned.
3. Adopt a resolution approving the amendment to Conditional Use
Permit No. 2005-15 as conditioned.
DISCUSSION
Request of Applicant
NDC Skyline Associates, LLC, a subsidiary of the Nexus Development
Corporation (Nexus), and Integral Communities, are proposing to amend
provisions of the MacArthur Place South development agreement and two
conditional use permits in order to allow the rental of some or all units
at the recently completed Skyline Towers at 9 and 15 MacArthur Place and
the pending Montage mid-rise condominium project to be located at 100-130
East MacArthur Boulevard.
Property Description
MacArthur Place South is a 9.8-acre development that is generally
situated between MacArthur Boulevard, Main Street and Sandpointe Avenue.
MacArthur Place South consists of three separate parcels and is
currently entitled for the development of three 25-story high-rise
75A-3
Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15
March 23, 2009
Page 2
towers, a six-story mid-rise residential/office building, a four to six-
story mid-rise condominium development, and 14,000 square feet of retail
and restaurant uses. Two high-rise towers, the 349-unit Skyline Towers
development at 9 and 15 MacArthur Place, were completed in October 2008.
At final build out, a total of 791 for sale condominium units are
entitled to be constructed at the MacArthur Place South project.
The overall MacArthur Place South project site is zoned Specific
Development No. 76 (SD-76) and has a General Plan land use designation
of District Center (DC) Surrounding land uses include the MacArthur
Place mixed-use development to the north, the Newport-Costa Mesa (SR-55)
Freeway to the east, office and industrial development to the south and
the Sandpointe residential neighborhood to the west (Exhibits 1 and 2).
Analysis of the Issues
In 2005, the City approved several entitlements, including a development
agreement and two conditional use permits, for The Grand Plan I and II,
LLC, subsidiaries of the Nexus Development Corporation, and Integral
Communities for the MacArthur Place South development. The development
agreement established development intensity, permitted uses and
development standards for the term of the agreement. Further, the
approved development agreement required certain improvements and public
benefits such as in-lieu fees for parkland dedication, payment of an
inclusionary housing fee, and the execution of an off-site improvement
agreement with the Sandpointe Neighborhood Association (Exhibit 3).
Also included in the entitlements was a requirement that all units
within the projects be for-sale units.
Over the last few years, a significant shift in the local and national
economy has occurred. This shift has severely impacted the real estate
and development market. As evidence of the severe nature of the
economic downturn in real estate development, of the 14 large projects
that have been submitted to the City for review in the past three years
(Brookhollow Office project, City Place retail/residential project, Sky
Loft Tower, Cordoba courtyard housing, First and Cabrillo condominiums,
Montage condominiums, Nexus Skyline Towers, Nexus Phase II, One Broadway
Plaza office tower, Promenade Pointe condominiums, Sixth and Parkcenter
development, Town and Country Manor, Village Green and the West End
Lofts), only the City Place and Skyline Towers projects have begun or
completed construction. These same trends are evident in communities
throughout the region.
7 5A-4
Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15
March 23, 2009
Page 3
The modifications to Development Agreement No. 2005-02 and Conditional
Use Permit No. 2005-10 will give Nexus the ability to rent some or all
units within the 349-unit Skyline Towers project, which was completed in
October of 2008. Further, the modifications to the development
agreement as well as Conditional Use Permit No. 2005-15 will give
Integral the ability to secure financing and begin construction on the
276-unit Montage mid-rise development that will be located at the
southwest corner of Main Street and MacArthur Boulevard (Exhibit 4).
Given that the towers have been constructed with the original
expectation that the residential units would be immediately offered for
sale as luxury condominiums, the various design elements and amenities
(enhanced interior and exterior finishes, unit fixtures, public and
private spaces) for the Skyline Towers project are of a quality that
exceeds that provided for any comparable project, rental or for-sale.
In addition, because the units are completed but vacant, it allows for
the towers to be occupied despite the recent downturn in the housing and
financing markets. Further, it minimizes the potential for the towers
to remain vacant for an extended period of time and provides readily
available housing in the community. Nexus still remains committed to
the eventual sale of units within the Skyline Towers and will be
actively involved in the sale or rental of the units.
Integral is also committed to developing the project as entitled, with
the design elements, finishes and amenities for the Montage project to
be of the highest quality. Integral is also committed to the eventual
sale of units within the Montage project and will also be involved in
the sale or rental of the units.
The documents allowing the sale of units, including the subdivision map
and covenants, conditions and restrictions (CC&Rs), have been recorded
for the Skyline project, which allows Nexus the ability to continue to
sell units now and in the future as the housing and financial markets
shift. Thus this action may be a bridge to the ultimate owner occupancy
of the project. The same documents have also been recorded for the
Montage project, which will also allow Integral the ability to sell
units as the project is constructed.
The downturn in multi-family residential development has impacted
projects throughout the county. Other adjacent communities such as
Anaheim, Costa Mesa and Irvine have entitled similar mid and high-rise
projects that have either been placed on hold or are recently completed.
Table 1, shown on the following page, provides an update of select
projects in these jurisdictions as well as identifies if the projects
can be converted from condominiums to apartments.
75A-5
Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15
March 23, 2009
Page 4
Table 1
List of Similar Projects in Adjacent Jurisdictions
Jurisdiction Project Name Units Status Apartments/Condo
Anaheim Stadium Lofts 390 Completed Approved as
apartments/converted
to condos
1818 265 Completed Approved as
condos/converted to
apartments
Anavia 250 Completed Approved as
condos/converted to
apartments
Avalon Anaheim 251 Completed Approved as
Stadium condos/converted to
apartments
Costa Mesa North Costa 1,269 Entitled Condos (must amend
Mesa High-rise entitlements to be
residential apartments)
Enclave 890 Completed Apartments
Lakes at South 770 Completed Apartments
Coast
Irvine Marquee at 232 Completed Condominiums
Park Place
Lofts at Von 115 Under Approved as
Karman construction condos/may be
converted to
apartments
Nexus has established a strong track record of success in the City.
Further, Nexus has complied with all requirements and conditions of the
project and has constructed a project that exceeds what is typically
required for a multi-family residential project. Given Nexus'
involvement in the rental of the project, it is expected that the rental
component of the Skyline Towers will also be successful. It is also
expected that Integral will continue to be actively involved in the
project and will maintain the units at the highest levels.
Additional conditions of approval have been added to ensure the projects
remain of highest quality. Therefore, staff recommends that the
Planning Commission recommend that the City Council approve the
Amendment to Development Agreement No. 2005-02 and the Amendments to
Conditional Use Permit Nos. 2005-10 and 2005-15 as conditioned (Exhibits
5 through 8 ) .
75A-6
Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15
March 23, 2009
Page 5
CEQA Compliance
The allowance of rental units within the projects could result in an
increase in vehicle trips for the project. However, in analyzing the
proposed project, it has been determined that no significant trip
generation changes will result. Urban Crossroads, a traffic engineering
firm, utilized the Orange County Transportation Analysis Model (OCTAM), to
review potential impacts from the project. Using the traffic analysis
model, which calculates the long-range analysis for the project, it was
determined that no new impacts are expected since the number of overall
units, the number of persons in the households and the income levels for
the project will remain the same. Further, no new traffic impacts are
expected since the overall form and intent of the buildings will not
change, with the floor plans and related amenities remaining the same for
either a for-sale or rental project. Finally, the use of the units as
rental units will be an interim use of the site, with units available for
purchase in addition to rental. Therefore, in accordance with the
California Environmental Quality Act, the proposed project has been
determined to be adequately evaluated in previously prepared Environmental
Impact Report No. 2004-02.
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Vince Freg so, AI P
Principal "er
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Ann Ni
Associate Planner
75A-7
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30 P.O. Box 1988
Santa Ana, California 92702
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Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
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2005000565108 03:12pm 07{21105
116 67 A12 70
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FREE RECORDING
GOVERNMENT CODE § 6103
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DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
And
THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC
Dated: August 4, 2005
DOCSOC/1110339v11/24579-0001 EXHIBIT 3
75A-10
Table of Contents
Page
1. RECITALS ...............................................................................................................................1
1.1 Purpose .........................................................................................................................1
1.2 Code Authorization .....................................................................................................1
1.3 Owner ...........................................................................................................................1
1.4 Planning Commission -Council Hearings ................................................................1
1.5 Council Findings ..........................................................................................................2
1.6 City Ordinance .............................................................................................................2
2. DEFINITIONS .........................................................................................................................2
3. EXHIBITS ................................................................................................................................7
4. GEN ERAL PROVISIONS ......................................................................................................7
4.1 Duration of Agreement ...............................................................................................7
4.2 Assignment ...................................................................................................................7
4.3 Permitted Assignments ...............................................................................................8
4.4 Amendment or Cancellation of Agreement ..............................................................8
4.5 Hold Harmless .............................................................................................................9
4.6 Binding Effect of Agreement ......................................................................................9
4.7 Relationship of the Parties ..........................................................................................9
4.8 Notices ...........................................................................................................................9
5. DEVELOPMENT OF THE PROPERTY ........................................................................... 10
5.1 Owner Obligations ..................................................................................................... 10
5.1.1 Cooperative Agreement ................................................................................ 10
5.1.2 Public Improvements .................................................................................... 10
5.1.3 Phasing ........................................................................................................... 11
5.1.4 FAA Approval ............................................................................................... 11
5.1.5 Avigation Easement ...................................................................................... 11
5.1.6 Limit on Fast Food and Take Out Restaurants ......................................... 11
5.1.7 Development, Construction and Completion of Public Art ...................... ll
5.1.8 Inclusionary Housing Fee ............................................................................. 11
5.1.9 In-Lieu Park Development Fee .................................................................... 11
5.1.10 Covenants, Conditions, and Restrictions .................................................... 12
5.1.11 Parking Structure Easement ........................................................................ 12
5.1.12 Lake Improvements ...................................................................................... 13
5.1.13 Use of "City of Santa Ana" ........................................................................ 13
5.1.14 Compliance With Governmental Requirements ........................................ 13
5.1.15 Obligation to Submit Working Drawings and Commence
Construction .................................................................................................. 13
5.2 City Obligations ......................................................................................................... 13
5.2.1 Vested Rights to Develop .............................................................................. 13
5.2.2 Non-application of Changes in Applicable Rules ....................................... 13
5.2.3 Special Tazes and Assessments .................................................................... 14
5.2.4 Agreed Changes and Other Reserved Powers ............................................ 14
5.2.5 Subsequent Development Approvals ........................................................... 14
5.2.6 Moratoria ....................................................................................................... 14
DOCSOC/ l 110339v 11 /24579-0001
75A-11
Table of Contents
(continued)
Pa>;e
5.2.7 Timing of Development ................................................................................14
5.2.8 Development Impact Fees ............................................................................14
5.3 Cooperative Agreement ............................................................................................14
6. ANNUAL REVIEW ...............................................................................................................14
6.1 City and Owner Responsibilities ..............................................................................14
6.2 Review Letter .............................................................................................................15
6.3 Failure of Periodic Review ........................................................................................15
7. DEFAULT .............................................................................................................................. 15
7.1 Events of Default by Owner ...................................................................................... 15
7.1.2 Events of Default by City ............................................................................. 15
7.2 Procedure upon Breach ............................................................................................ 16
7.3 Termination ................................................................................................................ 16
7.5 Institution of Legal Action ........................................................................................16
7.6 Multiple Owners ........................................................................................................16
7.7 Alternative Dispute Resolution ................................................................................17
7.8 Interim Relief .............................................................................................................18
7.9 Entitlements Survive Termination ...........................................................................18
7.10 Miscellaneous .............................................................................................................18
8. MORTGAGEE PROTECTIONS .........................................................................................18
8.1 Right to Owner/Notice/Multiple Mortgagees ..........................................................18
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure ...........18
8.3 Mortgagee Not Obligated Under the Agreement ....................................................19
8.4 No Liability ................................................................................................................19
8.5 No Amendment or Termination ...............................................................................19
8.6 Condemnation or Insurance Proceeds .....................................................................19
8.7 Title by Foreclosure ...................................................................................................19
8.8 Delegation to Mortgagee ...........................................................................................19
8.9 No Obligation to Cure ...............................................................................................20
8.10 Separate Agreement ..................................................................................................20
8.11 Estoppel Certificate ...................................................................................................20
8.12 Conflicts ......................................................................................................................20
9. MISCELLANEOUS PROVISIONS ..................................................................................... 20
9.1 Rules of Construction ................................................................................................ 20
9.2 Entire Agreement, Waivers and Amendments ....................................................... 20
9.3 Project as a Private Undertaking ............................................................................. 21
9.4 Incorporation of Recitals .......................................................................................... 21
9.5 Captions ...................................................................................................................... 21
9.6 Consent ....................................................................................................................... 21
9.7 Covenant of Cooperation .......................................................................................... 21
9.8 Time of Essence .......................................................................................................... 21
9.9 Conflicts of Law ......................................................................................................... 21
9.10 Enforced Delay; Extension of Time of Performance .............................................. 21
9.11 Recording ................................................................................................................... 22
DOCSOC/ 1110339v 1 1 /24579-000 1
75A-12
Table of Contents
(continued)
Page
9.12 Subdivision of Project ...............................................................................................22
9.13 Severability .................................................................................................................22
9.14 Waiver ........................................................................................................................22
9.15 No Personal Liability .................................................................................................22
9.16 Conditions of Discretionary Approvals ...................................................................22
9.17 Precedence ..................................................................................................................22
EXHIBITS
EXHIBIT A PROPERTY DESCRIPTION
EXHIBIT B PUBLIC ART PLAN
EXHIBIT C COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS
EXHIBIT D PUBLIC IMPROVEMENTS
EXHIBIT E AVIGATION EASEMENT
EXHIBIT F LAKE IMPROVEMENTS
~~~
DOCSOC/ 1110339v l 1 /24579-0001
75A-13
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA,
THE GRAND PLAN 1, LLC AND THE GRAND PLAN 2, LLC
This DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY
OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution
and laws of the State of California (referred to herein as "City"), THE GRAND PLAN 1, LLC, a
California limited liability company ("GP1") and THE GRAND PLAN 2, LLC, a California limited
liability company ("GP2"). GPl and GP2 are collectively referred to herein, along with their
permitted successors and assigns, as "Owner".
RECITALS. The Agreement is entered into with reference to the following facts:
1.1 Purpose.
(1) The purpose of this Agreement is to facilitate the development of
approximately 9.79 acres of real property, located at the southeast corner of MacArthur Boulevard
and Main Street (the "Property"} as a mixed use project with for-sale residential condominiums and
office/commerciaUretail uses more particularly described in the definition of "Project" in
Section 2.43.
(2) The Property is described in Exhibit A and consists of an
approximately 2.04 acre parcel currently owned by GPl ("GPl Parcel"), and an approximately 6.68
acre parcel currently owned by GP2 ("GP2 Parcel") and an approximately .78 acre parcel which is
the subject of a contract to purchase by Owner (the "Fried Parcel"). The GPI Parcel and GP2 Parcel
are referred to in Exhibit A as the "Owner Parcel."
1.2 Code Authorization. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the economic risk of development, the
Legislature of the State of California adopted the Development Agreement Act which authorizes any
city to enter into binding development agreements establishing certain development rights in real
property with persons having legal or equitable interests in such property.
To ensure that the City remains responsive and accountable to its residents while
pursuing the benefits of development agreements contemplated by the Legislature, the City:
(i) accepts restraints on its police powers contained in this Agreement consistent with existing law,
only to the extent and for the duration required to achieve the mutual objectives of the Parties; and
(ii) to offset such restraints, seeks extraordinary and significant public infra structure facilities and
other supplemental benefits, as set forth in Section 5.1, in addition to those available through the
existing regulatory process.
1.3 Owner. Owner represents and warrants that it owns the Owner Parcel and is
under contract to purchase the Fried Parcel. The Property is currently a mix of vacant and occupied
uses.
1.4 Planning Commission -Council Hearings. On May 23, 2005, the Planning
Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code
Sections 65090 and 65091, held a public hearing to consider the Owner's application for this
Agreement. The Planning Commission recommended to the City Council of City that it execute this
DOCSOC/1110339x1 ]/24579-0001
75A-14
Agreement. On June 20, 2005, the City Council of the City of Santa Ana ("Council"), after
providing notice as required by law, held a public hearing to consider the Owner's application for
this Agreement.
1.5 Council Findings. The Council finds that this Agreement is consistent with
the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans,
policies and regulations of the City.
1.6 City Ordinance. On July 5, 2005, the Council adopted Ordinance
No. NS-2691 approving this Agreement. The ordinance becomes effective thirty (30) days thereafter
(the "Effective Date").
2. DEFINITIONS. In the Agreement, unless the context otherwise requires:
2.1 "Affiliate" means any entity of which not less than fifty percent (50%) is
owned by (i) Owner and/or its managing member and/or Nexus, in the case of Owner or (ii) Integral
or the principal shareholders of Integral, in the case of Integral.
2.2 "Agreement" means this Development Agreement, including all exhibits
attached hereto and all amendments and modifications thereto.
2.3 "Annual Review" means the annual review process as described in Section 6
of this Agreement.
2.4 "Applicable Rules" means all rules, regulations, ordinances and official
plans and policies of the City in force as of the Effective Date as included within the SAMC, this
Agreement and the Entitlements.
2.5 "Applicable Processing Fees and Charges" means all processing fees and
charges required by the City uniformly in connection with all new construction, including, but not
limited to, fees for land use applications, project permits, building applications, building permits,
grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street
vacations, certificates of occupancy and other similar permits. Applicable Processing Fees and
Charges shall not include Development Impact Fees or any exaction, impact fee, sharing fee or other
fee or charge that is in the nature of a Development Impact Fee.
2.6 "Avigation Easement" means the Avigation Easement attached hereto as
Exhibit E and incorporated herein by reference.
2.7 "Breach" is defined in Section 7.2.
2.8 "Cinema Tower" is defined Section 2.43.
2.9 "City Agency" means each and every agency, department, board,
commission, authority, employee, and/or official acting under the authority of the City, including
without limitation the City Council and the Planning Commission.
2.10 "City Attorney" means the City Attorney of the City.
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2.11 "City Council" means the City Council of the City which is the legislative
body of the City pursuant to Section 65867 of the California Government Code.
2.12 "City Manager" means the chief administrative officer of the City.
2.13 "Condo-Office Project" is defined in Section 2.44.
2.14 "Commencement of Construction" means the point in time when concrete
is being poured for foundations for a particular Element pursuant to a validly issued permit.
2.15 "Cooperative Agreement" means the Cooperative Agreement for Offsite
Improvements attached hereto as Exhibit C and incorporated herein by reference, which Cooperative
Agreement and the obligations hereunder with respect thereto, shall survive termination of this
Agreement.
2.16 "Default" is defined in Section 7.2.
2.17 "Development Agreement Act" means Article 2.5 of Chapter 4 of Division I
of Title 7 (Sections 65864 through 65869.5} of the California Government Code.
2.18 "Development Impact Fees" means impact fees, linkage fees, exactions, or
fair share charges or other similar impact fees or charges (whether collected as a condition to
issuance of demolition, grading and/or building permits, or otherwise) imposed by the City on and in
connection with new development pursuant to the Applicable Rules. If at any time following the
Effective Date it becomes legal for any of the foregoing fees or charges to be collected with property
taxes, then any such amounts collectible in such manner shall constitute Development Impact Fees
hereunder. Development Impact Fees do not include (a) Applicable Processing Fees and Charges,
(b) impact fees, linkage fees, exactions, assessments or fair share charges or other similar fees or
charges imposed by other governmental entities and which the City is required to collect or assess
pursuant to applicable law (e.g., school district impact fees pursuant to Government Code
Section 65995), or (c) increases in Development Impact Fees under the Applicable Rules, occurring
after the Effective Date but only if and to the extent any such increase does not exceed the amount of
such Development Impact Fee as of the Effective Date increased at a rate not to exceed the rate of
increase established by the "Construction Costs Index- Los Angeles" published by Engineering
News-Record or substitute index mutually agreed upon by the parties should that index be
discontinued, from the Effective Date to the date such Development Impact Fee is paid.
2.19 "Effective Date" means August 4, 2005, the date upon which the ordinance
approving this Agreement becomes effective.
2.20 "Element" is defined in 2.43.
2.21 "Entitlements" mean the City approvals for the Project granted pursuant to
the Applicable Rules as set forth in detail in the Final Environmental Impact Report for
Environmental Review No. 2004-02; Tentative Tract Map Nos. 2005-02, 2005-03, 2005-04 (County
Map Nos. 16621, 16622 and 16626); Variance Nos. 2005-05, 2005-07, 2005-10, and 2005-12;
Zoning Ordinance Amendment No. 2005-01 (creating Specific Development No. 76 aka SD-76);
Conditional Use Permit Nos. 2005-10, 2005-11, 2005-12, 2005-13 and 2005-15; and the "MacArthur
Place Master Plan" dated April 11, 2005, as each are conditioned in City Council Resolution
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No. 2005-064. The parties understand and acknowledge that the implementation of the Entitlements
will require Subsequent Development Approvals, the approval, conditional approval or rejection of
which shall be in accordance with the Applicable Rules. The word "Entitlements" shall include an
interior design standard for all Residential Units of 42 dBA CNEL for purposes of attenuating noise,
to be met with all of the unit's windows and doors closed. For each Element that incorporates
Residential Units, a qualified acoustical consultant shall conduct an analysis demonstrating
compliance with said interior noise design standard to be submitted to the City's Building and
Planning Safety Agency for review and approval prior to the issuance of Utility Release(s).
2.22 "Final Design Documents" means the final design documents for the Public
Art consistent with the Public Art Plans.
2.23 "Fried Portion" is defined in Section 2.43.
2.24 "Integral" means Integral Communities I, a Delaware Corporation.
2.25 "General Plan" means the General Plan of the City.
2.26 "Inclusionary Housing Fee" is defined in Section 5.1.8.
2.27 "In-Lieu Park Fee" is defined in Section 5.1.9.
2.28 "Litigation" shall mean any lawsuit or cross-action, including the legal action
and/or alternative dispute resolutions described in Section 7, challenging the validity of this
transaction or any Element thereof or the rights of either party hereunder and/or the rights of either
party to engage in the acts and transactions contemplated by this Agreement.
2.29 "Mezzanine Lender" means a lender who provides funds for the
construction of the Project, or parts thereof, and takes a security interest in an asset other than the
Property or Project such as the ownership interest of the Owner in the Property or Project.
2.30 "Mortgage" means any mortgage, deed of trust, pledge, encumbrance, sale
leaseback, or other security interest with respect to the Property and/or Project and/or the interests of
the Owner in the Property and or Project and/or this Agreement, granted to a lender not affiliated
with Owner, made in good faith and for fair value, encumbering all or any part of the Property and/or
Project or Owner's interest in the Property and/or Project and/or this Agreement, given by Owner for
the purpose of obtaining construction financing of the Project, or any portion thereof.
2.31 "Mortgage Parcel" is defined in Section 8.1.
2.32 "Mortgagee(s)" means (i) any institutional lender that is a mortgagee or
beneficiary under a deed of trust, (ii} a Mezzanine lender and/or (iii} any person or entity acquiring
fee title under a first or second mortgage who has delivered a Mortgagee Notice to the City or any
transferee of the above.
2.33 "Mortgagee Notice" is defined in Section 8.2.
2.34 "Nexus" means Nexus Development Corporation/Central Division, Inc., a
California Corporation.
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2.35 "Notice" and "Notice Period".are defined in Section 7.2.
2.36 "Owner" means GP1, GP2 and/or permitted assignees or transferees each
with respect to the part of the Property owned by it.
2.37 "Owners' Association(s)" means the association of owners of the
Residential Units ("Homeowners' Association(s)) and/or associations formed by the owners of the
retail portions and/or office portions of the Project formed for the purpose of governing and
controlling the common areas associated with each Element and the Project, as a whole.
2.38 "Parties" means collectively Owner and the City.
2.39 "Party" means any one of Owner or the City.
2.40 "Plaintiff 'means any party seeking relief or compensation through Litigation
whether as plaintiff, petitioner, cross-complainant or otherwise.
2.41 "Planning Commission" means the Planning Commission of the City and
the planning agency of the City pursuant to Section 65867 of the California Government Code.
2.42 "Periodic Review" is defined in Section 6.1.
2.43 "Project" is the development of the Property pursuant to the Entitlements,
with the following:
(1) Three (3) twenty-five (25) Story Towers consisting of two (2) towers
with three hundred fifty (350) for sale residential condominium units (each a "Lake Tower" or
together the "Lake Towers") and One (1) tower with one hundred fifty (150) for-sale residential
condominium units (the "Cinema Tower");
{2) A six (6) story tower consisting of fifteen (15) for-sale residential
condominium units on four (4) floors and approximately ten thousand (10,000) square feet of office
on two (2) floors (the "Condo/Office Project");
(3) A five (5) or six (6) story building containing two hundred seventy-
six (276) for-sale residential condominium units (the "Integral Project"); and
(4) Approximately thirteen thousand eight hundred seventy-one (13,871)
square feet of commercial space consisting of approximately eight thousand five hundred eighty
(8,580) square feet of restaurant ("Restaurant Portion") and approximately five thousand two
hundred ninety (5,290) square feet of retail (the "Fried Portion"). The Restaurant Portion and Fried
Portion are collectively referred to herein as the "Retail Project".
Each of the Lake Towers, the Cinema Tower, the Condo/Office Project, Integral Project and
the Retail Project are each an "Element."
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2.44 "Property" is legally described in Exhibit A.
2.45 "Public Art" is defined in Section 5.1.7.
2.46 "Public Art Fee" is defined in Section 5.1.7.
2.47 "Public Art Plan" is set forth in Exhibit B attached hereto and incorporated
herein by reference.
2.48 "Public Improvements" are described in Exhibit D attached hereto and
incorporated herein by reference.
2.49 "Reserved Powers" means the rights and authority excepted from this
Agreement's restrictions on the City's police powers and which are instead reserved to the City. The
Reserved Powers include the power to enact and implement rules, regulations, ordinances and
policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in
conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found
to be injurious or detrimental to the public health and/or safety; (b} are Uniform Codes; (c) are
required to comply with mandates under state and federal laws, rules and regulations (whether
enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of
a state or federal court; (d) relate to Applicable Processing Fees or Charges imposed and/or increased
after the Effective Date; (e) or relate to increases in Development Impact Fees occurring after the
Effective Date but only if and to the extent described in Section 2.17(c), or (f) are consented to by
Owner.
Project.
2.50 "Residential Unit(s)" means each of the for-sale residential units within the
2.51 "Retail Project" is defined in Section 2.43.
2.52 "Restaurant Portion" is defined in Section 2.43.
2.53 "SANG" means the Santa Ana Municipal Code.
2.54 "Signs" means the gateway entry signs described in Section 5.1.7.
2.55 "Subsequent Development Approvals" means those certain actions taken by
any City Agency after the Effective Date, in connection with the implementation of the Entitlements
or any approved modification of the Entitlements, or any requested minor modifications of the
Entitlements.
2.56 "Term" means the applicable period of time during which this Agreement
shall be in effect and shall bind the City and Owner, as described in Section 4.1.
2.57 "Uniform Codes" means those building, electrical, mechanical, fire and other
similar regulations of a City-wide scope which are based on recommendations of a multi-state
professional organization and become applicable throughout the City, such as, but not limited to, the
California Building Code, the California Electrical Code, the California Mechanical Code, or the
California Fire Code (including those amendments to the promulgated Uniform Codes which reflect
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local modification to unplement the published recommendations of the multi-state organization and
which are applicable City-wide)
2.58 "Utility Release(s)" means the formal approval of the City Building
Department, following its inspection, that Residential Unit(s) may be released for initial connection
to the electrical power system, water service system, gas service system, and sanitary sewer system.
Utility Release(s) do not include temporary utility service provided to any structure during
construction.
2.59 "Work(s) of Public Art" is defined in Section 5.1.7.
3. EXHIBITS. The following documents referred to in the Agreement are attached to
this Agreement and are identified as follows:
Exhibit
Designate Description
A Property Legal Description
B Public Art Plan
C Cooperative Agreement for Off-Site
Improvements
D Public Improvements
E Avigation Easement
F Lake Improvements
4. GENERAL PROVISIONS.
Referred to
in Section(s)
1.1.1(2),
2.44
2.46, 5.1.7
2.15, 5.1.1
2.47, 5.1.2
2.6, 5.1.5
5.1.12
4.I Duration of Agreement. The term of this Agreement shall be for ten (10)
years; provided, however that the Owner may request one two-year extension from the Executive
Director of the Planning and Building Safety Agency, which request shall not be unreasonably
denied and provided further that this Agreement shall automatically terminate upon the latter to occur
of (i) completion of construction of the entire Project or (ii) the granting of Certificates of Occupancy
(or similar permission to occupy) for the final Element of the Project and sale of all Residential units.
4.2 Assignment. Except as provided in Section 4.3 and prior to completion of
the Project or any Element thereof, Owner (and/or Integral with respect to the Integral Project, if
owner assigns the Integral Project to Integral) shall not have the right to transfer or assign this
Agreement with respect to all or any portion of the Property to any person, entity (public or private),
partnership, joint venture, firm or corporation unless the written consent of the City is first obtained,
acting in its reasonable discretion. In exercising its reasonable discretion, the City shall limit its
review to the development experience and financial capability of the proposed assignee or transferee
and shall approve any such assignment or transfer if the proposed assignee or transferee has financial
capability and development experience with respect to the Project equal to or greater than the
managing member of Owner (or Integral in the case of the Integral Project after assignment of the
Integral Project). Any transfer or assignment of rights under (i) Section 4.3, or (ii) requiring City
Council consent under this Section 4.2 shall include an assignment and assumption agreement
confirming that the duties obligations and liabilities arising from this Agreement with respect to all or
any portion of the Property shall be assumed by the transferee. To the extent permitted by law, the
rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or
7
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proceedings under any provisions of the Bankruptcy Act, and such assignment or transfer shall be, to
the extent permitted by law wholly void and of no force and effect unless such assignment or transfer
has been consented to by the City Council.
During the term of this Agreement, any approved assignee or transferee of the rights
under this Agreement shall observe and perform all of the duties and obligations of Owner contained
in this Agreement as such duties and obligations pertain to the portion of the Property transferred or
assigned. Any and all approved successors and assignees of Owner shall have all of the same rights,
benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is
subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to
persons for development by them in accordance with the provisions of this Agreement. Following a
permitted assignment herewith the assignor shall have no further rights or obligations with respect to
the Project or Element assigned, as the case may be.
4.3 Permitted Assignments. The prohibition against transfer of this Agreement
with respect to all or any portion of the Property as described in Section 4.2 above shall not apply to,
and the City hereby consents to, any transfer of this Agreement with respect to all or any portion of
the Property to:
a. Any business entities such as limited partnerships, limited liability
companies, joint ventures or other similar entities formed for the purpose of performing Owner's
obligations under this Agreement, provided Owner, Nexus and/or Curtis R. Olson retains operational
and managerial control of any such entity.
b. Nexus and/or Curtis R Olson or any Affiliate.
c. One or more Mortgagees.
d. Integral or any Affiliate thereof with respect to the Integral Project or
any single purpose entity created by Integral, or any Affiliate thereof, formed for the purpose of
constructing the Integral Project.
e. DF#1 LLC, David R. Fried, and/or A&D Properties, and/or any
company or corporation more than fifty percent (50%) owned by DF#1 LLC, David R. Fried and/or
A&D Properties.
f. Buyer's of Residential Units.
g. Owners' Association(s) with respect to common areas.
h. Tenants, ground lessees and/or purchasers of the retail and/or office
spaces.
4.4 Amendment or Cancellation of Agreement. This Agreement may be
amended from time to time or cancelled by the mutual consent of the parties, but only in the same
manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term
"Agreement" or "Development Agreement" as used herein shall include any amendment properly
approved and executed.
DOCSOCl1 l 10339v 11/24579-0001
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4.5 Hold Harmless. Owner agrees to and shall hold City, its officers, agents,
employees, consultants, special counsel, and representatives harmless from liability for damages,
restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from construction
activities with respect to the Project by the Owner or their contractors, subcontractors, agents,
employees, or other persons acting on their behalf; the Owner further agrees to provide a defense on
behalf of the City, including fees and costs for special counsel to be selected by the City and
approved by the Owner, regarding any Litigation. Notwithstanding the above, in the event of any
Litigation the parties hereby agree to affirmatively cooperate in defending said action.
4.6 Binding Effect of Agreement. The burdens of the Agreement bind, and the
benefits of the Agreement inure, to the parties' successors in interest.
4.7 Relationship of the Parties. The contractual relationship between City and
Owner arising out of the Agreement is one of independent contractor and not agency. This
Agreement does not create any third party beneficiary rights.
4.8 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered
in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
If to City, to:
City Manager
City of Santa Ana
20 Civic Center Plaza M-31
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6954
and
City Attorney
City of Santa Ana
20 Civic Center Plaza M-29
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
If to Owner, to:
Cory W. Alder
President, Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
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and
Matt Kaufinan
Senior Vice President, Development and Operations Nexus Companies
1 MacArthur Plaza, Suite 300
Santa Ana, California 92707
telefacsimile (714) 546-5660
and
Thomas P. Clark, Jr., Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
telefacsimile (949) 725-4100
and
R. Michael Joyce, Esq.
Allen Matins beck Gamble & Mallory LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
telefacsimile (949) 553-8354
A party may change its address by giving notice in writing to the other party.
Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and
transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed
as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given twenty-four (24) hours after the time
set forth on the transmission report issued by the transmitting facsimile machine, addressed as set
forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city
holidays shall be excluded.
5. DEVELOPMENT OF THE PROPERTY.
5.1 Owner Obligations. In consideration for the City entering into this
Agreement and performing its obligations hereunder and in order to effectuate the premises, purposes
and intentions set forth in this Agreement and the Development Agreement Act, Owner hereby
agrees to the following obligations.
5.1.1 Cooperative Agreement. The Owner and the City, together with
other parties, have concurrently executed the Cooperative Agreement. Owner agrees to comply in all
respects with its obligations under said Cooperative Agreement.
5.1.2 Public Improvements. Owner shall construct the Public
Improvements prior to the issuance of a Certificate of Occupancy for the first Element unless
otherwise approved by the Director of Public Works.
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5.1.3 Phasing. The Owner acknowledges and agrees that the
Commencement of Construction of the Integral Project cannot commence until the Commencement
of Construction has occurred on either of the Lake Towers or the Cinema Tower.
5.1.4 FAA Approval. Owner shall obtain and maintain, during the term of
this Agreement, any and all necessary approvals from the FAA for the Project. Should such
approvals lapse, and not be reinstated or reapproved prior to the issuance of a building permit for
either of the Lake Towers and/or Cinema Tower, the City shall have the right to delay the issuance of
building permits for either of the Lake Towers and/or Cinema Tower until such approvals are
reinstated or reapproved.
5.1.5 Avigation Easement. The Owner shall, prior to issuance of the ftrst
building permit for the Project, execute the Avigation Easement in favor of the City. Owner and City
may make non-substantive alterations in the Avigation Easement prior to its execution, to the extent
such changes are approved by Owner and City (as to content by the City Manager, and as to form by
the City Attorney).
5.1.6 Limit on Fast Food and Take Out Restaurants. At no time during
the Term shall the Project include retail space which is devoted to "fast food" and "take out"
restaurants. For purposes of this Agreement, a restaurant shall not be deemed to be a "fast food" or
"take out" restaurant if it provides sit-down dining areas and primary table service for ordering and
delivering meals and beverages, and take out service ancillary to such services.
5.1.7 Development, Construction and Completion of Public Art. Owner
shall include within the Project, (i) two (2) gateway entry signs ("Signs"), and (ii) a single or grouped
permanent work(s) of public art ("Work(s) of Public Art") consistent with the Public Art Plan
( ollectively referred to herein as the "Public Art") at a cost not to exceed Five Hundred Thousand
Dollars ($500,000) ("Public Art Fee").
5.1.8 Inclusionary Housing Fee. Owner shall pay to the City the sum of
Three Thousand Dollars ($3,000) for each Residential Unit contained in each Element ("Inclusionary
Housing Fee"). The Inclusionary Housing Fee shall be paid with respect to each Element containing
Residential Units at such time as 75% of the Residential Units within such Element have received
Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including but
not limited to preparation of one or more elements of its general plan or for zoning amendments),
conceptual design, final design, bid preparation, award of bid, property appraisal, property
acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated
existing affordable housing in the City.
5.1.9 In-Lieu Park Development Fee. The Owner shall pay an in-lieu
park development fee in the amount of Two Million Six Hundred Thousand Dollars ($2,600,000)
with respect to the Residential Units within the Project ("In-Lieu Park Development Fee") payable
for each Element in which Residential Units are located at such time as 75% of the Residential Units
within such Element have received Utility Releases, based on a fraction the numerator of which is the
total number of Residential Units in an Element and the denominator of which is the total number of
Residential Units in the Project.
The City shall use not more than twenty five percent (25%) of the In-lieu Park
Development Fee for the acquisition of the land for parks and the construction of capital
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DOC SOC/ 1 110339v 11 /24579-0001
75A-24
improvements and deferred maintenance at existing pazks at any location within the City and not less
than seventy five percent (75%) of the In Lieu Park Development Fee shall be utilized by the City in
the Quadrant of the City (as set forth in the City's Park A & D Fee Program) in which the Project is
located. If a special tax district, benefit assessment district or other obligation is created for park
purposes, inclusionary housing purposes and/or to fulfill any obligation under the Cooperative
Agreement such district or other obligation shall not include the Property.
5.1.10 Covenants, Conditions, and Restrictions. Covenants, Conditions,
and Restrictions (CC&R's) must be provided and approved by the Planning and Building Agency's
Executive Director for the Project prior to the issuance of the first building permit. Such CC&R's
must contain at a minimum, the following:
(1) To the extent permitted by law, no more than four residents
shall occupy a Residential Unit with less than three (3) bedrooms and no more than five (5) residents
shall occupy a Residential Unit with three (3) bedrooms.
(2) No home occupancy shall be permitted in a unit, except in
accordance with Section 41-192 et seq. of the Santa Ana Municipal Code.
(3) Assignment of repair of perimeter walls and common azeas,
including landscaping, will be specified in the CC&R's in the event of damage.
(4) Patios and balconies shall not be utilized for the storage of
household items, except (A) furniture designed for outdoor use, (B) barbecues, and (C) plants
including plant racks and stands.
(5) Disclosure and release: CC&R's shall provide notice to
prospective owners of the urban character of the City and this area, including but not limited to the
permitted uses of the property and buildings in the immediate area of the development (e.g.,
MacArthur Place, Griffin Towers, John Wayne (SNA) Airport, and surrounding property zoned
and/or devoted to high density residential and commercial use), and shall provide a release of claims
against the City by the buyer of each Residential Unit which may arise from or relate to the disclosed
matters.
(6) Terms and Content:
i. CC&R's are to be in effect for an initial period of
ninety-nine years and then automatically expanded for successive one hundred year periods unless
terminated by the joint consent of the City and not less than seventy five percent of those entitled to
vote.
ii. Any proposed material modifications to the CC&R's
which effect the City's interests will require approval by the Executive Director of Planning and
Building Safety Agency.
5.1.11 Parking Structure Easement. Owner shall assign any and all rights
it has to use the "Teacher's" parking structure located on Assessor's Parcel Number 411-081-22,
together with any transfer or assignment of the Restaurant Portion.
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5.1.12 Lake Improvements. Owner shall use commercially reasonable
efforts to obtain approval of the Hutton Centre Owners' Association to install the lake improvements
specified in Exhibit F to this Agreement.
5.1.13 Use of "City of Santa Ana." All advertising, stationary and other
identification of the Project controlled by Owner shall identify it as being located in the "City of
Santa Ana" or "Santa Ana." The postal address of the project shall at all times be denominated as
"Santa Ana, California."
5.1.14 Compliance With Governmental Requirements. Owner shall carry
out the design and construction of the Project in substantial conformity with the .Applicable Rules
and all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the
United States, the State of California, the County of Orange, or any other political subdivision in
which the Property is located, and of any other political subdivision, agency, or instrumentality
exercising jurisdiction over the City, the Owner or the Property, including all applicable federal,
state, and local occupation, safety and health laws, rules, regulations and standards, applicable state
and labor standards, and all applicable disabled and handicapped access requirements, including,
without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government
Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental
Requirements"}.
5.1.15 Obligation to Submit Working Drawings and Commence
Construction. Owner shall submit building permit applications for the first Element of the Project
to the City's Building Department on or before the third (3`~} anniversary date of the Effective Date
and Commencement of Construction of the fast phase Element shall occur on or before the sixth (6`'')
anniversary date of the Effective Date.
5.2 City Obligations. In consideration for Owner entering into this Agreement
and performing its obligations hereunder and in order to effectuate the purposes and intentions set
forth in this Agreement and the Development Agreement Act, the City hereby agrees during the
Term as follows:
5.2.1 Vested Rights to Develop. Owner is hereby granted the vested right
to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved
Powers.
5.2.2 Non-application of Changes in Applicable Rules. Any change in,
or addition to, the Applicable Rules, including, without limitation, any change in the General Plan,
zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after
the Effective Date, including, without limitation, any such change by means of ordinance, initiative,
referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason
whatsoever, however denominated, and adopted by the City Council, Planning Commission or any
City Agency, or by the electorate, as the case may be, which would, absent this Agreement,
otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not
be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or
are otherwise expressly allowed by this Agreement. In the event that state or federal laws or
regulations enacted after this Agreement has been entered into, prevent or preclude compliance with
one or more provisions of this Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal laws or regulations.
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5.2.3 Special Taws and Assessments. Owner shall have the right, to the
extent permitted by law to protest, oppose and vote against any and all special taxes, assessments,
levies, charges and/or fees imposed with respect to any assessment districts, Mello-Roos or
community facilities districts, maintenance districts or other similar districts.
5.2.4 Agreed Changes and Other Reserved Powers. This Agreement
shall not preclude application to the Project of rules, regulations, ordinances and officially adopted
plans and policies in conflict with the Applicable Rules where such additional rules, regulations,
ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner
and the City in accordance with the requirements of Section 6.7 of this Agreement or (b) result from
the Reserved Powers.
5.2.5 Subsequent Development Approvals. The City shall require Owner
to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or
the Reserved Powers. City hereby agrees that it shall .condition any Subsequent Development
Approvals based only on the Applicable Rules and/or Reserved Powers.
5.2.6 Moratoria. In the event an ordinance, resolution or other measure is
enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount,
timing, sequencing, or phasing of the development or construction of the Project on all or any part of
the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or
other measure shall not apply to the Project, Property or this Agreement, unless such changes are
adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision, of this
Agreement.
5.2.7 Timing of Development. The parties acknowledge that Owner
cannot at this time predict when or if the Property will be developed. Such decisions depend upon
numerous factors which are not within the control of Owner such as market orientation and demand,
interest rates, absorption, completion and other similar factors. Because the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of
the parties therein to provide for the timing of development resulted in a later adopted initiative
restricting the timing of development to prevail over such parties' agreement, it is the parties' intent
to cure that deficiency by acknowledging and providing that except as provided in Section 5.1.3, and
subject to Section 5.1.15, Owner shall have the right to develop the Property at such rate and at such
time as Owner deems appropriate within the exercise of its subjective business judgment.
5.2.8 Development Impact Fees. Except as to increases permitted under
Section 2.17(c), Development Impact Fees imposed by the City with respect to the Project shall be
only those Development Impact Fees in force and effect as of the Effective Date.
5.3 Cooperative Agreement. The City shall comply in all respects with its
obligations under the Cooperative Agreement.
6. ANNUAL REVIEW.
6.1 City and Owner Responsibilities. City shall, at least every twelve (12)
months during the term of this Agreement, review the extent of good faith substantial compliance by
Owner with the terms of this Agreement ("Periodic Review"). Pursuant to Government Code
14
DOCSOC/11 ]0339x11/24579-0001
75A-27
Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its
good faith compliance with the terms of the Agreement at the Periodic Review.
6.2 Review Letter. If Owner is found to be in compliance with the Agreement
after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the
"Letter") stating that based upon information known or made known to the City Council, the City
Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner
is not in default. Owner may record the Letter in the Official Records of the County of Orange.
6.3 Failure of Periodic Review. City's failure to review at least annually
Owner's compliance with the terms and conditions of this Agreement shall not constitute or be
asserted by any party as a breach of the Agreement by Owner or City.
DEFAULT.
7.1 Events of Default by Owner. Owner is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by Owner to the City in conjunction with the Project is false or proves to have been false in any
material respect when it was made;
(2) A finding and determination made by the City following a Periodic
Review under the procedure provided for in Government Code Section 65865.1 that upon the basis
of substantial evidence the Property Owner has not complied in good faith with one or more of the
terms or conditions of this Agreement;
(3) Failure to substantially comply with Governmental Requirements;
hereof.
(4) The failure of Owner to comply with the requirements of Section 5.1
(5) Any other event, condition, act or omission of Owner which
materially interferes with the intent and objectives of this Agreement.
7.1.2 Events of Default by City. City is in Default under this Agreement
upon the happening of one or more of the following events or conditions following notice and a
failure to cure as set forth in Section 7.2:
(1) If a written warranty, representation, or statement made or furnished
by City to the Owner in conjunction with the Project is false or proves to have been false in any
material respect when it was made;
hereof.
(2) Failure of the City to comply with the provisions of Section 5.2.
(3) Any other event, condition, act or omission of City Agency which
materially interferes with the intent and objective of this Agreement, including, without limitation,
the construction of the Project.
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7.2 Procedure upon Breach. Upon the occurrence of any of the events
described in Sections 7.1 and/or 7.1.2,and prior to termination (a "Breach"), the non-defaulting party
shall give the defaulting party written notice specifying the nature of the alleged Breach and, when
appropriate, the manner in which said Breach may be satisfactorily cured ("Notice"). If the
defaulting party fails to cure within thirty (30) days after receipt of Notice ("Notice Period"), or in a
case where a Breach cannot be reasonably cured within such Notice Period, fails to commence such
cure within the Notice Period andlor, thereafter, fails to diligently pursue such cure to completion
then the defaulting, party is in "Default". Failure or delay in giving Notice shall not constitute a
waiver of any Breach, nor shall it change the time of Default.
7.3 Termination. This Agreement may be terminated by either party in the event
of Default by the other. Owner's obligation to pay the fees set forth in Sections 5.17, 5.18 and 5.19
of this Agreement shall survive termination, if termination is due to Owner's Default.
7.4 Damages and Remedies.
(1) In no event shall either party be entitled to any damages against the
other upon termination of this Agreement in the absence of a Default.
(2) The Owner shall not be liable for any general, special or
compensatory damages to City or the Owner's Default hereunder; provided however Owner shall be
responsible for any Default under Sections 5.1.7, 5.1.8 and/or 5.1.9 but only to the extent of the fees
set forth therein, without penalty, but including interest from the date such fees were due until paid at
the same rate of interest imposed by the Orange County Superior Court as post judgment interest.
(3) The City shall not be liable for any general, special or compensatory
damages to Owner or to any successor or assignee or transferee of Owner for the City's Default
hereunder.
(4) In the event of the failure of the obligation described in
Section 5.1.15, the City's sole remedy shall be termination.
7.5 Institution of Legal Action. In addition to any other rights or remedies, and
except as provided in Section 7.4, either party may institute legal action to cure, correct, or remedy
any Default, terminate or confirm or reject the propriety of a termination, specifically enforce any
covenants or agreements set forth in the Agreement, or enjoin any threatened or attempted violation
of the Agreement; or to obtain any remedies consistent with the purpose and term of the Agreement.
Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or
in the Federal District Court in the Central District of California, Southern Division.
7.6 Multiple Owners. Because the Project may be developed by Owner or by
one or more assignees of Owner, the Parties acknowledge and agree that the provisions of this
Section 7 relating to any Default by Owner with respect to its obligations, and the City's enforcement
rights with respect thereto, including any rights of termination and the limited rights to seek damages,
shall relate only to the portion of the Property actually owned by the specific Owner whose act or
omission constituted such Default. Other portions of the Property owned by a different non-
defaulting Owner (provided such non-defaulting Owner is not in Default hereunder with respect to its
Property) and/or any other permitted assignee provided such permitted assignee(s) are not in Default
hereunder with respect to its/their Property shall not be affected nor shall the rights of such non-
16
DOC SOC/ 1110339v 1 1 /245 79-000 1
75A-29
defaulting Owner or other assignee(s) hereunder be impaired by any such Default relating to the
portion of the Property not owned by it.
7.7 Alternative Dispute Resolution. Owner may elect in its sole and absolute
discretion, to have any legal disputes described herein determined by arbitration in Santa Ana,
California, before a sole arbitrator in accordance with the laws of the State of California. The
arbitration shall be administered by JAMS pursuant to its Streamline Arbitration Rules and
Procedures. Judgment on the "award", as defined in Code of Civil Procedure Section 1283.4, may be
entered in any court having jurisdiction. Each party shall bear its own costs.
ARBITRATION NOTICE: BY INITIALING IN THE SPACE BELOW EACH PARTY IS
AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF
OR RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL BINDING
ARBITRATION, AND EACH PARTY IS GIVING UP ANY RIGHTS EACH SUCH PARTY
MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE BELOW EACH PARTY IS GIVING UP ITS JUDICIAL RIGHT
TO DISCOVERY AND APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE
COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. THE PARTIES
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
EACH PARTY HAS READ AND UNDERSTANDS THE FOREGOING AND AGREES TO
SUBMISSION OF ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR
RELATING TO THIS AGREEMENT TO NEUTRAL BINDING ARBITRATION IN ACCORDANCE
WITH THIS AG . EMENT.
>~
Owner City
The "award" shall be made by the arbitrator within sixty {60) days after the matter has been
submitted to arbitration.
Prior to the appointment of the arbitrator and within ten (10) days of the date of
commencement of the arbitration the parties shall submit the dispute to JAMS for mediation. The
parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of
neutrals, and then promptly scheduling the mediation proceedings. The parties covenant that they
will participate in the mediation in good faith, and that they will share equally in its costs. All offers,
promises, conduct and statements, whether oral or written, made in the course of the mediation by
any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS
employees are confidential, privileged and inadmissible for any purpose, including impeachment, in
any arbitration or other proceeding involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its
use in the mediation. If the dispute is not resolved within thirty (30) days from the date of the
submission of the dispute to mediation (or such later date as the parties may mutually agree in
writing) the administration of the arbitration shall proceed forthwith while the mediation may
continue, if the parties so agree. Unless otherwise agreed by the parties, the mediator shall be
disqualified from serving as arbitrator in the case. Pendency of the mediation shall not preclude a
party from seeking provisional remedies in aid of the arbitration from a court of appropriate
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jurisdiction, and the parties agree not defend against any application for provision relief on the
ground that a mediation is pending.
7.8 Interim Relief. In the event that Project, or any part, is delayed as a result of
any action under Section 7.5 and/or Section 7.7, Owner's obligation to pay fees under Sections 5.1.7,
5.1.8 and/or 5.1.9 shall be suspended until such action is resolved in favor of continuing the Project.
7.9 Entitlements Survive Termination. The parties acknowledge that the
Entitlements survive termination of this Agreement unless and until the City takes action, within its
police power authority to modify and/or revoke all or any portion of such Entitlements, or unless and
until termination of the Entitlements occurs automatically, if ever. Accordingly, if this Agreement is
terminated and, provided that the Entitlements are not modified or revoked in accordance with the
City police power, the City shall not collect and/or impose the fees set forth in Sections 5.1.7, 5.1.8
and/or 5.1.9 in connection with development pursuant to the Entitlements.
7.10 Miscellaneous.
(1) City does not waive any claim of defect in performance by Owner, if
on Periodic Review the City does not propose to modify or terminate this Agreement.
(2) Non-performance shall not be excused because of a failure of a third
person.
(3) Adoption of a law or other governmental activity making
performance by either party unprofitable or more difficult or more expensive does not excuse the
performance of the obligation by the other party.
8. MORTGAGEE PROTECTIONS
8.1 Right to Owner/Notice/Multiple Mortgagees. Owner shall have the
absolute right to encumber Owner's right, title and interest in, to and under this Agreement and the
Property pursuant to one or more Mortgages. Because certain portions of the Project may be
developed by one or more assignees, the Parties acknowledge and agree that different Mortgages
may encumber the Property and that there may be a separate Mortgage in effect with respect to
separate parcels within the Property. It is the intention of the Parties that the rights and protections
granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such
Mortgagee's Mortgage is a lien (each a "Mortgage Parcel"), and to the rights, privileges and
obligations under this Agreement relating to such Mortgage Parcel.
8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure.
With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the
City delivers any Notice or demand to Owner with respect to any Breach by Owner under this
Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall
deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect
that Owner has failed to cure a Breach ("Mortgagee Notice"); provided that Owner or Mortgagee has
provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights
granted by the City are concerned) have the right, at its option, within thirty (30) days after the
receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the
DOCSOC/1110339v 11 /24579-0001
18
75A-31
mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented
from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall
be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Agreement shall
be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or
any portion thereof, without first having expressly assumed Owner's obligations to the City by
written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be
deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or
remedy a Owner default which requires title and/or possession of the Site (or portion thereof) if and
to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to
obtain title and/or possession and thereafter the Mortgagee diligently pursues such proceedings to
completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults
shall be waived.
8.3 Mortgagee Not Obligated Under the Agreement. Unless a Mortgagee
expressly assumes Owner's Obligations to the City in accordance with 8.2 above, no Mortgagee shall
in any way be obligated by the provisions of this Agreement, nor shall any covenant or any other
provision in this Agreement be construed so to obligate such Mortgagee. Nothing in this Agreement
shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel
to any uses or to construct any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
8.4 No Liability. No Mortgagee shall have any personal liability beyond its
interest in the Mortgage Parcel acquired by it through enforcement of its Mortgage for the
performance or payment of any covenant, liability, warranty or obligation hereunder, and the City
agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for
payment or discharge of any such covenant, liability, warranty or obligation.
8.5 No Amendment or Termination. This Agreement shall not, without the
prior written consent of all Mortgagees holding Mortgages on each portion of the Property to be
affected thereby, be amended so as to (a) terminate this Agreement prior to the expiration of the
Term hereof (except as provided in Section 8.4 above with respect to such Property); or (b) change
any provision of this Agreement which, by its terms is specifically for the benefit of Mortgagees or
specifically confers rights on Mortgagees. No amendment to this Agreement affecting the Property
or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such
Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest
should it become a party hereto.
8.6 Condemnation or Insurance Proceeds. Nothing in this Agreement shall
impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and/or
condemnation proceeds which are otherwise payable to Owner granting such Mortgage.
8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the
provisions contained in this Agreement applicable to any of the Mortgage Parcel shall be binding on
and for the benefit of any person who acquires title to the property, or any part thereof, by
foreclosure under a Mortgage or transfer by deed in lieu.
8.8 Delegation to Mortgagee. Owner may delegate and/or assign irrevocably to
any Mortgagee the non-exclusive authority to exercise any or all of Owner's obligations and/or rights
hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City
19
DOCSOC/ 1110339v 11124579-0001
75A-32
unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a
written instrument effecting such delegation. Such delegation of authority may be effected by the
terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or
conformed copy of said Mortgage, together with written notice specifying the provisions therein
which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice
of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage
Parcel of any of its obligations hereunder with respect to such Mortgage Parcel.
8.9 No Obligation to Cure. Nothing herein contained shall require any
Mortgagee to cure any default of Owner referred to above.
8.10 Separate Agreement. The City shall, upon request, execute, acknowledge
and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense
of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees,
agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs
incurred by City in reviewing same.
8.11 Estoppel Certificate. Within thirty (30) days after written request therefore,
the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage
and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance
satisfactory to Owner and such Mortgagee ("Estoppel Certificate"). The City hereby agrees to
reasonably cooperate in including in any such Estoppel Certificate from time to time any provision
which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the
Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable
means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the
non-applicability of the provisions of this Agreement to such Mortgagee as it relates to parcels other
than the Mortgage Parcel, and/or such other terms and provisions as are customarily required by
Mortgagees (taking into account the customary requirements of their participants, syndication
partners or ratings agencies) in connection with any such financing; provided, however, that no such
Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase
any obligations of City under this Agreement.
8.12 Conflicts. If there is any conflict between this Section 8 and any other
provision contained in this Agreement, this Section 8 shall control
9. MISCELLANEOUS PROVISIONS.
9.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one
signer of this Agreement, their obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes
the entire understanding and Agreement of the parties with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties
respecting this Agreement. All waivers of the provision of this Agreement must be in writing and
signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must
be in writing signed by the appropriate authorities of City and Owner, in a form suitable for
recording in the Official Records of Orange County, California. Within ten (10) days following the
effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records
20
DOCSOC/1110339v] 1/24579-0001
75A-33
of Orange County, California. Upon the completion of performance of this Agreement with respect
to the completion of construction of each Element or its revocation or termination, an appropriate
Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner
and City shall be recorded in the Official Records of Orange County, California.
9.3 Project as a Private Undertaking. It is specifically understood by the
parties that: (a) the Project is a private development for purposes of Government Code Section 65864
et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any
improvements to the Property or in connection with the Project; and (c) Owner shall have the full
power and exclusive control of the Property subject to the obligations of Owner set forth in this
Agreement.
9.4 Incorporation of Recitals. The Recitals set forth 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. Unless another standard is specifically given, where the consent or
approval of a party is required in or necessary under this Agreement, the consent or approval shall
not be unreasonably withheld.
9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each
other in good faith, and assist each other in the performance of the provisions of this Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
9.9 Conflicts of Law. In the event that state or federal laws or regulations
enacted after this Agreement has been entered into or the action or inaction of any other affected
governmental jurisdiction prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps, or permits approved by the Ciry, 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 Enforced Delay; Extension of Time of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be deemed to
be in Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to Litigation; inability to secure necessary labor materials or tools;
or inability to secure debt and/or equity financing on commercially reasonable terms or withdrawal
21
DOCSOC/1110339v 11 /24579-000 ]
75A-34
of such financing not caused by any act or omission of Owner; war; insurrection; strikes; lockouts;
riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; building moratoria; unusually severe weather; acts or omissions of the other
party; acts or failures to act of any other public or governmental agency or entity (other than the acts
or failures to act of the City which shall not excuse performance by the City); or any other causes
beyond the control or without the fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause
shall be for the period reasonably attributable to the enforced delay and shall commence to run from
the time of the commencement of the cause. Times of performance under this Agreement may also
be extended in writing by the mutual agreement of the Parties.
9.11 Recording. The City Clerk shall cause a copy of this Agreement to be
recorded with the Office of the County Recorder of Orange County, California, within ten (10) days
following the Effective Date of this Agreement.
9.12 Subdivision of Project. The City agrees that, pursuant to the Applicable
Rules, Owner may modify the boundaries of existing lots of the Property within the Property by
means of lot line adjustments. This Section 9.12 shall survive termination of this Agreement.
9.13 Severability. If any provisions, conditions, or covenants of this Agreement,
or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable,
the remainder of this Agreement or the application of such provision, condition, or covenant to
persons or circumstances other than those as to whom or which it is held invalid or unenforceable
shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
9.14 Waiver. No waiver of any provision of this Agreement shall be effective
unless in writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and such waiver refers expressly to this Section. No waiver of any
right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or
remedy in respect of any other occurrence or event.
9.15 No Personal Liability. No board member, councihnember, official or
employee of the City shall be personally liable to Owner nor shall any individual, principal, partner,
member or shareholder of Owner be personally liable to City in the event of any default or breach.
9.16 Conditions of Discretionary Approvals. Entitlements shall be governed by
the terms of the approvals of such Entitlements and, in no event, shall such Entitlements be affected
by the termination, rescission, revocation, Default or expiration of this Agreement.
9.17 Precedence. In the event of a conflict between the terms of this Agreement
and the terms of the Entitlements, the terms of this Agreement shall prevail.
22
DOC SOC/ 1 110339v 11 /24579-0001
75A-35
IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa
Ana and by Property Owner.
Dated this ~ day o , 200
B~
ATTEST:
PATRiC/A E H~ALY
CLERK 0'F 1'r.~ COUNC/L
DOCSOC/ 1110339v 11 /24579-0001
THE CITY OF A AN
By
DAVID N. REAM
City Manager
THE GRAND PLAN I, LLC
A California L' ited Liability Company
By 'M~ ~fl .~-.~--
Name (u.Wi S tZ • G l5o v~
Its ~ P_vln ~~
THE GRAND PLAN 2, LLC
A California "Lim/i~ted Liability Company
By ~~v ~
Name
Its MtVr-Ixa/
23
75A-36
Approved as to Form:
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange } SS.
On July 21, 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
.,,t CLAt1DIA M. FERt~u~n~:~~~-'
Commission ~ 1336874
j'+~' Notary P~blia - Ca"~'on~(a
Orange County I
MYComm. Fires Jan 25,2006
U personally known to me
^ proved to me on the basis of satisfactory
evidence
to be the person( whose name(~s~~s are
subscribed to the within instrument and
acknowledged to me that-l~shefthey executed
the same in l~is~herftlfeir authorized
capacity(ies); and that by --~her~their-
signature(~-on the instrument the persop(s~ or
the entity upon behalf of which the persot~
acted, executed the instrument. ~
S my hand and official seal.
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it mayprove valuable to persons relying on the document
And could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
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Top
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On this day of 200_, before me,
a Notary Public in and for said state, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that
executed the within instnunent, known to me to be the person who executed the within instrument on
behalf of the municipal corporation therein named, and acknowledged to me that such municipal
corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council.
WITNESS my hand and ofFcial seal.
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
NOTARY PUBLIC
On this ~ day of ~ un L 200 `.~ before me,
h1tr~1Cu~ !; • l4f u firxtn, a Notary Public in and for said state, personally appeared
C~,• i ~ ~ s (L. o l syv. ,personally known to me (or proved to me on the basis of
satisfactory evidence) to be the x'1'1 a n'!~e/" of Tlit. ~i'Gn d /~/Ct ~'I /, L~L.C.', the
e~ i ~~ that executed the within instrument, known to me to be the person who
executed a within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to its
bylaws or a resolution of its Board.
WITNESS my hand and official seal.
MATTt1EW 8. KAU
cow. s t~ss7o
NorNer nNUC. cK~~
owwce counn
comm. Exp. ,lU1.Y 22 Zoos
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
~' %~~~~
NOTARY PUBLIC
on this ~3 0 ~h day of J v r~ -~ 200. before me,
~'1k.41-ticw R . ~iq a a Notary Public in and for said state, personally appeared
~~~+5 OISo--~ ,personally known to me or proved to me on the basis of
satisfa tpry evidence) to be the -G/!'1 ~/ of ~~ G~Gn~ /d/G~/7 2, Gam', the
8/1 i that executed the within instrument, known to me to be the person who
DOCSOC/1110339v 11 /24579-0001 24
75A-38
executed the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument pursuant to its
bylaws or a resolution of its Board.
WITNESS my hand and official seal.
MATTHEW B. KALIF
caw. ~ silo
«arMrnNUC• cKx~oiwx
aw-~ couemr
Comm. Exp. ,IDLY 22 2008
DOCSOC/ 111033 9v 11/24579-0001
25
~ :'/.~~
NOTARY PUB IC
75A-39
EXHIBIT A
PROPERTY DESCRIPTION
OWNER PARCEL
PARCELS 1, 2, 3 & 5 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 262,
PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY
THAT PORTION OF FRACTIONAL SECTION 31, IN TOWNSHIP 5 SOUTH, RANGE 9 WEST,
BEING A PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN, IN THE FINAL
DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN
CASE NO. 1192, ENTERED SEPTEMBER 12, 1868 IN BOOK B, PAGE 410 OF JUDGEMENTS
OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET
WIDE, SAID CENTER LINE BEING THE WESTERLY LINE OF SAID SECTION 31, SAID
POINT BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM THE
INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT
AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7, RECORD
OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY;
THENCE ALONG COURSES 1, 2 AND 3 DESCRIBED IN A FINAL ORDER OF
CONDEMNATION, A COPY OF WHICH WAS RECORDED APRIL 9, 1964 IN BOOK 6998,
PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE FOLLOWING COURSES
AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET; NORTH 46 DEG. 28' 17" EAST,
35.36 FEET; SOUTH 88 DEG. 31` 41" EAST, 127.00 FEET TO THE INTERSECTION WITH A
LINE THAT IS PARALLEL WITH AND 202.00 FEET EASTERLY, MEASURED AT RIGHT
ANGLES FROM SAID CENTER LINE OF MAIN STREET; THENCE SOUTH 1 DEG. 28' 19"
WEST, ALONG SAID PARALLEL LINE 160.00 FEET; THENCE NORTH 88 DEG. 31' 41"
WEST, AT RIGHT ANGLES TO SAID CENTER LINE, 202.00 FEET TO SAID CENTER LINE;
THENCE NORTH 1 DEG. 28' 19" EAST, ALONG SAID CENTER LINE, 135.00 FEET, MORE
OR LESS, TO THE POINT OF BEGINNING.
PARCEL 1 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT NO.
01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA,
RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF OFFICIAL
RECORDS.
FRIED PARCEL
PARCEL 2 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE
ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO.
20010566652, OF OFFICIAL RECORDS.
A-1
DOCSOC/1110339v 11 /24579-0001
75A-40
EXHIBIT B
PUBLIC ART PLAN
The Work(s) of Public Art shall be designed, constructed and installed by the Owner;
provided however, that the Signs shall be designed by the City at its sole expense.
2. A Final Design Plan consistent herewith, which proposes specific Work(s) of Public Art for
specific locations and/or applications, shall be submitted to the City's Planning Commission
within thirty sixty five (365) days from the issuance of the first building permit for the
Project. Owner shall install the Public Art not later than the issuance by the City of the first
certificate of occupancy for any Element.
3. The Public Art should invite participation and interaction, inspire, add local meaning,
interpret the community by revealing its culture or history, and/or capture or reinforce the
unique character of the new place.
4. The Public Art should be constructed using durable materials and fmishes including but not
limited to stone or metal.
5. The Work(s) of Public Art should be comprised of a single or grouped permanent work(s) at
a prime location visable to the public and sited to complement features such as plaza or
architectural components so that the Public Art is an integral part of the development site.
6. No Public Art shall include advertising of any type, including but not limited to products,
services or businesses.
All Public Art shall be properly maintained at all times, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
$. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public
Work(s) of Art to one or more Owners' Association(s). The City shall be solely responsible
for maintaining the Signs.
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses not included in the Public Art Fee.
i. Expenses to locate the artists} (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
iii. Landscaping around Public Work(s) of Art that is not included as part of the artist's
sculpture furnishings, including, but not limited to, functional structures,
prefabricated water or electrical features not created by the artist, and ornamental
enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
B-1
DOCSOC/ 1110339v 11 /24579-0001
7 5A-41
v. Lighting elements not integral to the illumination of the Public Work(s) of Art.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
11. All molds, dies, or other patterns used in constructing the ~e-(~3 signs,
together with all plans, shall be property of the City.
B-2
DOCSOC/ 1 110339v 11/24579-0001
75A-42
A-2005-169
COOPERATIVE AGREEMENT FOR
OFF-SITE IMPROVEMENTS
THIS Agreement is entered into this ~ day of rig , 2005, by and between
the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public
benefit and federal 501(c)(3) corporation ("Sandpointe"), the NEXUS DEVELOPMENT
CORPORATION/CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2,
LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"),
COASTAL RIM PROPERTIES, INC., a California corporation ("Geneva Commons"), the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body
corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal
corporation duly organized and existing under the Constitution and laws of the State of California
(the "City").
WITNESSETH
A. Nexus has proposed constructing at Hutton Center a five level residential
condominium project, two 23-residential level condominium high-rise and one 24-residential level
condominium (for a total not to exceed 835 condominium units), together with ancillary retail not to
exceed 14,000 square feet (the "Nexus Project"). `
B. Geneva Commons has proposed constructing at the northeast corner of MacArthur
Boulevard and Imperial Promenade an approximately 278-unit condominium project consisting of
an 18-residential level high rise project and aneight-story building, together with ancillary retail (the
"Geneva Commons Project'.
C. Sandpointe is anon-profit corporation that serves as a conduit between the
Sandpointe Neighborhood ("Neighborhood") and outside community and political interests.
Sandpointe Neighborhood is a residential neighborhood of single family and some multi-family
homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of
approximately 800 residences. Sandpointe does not have the authority to bind any individual
resident of the Sandpointe Neighborhood.
D. The Agency is a community redevelopment agency, as that teen is defined in
California Health & Safety Code § 33100. In 1982, the Agency created the South Main
Redevelopment Project Area ("Project Area"), and Nexus and Geneva Commons are located within
the Project Area.
E. Sandpointe has identified certain physical improvements needed in the area of the
Neighborhood that aze necessitated by or would in some way offset the impact of the two
development projects. Nexus and Geneva Commons desire to contribute towards the cost and/or
construction of those improvements to the Sandpointe neighborhood in addition to and to
~~HfBIT ~
75A-43
supplement the mitigation measures and conditions of approval imposed by the City of their
respective developments. Those improvements aze set forth in Exhibit A, attached hereto and made
apart hereof by this reference ("Improvements"}.
F. The Agency is willing to assist in the funding of the improvements but only from a
portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to
fund specified improvements that would reduce blight and benefit the Project Area.
G. The City's participation in this Agreement is limited to coordination of funding
and/or construction of certain, herein specified publicly owned improvements.
H. Nexus has agreed to construct some of the improvements, and pay for the
construction of others, as more fully set forth below ("Nexus Improvements").
I. Geneva Commons has agreed to pay for a portion of the Nexus Improvements.
NOW, THEREFORE, the parties hereto do mutually agree as follows:
SCOPE OF WORK
A. Nexus shall construct and/or fund the improvements identified as "Nexus
Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit B to this
Agreement, attached hereto and incorporated herein by this reference. Nexus shall be entitled to full
use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements.
B. In consideration for Nexus' agreement to construct and/or fund the Nexus
Improvement, Geneva Commons agrees to contribute a sum equal to its pro-rata shaze of residential
units between itself and Nexus (which is currently twenty-five percent (25%) pursuant to those
numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus Improvements,
towards the cost thereof payable at the time called for below. Notwithstanding the foregoing, if
Nexus has not executed this Agreement prior to the date this Agreement becomes binding on
Geneva Commons (which the parties agree shall conclusively deemed to be the first day upon which
this Agreement has been executed by Geneva Commons, the City, the Agency and Sandpointe), then
Geneva Commons pro-rata share contribution to the Nexus Escrow shall be conclusively fixed at
twenty-five (25%) regardless of the actual number of residential units approved far it and Nexus.
C. If the entire Nexus and Geneva Commons Projects are constructed, Agency shall
cause the construction of the improvements identified as "Publicly-Owned Improvements" in
Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto
and incorporated herein by this reference. The parties acknowledge and agree that the total cost of
the publicly owned improvements, including studies, design and overhead ,shall not exceed Five
Million Dollars ($5,000,000.00).
2
7 5A-44
2. COMPENSATION AND METHOD OF PAYMENT
A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow
account at First American Title Insurance Company, 2 First American Way, Santa Ana, California,
or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for
deposit of funds to be used to pay for the Nexus Improvements (referred to herein as the "Nexus
Escrow").
B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow
Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of
this Agreement.
C. Prior to the deadline specified in paragraph 2.D. of this Agreement, Nexus and
Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the Nexus
Improvements. If, at any time, either Geneva Commons or Nexus determines that such agreement
is not possible, then the objecting party shall submit its dispute in writing, together with any
evidence upon which it relies to the Executive Director of the City's Public Works Agency and the
other party . Within fifteen (15) days of its receipt of said notice, the non-objecting party shall then
have fifteen (15) days to submit any response it has to the City and the objecting party. The
Executive Director of the City's Public Works Agency or designee shall then, within thirty (30)
days of receipt of the response, if any, or the expiration of said deadline, inform both Geneva
Commons and Nexus in writing of the final determination of the estimated total cost, which all
parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter,
Nexus and Geneva Commons shall deposit their respective shares of the estimated cost of the Nexus
Improvements as set forth in paragraph l .B. of this Agreement, less $1,000.00, into the Nexus
Escrow no Iater than the date specified in paragraph 2.D. of this Agreement.
D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building
permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance of
entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been
filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus
Escrow no later than (i) the date the first building permit is issued by the City for the Geneva
Commons Project, or (ii) a date ninety (90} days after the issuance of entitlements to Geneva
Commons, provided no litigation or referendum petition challenging Geneva Commons has been
filed and served on the City, whichever comes later.
75A-45
E. The Agency shall pay the City its cost incurred by the City for the Publicly-Owned
Improvements set forth in Exhibit A to this Agreement; provided, however that total commitment
by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE
MILLION DOLLARS ($5,000,000.00). If the items set forth asPublicly-Owned Improvements in
Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and
absolute discretion, limit or eliminate Publicly-Owned Improvements set forth in Exhibit A;
provided, however, that the Agency shall proceed with the Publicly-Owned Improvements in the
order as set forth in said Exhibit.
3. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS
A. Nexus shall prepare and submit construction drawings and related documents for
items listed on Exhibit A to the City for review (including, but not limited to, architectural review)
and written approval as and at the times established in the Schedule of Performance set forth in
Exhibit B to this Agreement. T'he construction drawings and related documents shall be submitted
in two stages: (i) the Preliminary Site Plans and (ii} Final Site Plans.
B. During the preparation of all drawings and plans, City staff and Nexus shall hold
regulaz progress meetings to coordinate the preparation of, submission to, and review of construction
plans and related documents by the City. The City staff and Nexus shall communicate and consult
informally as frequently as is necessary to insure that the formal submittal of any documents to the
City can receive prompt and speedy consideration.
C. Any revision or correction of plans required by the City shall be deemed approved by
the Agency, Geneva Commons and Sandpointe.
D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any
ownership interest in, or any right to use, the Preliminary Site Plans or the Final Site Plans submitted
by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use
any such plans or drawings to any person or entity.
4. APPROVAL OF NEXUS PLANS, DRAWIl~IGS AND RELATED DOCUMENTS
A. The City shall have the right of reasonable review (including, but not limited to,
architectural review) of all plans, drawings and related documents including any proposed changes
therein. The City shall approve or disapprove such plans, drawings, and related (and any proposed
changes therein) within the times established in the Schedule of Performance set forth in Exhibit B
hereto. Such approval shall not be unreasonably withheld.
B. Any disapproval shall state in writing the reasons for disapproval. The City shall
have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do
not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A
to this Agreement, or are incomplete.
4
75A-46
C. The City shall state in writing the reasons for disapproval of the Final Plans within
sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60) day
period shall not be grounds for resubmittal.
D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the
plans, drawings or related documents in a manner that reasonably satisfies the reasons for
disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of
the notice of disapproval. Plans, drawings, and related documents receiving City approval shall not
be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related
documents comply with all Governmental Requirements.
5. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS
IlVIPROVEMENTS
a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements in
conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the
cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and
the approved Final Plans, exceeds the funds in the Nexus Escrow, Nexus and Geneva Commons
shall be solely responsible for said costs, with each responsible for any additional cost to the same
percentage as is set forth in paragraph 1.B. of this Agreement. Nexus shall complete or fund, as the
case may be, the construction of the improvements in conformance with the schedule set forth in
Exhibit B to this Agreement_
b. The parties acknowledge and agree that the Block Wall identified as Item No. 1 on
Exhibit A will be constructed on the properties of dozens of individual homeowners in the
Sandpointe neighborhood, none of whom are parties to this Agreement. The parties agree to use
their best efforts to obtain permission of each of these individual properly owners to construct this
Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the
wall. However, it is the parties understanding and intent that should any property owner refuse to
agree to permit the construction and/or exterior ivy maintenance ("hold outs', that the Block Wall
will be constructed regardless of any hold-outs, and that plexus shall construct the Block Wall in
such fashion as to join the Block Wall to existing wall segments owned by hold outs and milLmi~e
any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its
officers, directors, employees and agents harmless from any claim by any and all property owners
including such hold outs arising out of the construction of the Block Wall in which Sandpointe, or its
officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to
defend Sandpointe at the expense of Nexus. In the event of a potential conflict of interest between
Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees and
costs of independent counsel selected by Sandpointe for defense of any claim arising out of or
relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe.
75A-47
6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF
PUBLICLY OWNED IMPROVEMENTS
Upon the issuance of a certificate of occupancy pursuant to the California Building Code for
(i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project, and
(ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to
proceed to design and construct the Publicly-Owned Improvements as set forth in Exhibit A. If only
a portion of the residential units have been constructed within five (5) years of the date of the
Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list
of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the
Publicly-Owned improvements, and the City's obligation to complete these Publicly-Owned
Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from
the project-specific tax increment generated by the Nexus Project; provided, however, that City and
Agency shall construct item no. l .a. on the list of Publicly-Owned Improvements in Exhibit A to this
Agreement regardless of the proj ect-specific tax increment received by the Agency.
7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY
OWNED IlVIPROVEMENTS
a. City shall construct the Publicly-Owned Improvements in conformance with the
schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however,
that the Agency and City shall have no obligation once the cost of the Publicly-Owned
Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly-Owned
Improvements, including all design, administrative and construction costs exceed $5,000,000.00,
then the City shall construct only that portion of the Publicly Owned Improvements as specified in
Exhibit C in the exercise of the Agency's sole and absolute discretion.
b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B,
additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the
block wall, referenced in item no. 1 on Exhibit A hereto, but the City's obligation to maintain the
climbing vines shall only apply to those property owners who execute a facade easement with the
City in a form approved by the City Attorney pernutting the City to maintain said climbing vines and
indemnifying the City from any liability caused by said climbing vines and/or irrigation. Sandpointe
shall be responsible for obtaining signatures from these individual homeowners.
8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INJURY
AND PROPERTY DAMAGE INSURANCE
A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall
indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents and
employees harmless from and against all damages to property or injuries to or death of any person or
persons, including employees or agents of Agency or City, and shall defend, indemnify and save
F
75A-48
Agency, City and Sandpointe, and their officers, agents, and employees, from any and all claims,
demands, suits, actions, or proceedings of any kind or nature, including, but not by way of limitation,
workers' compensation claims of or by anyone whomsoever, in any way resulting from the negligent
or wrongful acts or omissions of Nexus or Geneva Commons or their respective employees, agents
or subcontractors. For itself and no other, Sandpointe agrees to hold harmless Agency, City and
their respective officers, directors, agents and employees from and against all damages to properly or
injuries to or death of any person or persons, in any way resulting from the negligent or wrongful
acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or
subcontractors. This Agreement shall not be interpreted or construed to obligate Sandpointe, its
officers, directors or agents, or the Neighborhood to defend, indemnify or to answer in any way for
the Agency the City or their respective officers, directors, agents or employees for such claims.
B. Prior to the commencement of construction, Nexus or any other party working within
the real property of the City or Agency, shall obtain at its sole cost and file with the City and
Agency, and maintain for the period covered by this Agreement, a policy or policies of liability
insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the
City and Sandpointe, their officers, directors, agents, and employees, as insured or additional
insured, which provides coverage not less than that provided in the form of a comprehensive general
liability insurance policy against liability for any and all claims and suits for damages or injuries to
persons or property resulting from or arising out of operations of Nexus, its officers, directors,
agents, or employees. Said policy or policies of insurance shall provide coverage for both bodily
injury and property damage in not less than One Million Dollars ($1,000,000) combined single limit,
or its equivalent. Said policy or policies shall also contain a provision that no termination,
cancellation, or change of coverage of insured shall be effective until after thirty (30} days notice
thereof has been given in writing to City and Agency. Nexus shall give to Agency and City prompt
and timely notice of claim made or suit instituted arising out of Nexus operations hereunder. Nexus
may procure and maintain, at its own cost and expense, any additional kinds and amounts of
insurance, which in its own judgment maybe necessary for its proper protection in the prosecution
of the work. All insurance policies shall be written by responsible and solvent insurance companies
and shall include an additional insured endorsement in substantially the form of Exhibit D, attached
hereto and incorporated herein by this reference
9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.
Nexus shall carry out the design, construction, and operation of the Nexus Improvements 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 or Nexus, including all applicable federal,
state, and local occupation, safety and health laws, rules, regulations and standards, applicable state
and labor standards, applicable prevailing wage requirements, the City zoning and development
standards, City permits and approvals, building, plumbing, mechanical and electrical codes, and all
other provisions of the City and its Municipal Code, and all applicable disabled and handicapped
75A-49
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").
10. DEFAULTS AND REMEDIES
If any party defaults in performance of its obligations, covenants or agreements hereunder,
the defaulting party shall be entitled to cure the default in accordance with this section. The injured
party shall give written notice of default to the party in default, specifying the default complained of
by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor
shall it change the time of default. The defaulting party must, within thirty (30) days, following
service of said notice, commence to cure, correct or remedy such failure or delay and shall complete
such cure, correction, or remedy with reasonable diligence.
11. INSTITUTION OF LEGAL ACTIONS
Subject to the provisions of Section 13 hereof, in addition to-any other rights or remedies, either
party may institute legal action to cure, correct or remedy any default to recover damages for any
default, or to obtain any other remedy consistent with the purpose of this Agreement.
12. APPLICABLE LAW
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed and construed in accordance with the laws of the State of California.
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. All parties further agree that Orange
County, California, shall be the venue for any action or proceeding that may be brought or arise out
of, in connection with or by reason of this Agreement.
I3. RIGHTS AND REMEDIES ARE CUMULATIVE
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the parties are cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
75A-50
14. DAMAGES
In the event that the Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva
Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva
Commons in the performance of this Agreement and shall not extend to compensation for Ions of
future income, profits or assets.
15. NOTICES, DEMAND AND COMMUNICATIONS
Formal notices, demands and communications between the parties shall be sufficiently given if
dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal
offices of the Agency and the Developer as designated below. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may from
time to time designate by mail as provided in this section.
City: City of Santa Ana
Planning and Building Agency
20 Civic Center Plaza, M-20
Santa Ana, CA 92702
Attn: Steve Hazding, Executive Director
Phone: (714) 667-2700
Fax: (714) 973-1461
with copy to: City Attorney
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Agency: Community Development Agency
City of Santa Ana.
20 Civic Center Plaza, M-25
Santa Ana, CA 92702
Attn: Patricia C. Whitaker, Executive Director
Phone: (714) 647-5360
Fax: (714) 647-6549
with copy to: Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza., M-29
Santa Ana, California 92702
75A-51
Sandpointe: Sandpointe Neighborhood Association, Inc.
P.O. Box 27122
Santa Ana, California 92799
Attention: Bob Black
Nexus: Nexus Development Corporation/Central Division, Inc.
The Grand Plan 2
1 MacArthur Place, Suite 300
Santa Ana, California 92707
Attention: Cory W. AIder
Geneva Commons: Coastal Rim Properties, Inc.
139 East Alton Avenue
Santa Ana, California 92707
Attention: Franco Mola
A party may change its address by giving notice in writing to the other parties. 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.l£ sent by
facsimile, 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 hall be excluded.
10
75A-52
16. EFFECTIVE DATE AND TERM OF AGREEMENT
This Agreement shall take effect from and after the date of adoption and approval by the
City and the Agency pursuant to official action of the governing bodies thereof and shall be effective
until completion and acceptance of the Nexus Improvements and Publicly-Owned Improvements. If
Geneva Commons is approved by the City and Nexus is not, then Geneva Commons shall take over
Nexus' obligations to construct a portion of the Nexus Improvements under this Agreement, but
shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the
Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements
shall be constructed using Geneva Commons twenty-five percent (25%) share of the estimated cost
of the total Nexus Improvements, and (ii) the parkies agree and acknowledge that all references
herein to Nexus shall be deemed to be references to Geneva Commons. If Nexus is approved and
Geneva Commons is not, then Nexus, the Agency and Sandpointe shall meet and confer in good
faith, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate
which of the Nexus Improvements shall be constructed using Nexus seventy-five percent (75%)
share of the estimated cost of the total Nexus Improvements.
17. COMMENCEMENT DATE
For purposes of this Agreement the term "Commencement Date" shall refer to the period
after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the
issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The
Commencement Date shall be tolled should a valid referendum petition be presented challenging
either project, or timely litigation be filed and served challenging any of the entitlements, including
approval pursuant to the California Environmental Quality Act.
18. INTEGRATION
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto,
and supersedes all negotiations or previous agreement between the parties with respect to all or
any the matters addressed herein. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate authorities of the parties, and all amendments hereto must
be in writing and signed by the appropriate authorities of the parties.
19. ASSIGNMENT
Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in
whole, to any person, entity (public or private), partnership, joint venture, firm or corporation
who is the owner of the real property referenced in the Recital hereto at any time during the term
of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this
Agreement may not be transferred or assigned unless the written consent of the City 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
11
75A-53
the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva
Commons 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 City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons 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 Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
By
Name
Its r~lA~2/I~AN
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, INC.
By _
Name
Its
l2
75A-54
the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva
Commons 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 City Council.
Such transfer or assignment shall not relieve Nexus or Geneva Commons 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 Nexus
or Geneva Commons contained in this Agreement as such duties and obligations pertain to the
Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or
Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of
Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided
parcel maybe sold, mortgaged, hypothecated, assigned, or transferred to persons for
development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons
under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint
and several.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
SANDPOINTE NEIGHBORHOOD,
ASSOCIATION, INC.
By _
Name
Its
NEXUS DEVELOPMENT CORPORATION/
CENTRAL DIVISION, INC.
By • !2 O ~.~-----
Name
Its
12
75A-55
THE GRAND PLAN 2, LLC
By
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INC.
By .
Name
Its
ATTEST: THE CITY OF SANTA ANA
1 ~~ `~ ~ By
Patricia E. Healy David N. Re
Clerk of the Council City Manager
APPROVED AS TO
ttorney
t3
75A-56
THE GRAND PLAN 2, LLC
ATTEST:
~,~~- _ ~
p 2r"t,~-
Patricia E. Healy
Clerk of the Council
Curtis R. Olson
Managing Partner
COASTAL RIM PROPERTIES, INC.
By -
Name
Its
THE CITY OF SANTA ANA
By -~---.
David N. Ream
City Manager
t~
75A-57
APPROVED AS TO FORM:
ATTEST:
COMMUNITY REDEVELOPMENT AGENCY
OF
THE C OF SANTA ANA
c_
Pa 'cia C. Whitaker
~~_ ~ By
~atricia E. Healy
Secretary of Agency
Executive Director
14
75A-58
APPROVED AS TO FORM:
EXHIBIT A
OFF-SITE IMPROVEMENTS
Block Wall
a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy
b. North side of Sunflower between Main & alley adjacent to four plexes, excluding
sections of wall at comer of Main & Sunflower at rear of commercial building
c. Plaster and paint with one color selected by Association
d. $3,000 per house payment for repair/replacement of landscaping associated with
wall improvements upon execution of Nexus right-of--entry for construction and
exterior-wall maintenance easement. This payment shall be made by Nexus at the
time the individual property owner executes the construction easement in favor of
Nexus and permanent maintenance easement (for the climbing vines) in favor of
the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement,
Nexus shall make the $3,000 payment to Sandpointe intrust for each hold out.
e. Remove and replace 16 sections of white concrete block wall in immediate area
of MacArthur Boulevard and Flower Street, and paint with one color selected by
Association.
f. Remove and replace 4 sections of white concrete block wall along West Alton
Avenue and paint with one color selected by Association.
g. Nexus shall install climbing vines, species identified by the City, along the outer
edge of the wall, install irrigation to feed said climbing vines which shall be
connected and metered by Nexus at the nearest City water supply, and shall
reconstruct the sidewalk to the City's specifications after installation of the
irrigation lines and block wall.
h. Wall replacement specifications shall be established pursuant to paragraph 4 of
this Agreement.
i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety
(90) day plant establishment phase following item no. l.g.
2. Window Replacements
a. Nexus shall provide $3,500 construction allowance per house for sound proof
window replacements for up to 49 residential units located along Main Street and
Sunflower Avenue behind the existing concrete wall to be replaced. The 49
residential units are identified in Exhibit A-1 to this Agreement.
b. Nexus shall assist Sandpointe in obtaining/preparing necessary construction bids,
documents and permits.
c. Allowance will be paid by Nexus to Sandpointe for any applicable home upon
receipt of bona fide construction or material invoices.
d. Allowance shall expire 12 months following the completion of the concrete wall
15
75A-59
replacement improvements.
e. Window specifications shall be established pursuant to paragraph 4 of this
Agreement.
3. Taft Elementary Loading Zone
a. Nexus shall construct all improvements necessary to effectuate Definitive
Easement Agreement between Santa Ana Unified School District, Nexus and
South Coast Church.
b . Improvements to loading zone shall include driveway approaches, traffic lanes on
site, striping, church building renovations, portable classroom relocations,
computer lab on school and church properties, etc. as provided for in plans
included as part of Definitive Easement Agreement.
4. Pay City $200,000 for City to implement a Neighborhood Traffic Management
Plan {"NTMP") to mitigate changes in traffic patterns or increased cut through
traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe
Neighborhood. NTMP costs shall include traffic studies, staff time to process
neighborhood traffic plan, and the construction of appropriate traffic calming
devices, including but not limited to semi-diverters, diagonal diverters, and street
closures. The implementation of the NTMP shall be pursuant to procedures
adopted by the City Council.
5. Nexus shall pay the City the full cost (see Exhibit B) for the installation of a
Traffic Signal at the intersection of MacArthur Boulevard and Birch Street.
1 Utility Undergrounding
a. Main Street -MacArthur to Sunflower
b. MacArthur -Main to Flower
c. Sunflower -Main to Flower (north side of street)
tF
75A-60
EXHIBIT A-1
List of 49 Residential Units
List of Eligible Homa9 for
Window Replacements
Along Main and Sunflower
Single Family 1~omes:
1. 10T W. Murphy (sides to Main)
2. 3701 S. Alder (backs to Main)
3. 3705 S. Aldo (backs m Main)
4. 3709 5. Alder {bacb to Main)
5. 3713 S. Alder (backs to Main)
6. 3717 S. Alder (badca to Main)
7. 3721 S. Aldo {becko to Main)
8. 3725 S, Alder (back+ to Main)
9. 3729 $. Alder (backs to Main)
t 0. 3801 S. Aida (backs to Main)
1 t. 3805 S. Rider (backs to Main
i 2. 3809 S. Alder {backs to Main)
i 3. 3813 S. Alder (backs to Main)
14. 3817 S. Aidcr (backs to Main)
15. 3821 S. Alder (backs to Main)
16_ 3825 S. Alder (licks to Aidcr)
17. 3829 5. Alder (lucks to Main)
18_ 3901 S. Aldo (backs to Main)
19. 3905 S. Alder (backs to Main)
2R. 3909 S. Alder (backs to Main)
Zt. i02 W. Slovens (backs to Main ahd MlniMarket)
22. 106 W_ Steven (back+ to Main and Mini Market)
23. 110 W, Stevens (baeio to Main and Mini Marled)
24, i ]4 W, Stevens (backs to Sunflower and Mini Market)
25. 11$ W, Stevens (bscb to Sunflower)
26. 122 W. Stevens (Mcks to Sunflower)
27. 202 W. Stevens {backs to Sunflower)
28. 206 W. Steverrs (brdcs to Sta-flower)
29. 210 W. Stevens (barb to Sunflower)
30. 214 W. Stevars (backs to Suuflower)
31. 3926 S.Timba (sides to Sunflower)
32. 302 W. Stevens {backs to Sunflower)
33. 306 W. Stevens (backs to Sunflower)
34. 310 W. Stevens (backs to Sonflawrar)
35. 314 W. Stevens (backs to Sunflower)
36. 318 S. 5revens (bads to Suoflower)
37. 3922 3..Birdt (b6~k3 to Sunflawcr)
Fonrpkxe~
38. 3925 S. Rosa
39. 401 W. Sunflower
40. 405 W. Sunflower
41. d09 W. Sunflower
42. SOl W. sunflower
43. sos w. sunf[ower
44, s09 w. Sunflower
45. 513 W, Sunflower
Main Attraction Condnminiarns
46. 3620 A S. Main
x7.3632 A S. Main
48.3632 B S. Main
49.3632 C S. Main
(sides to Sunflower)
(fronts Sunflower)
(Fronts Sunflower)
(fivers Sunflower)
(imw sunflower)
(frontc Sunflower)
(fronts Sunflower)
(fronts Sunflower)
(sides to Mein)
(Eronb Main)
(}fonts Main)
(fronts Moin)
17
75A-61
EXHIBIT B
SCHEDULE OF NEXUS IMPROVEMENTS
1. Construction of Item No. 1 to Exhibit A shall conform to the following schedule:
a. Preliminary Site Plans -Due within thirty (30) days of the Commencement Date.
c. Final Plans -Due within sixty (60) days of City approval of Preliminary Site
Plans, together with proposed Right-Of--Entry and Maintenance Easement for
review of City and Sandpointe.
d. Building Permits, Construction Right-Of--Entry (in favor of Nexus), and
Permanent Maintenance Easement for Exterior of Wall (in favor of City) -
Application, right of entries and easements shall be submitted no late than sixty
(60) days after City approval of Final Plans.
e. Construction Commencement -Within thirty (30) days after approval of Building
Permits.
f. Construction Complete -Within one hundred twenty (120) days of
commencement of construction.
g. Ninety (90) day plant establishment phase after completion of construction of
climbing vines and irrigation.
2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule:
a. Final building permit plans shall be submitted by individual Sandpointe
homeowners to City no later than construction complete date for item no. 1,
above.
b. Construction shall be complete pursuant within one hundred twenty (120) days of
issuance of City Building Permit.
3. Construction of Item No. 3 to Exhibit A shall conform to the following schedule:
a. Nexus shall submit executed Defuutive Easement Agreement to all parties no
later than one hundred eighty (180) days of the Commencement Date. If Nexus
fails to meet this deadline, which may be extended in writing by Nexus and
Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a
separate escrow with terms providing for its withdrawal by Sandpointe, which are
mutually agreeable to all parties, for use by Sandpointe on other projects to
benefit the Sandpointe neighborhood.
b. Nexus shall complete this item not later than eighteen (18) months from the
1R
75A-62
Commencement Date.
4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final
map for the Nexus Project. The City shall follow the Neighborhood Traffic Management
Plan Policy adopted by the City Council.
5. Construction of Item No. 5 to Exhibit A shall conform to the following schedule:
a. The City shall provide Nexus with a preliminary estimate of this cost within thirty
(30) days of the Commencement Date. This preliminary estimate shall be updated, if
necessary, upon the City's receipt of Nexus application to final any portion of its
tentative tract map. Said estimate shall be conclusive.
b. Nexus shall pay the City the estimated cost of this item not later than approval of
the first final map for the Nexus Project.
c. The City shall complete construction of this item prior to the first certificate of
occupancy for the Nexus Project.
Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus
and the City Manager or designee.
19
75A-63
EXHIBIT C
SCHEDULE FOR PUBLICLY-OWNED IMPROVEMENTS
City shall complete item no. l .a. on Exhibit A ofPublicly-Owned Improvements not later
than June 2005.
2. City shall complete item no. l .b. on Exhibit A of Publicly-Owned Improvements not later
than five (5) years after the Agency provides City with the then estimated cost of the
project.
3. City shall complete item no. l.c. on Exhibit A ofPublicly-Owned Improvements not Iater
than five (5) years after the Agency provides City with the then estimated cost of the
project.
Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate the
completion of these Publicly-Owned Improvements (which, under current law. must be designed
and constructed by Southern California Edison and not the City} prior to the dates specified above.
2~
75A-64
EXHIBIT D
PUBLIC IMPROVEMENTSI
Improvement Location
Street Reconstruction Hutton Centre Drive between Sandpointe
Avenue and MacArthur Blvd. Sandpointe
Avenue between Main Street & Hutton Centre
Drive Hutton Centre Loop Road between Hutton
Centre Drive to the most easterly driveway on
the north side Eastbound MacArthur Blvd. lanes
between Main Street and Hutton Centre Drive
Construct eastbound right-turn lane MacArthur Blvd. east of Main Street
Provide second northbound right-turn lane Hutton Centre Drive between MacArthur Blvd.
and Hutton Centre Loop Road
New traffic signal Hutton Centre Drive and Hutton Centre Loop
Road
Raised median Hutton Centre Drive from MacArthur Blvd. to
280 feet south of Hutton Centre Loop Road
Raised median Hutton Centre Loop Road to most easterly
driveway on north side
Colored crosswalk Hutton Centre Loop Road east of Hutton Centre
Drive and sidewalk on north side to most
westerly driveway
Street widening to provide fourth eastbound lane MacArthur Blvd. between Hutton Centre Drive
and SR55 southbound on-ramp
Traffic signal modification to provide second MacArthur Blvd. at Hutton Centre Drive
northbound right-turn lane
Raised median Main Street between Sandpointe Avenue and
MacArthur Blvd.
Owner shall be obligated to pay prevailing wages in connection with the construction of the Public
Improvements in accordance with the requirements set forth in Attachment No. 1, attached hereto and incorporated
herein by reference.
D-1
DOCSOC/ 1110339v 1 1 /245 79-000 1
75A-65
ATTACHMENT NO. 1
TO EXHIBIT D
PREVAILING WAGE REQUIREMENT
A. Owner agrees to pay all workers employed in connection with the work to be performed
pursuant to the Agreement, not less than the prevailing rates of wages, as provided in the
statutes applicable to public works contracts of the City of Santa Ana ("Agency"}, including
without limitation Sections 1770-1780 of the California Labor Code.
B. Owner shall maintain accurate records showing the name, occupation and actual per diem,
regular, overtime and holiday wages paid to each worker and fringe benefits (as appropriate)
paid to or on behalf of each worker employed in connection with the work to be performed
pursuant to the Agreement, the hours worked by such workers and amounts withheld
pursuant to law. Such records shall be open to inspection by City staff at reasonable hours.
C. Owner shall cooperate with City staff or its consultants in carrying out any investigation of
any claim made by a worker employed by Owner that less than prevailing wages were paid
for work performed pursuant to the Agreement. Owner shall promptly pay any amount
determined by City to be the difference between the applicable prevailing wage for the
number of hours worked by the claimant and the amount actually paid to the claimant.
D. Owner agrees that, if requested by City, funds due to employee under the Agreement may be
withheld pending the completion of any investigation pursuant to Section C hereof to ensure
that the amount of any restitution, which may be required, is available.
E. Owner agrees that, if City determines that Owner has violated any provision of this
attachment/exhibit, funds otherwise due to Owner pursuant to the Agreement may be
withheld, or Owner may be required to post a bond or provide a Letter of Credit or other
security, in an amount sufficient to ensure that workers employed in connection with the
Agreement will receive the prevailing wages for the work to be performed, as determined to
be appropriate by City staff or consultants.
F. In the event that Owner subcontracts with an independent contractor for all or any part of the
work to be performed pursuant to the Agreement, and such subcontractor employs workers to
perform such work:
Owner shall assure that such subcontract includes and incorporates this
attachment/exhibit and requires such subcontractor to comply with and be bound by
the provisions hereof as the "Owner" with regard to the workers so employed.
2. In the event any such subcontractor is being investigated by City staff or consultants
pursuant to Section C hereof Owner shall, at the request of City, withhold funds from
such subcontractor prior to the completion of such investigation, to ensure that the
amount of any restitution which may be required is available.
Attachment No. 1-1
to Exhibit D
DOCSOC/ 1 110339v 1 1 /245 79-000 1
75A-66
3. In the event that the City staff determines that any such subcontractor has violated the
provisions of this attachment/exhibit, Owner agrees to cooperate with City in
withholding funds from such subcontractor or requiring such subcontractor to post
security, in accordance with Section E hereinabove.
G. In the event of a dispute between Owner and City staff with respect to a City staff
determination, Owner shall have the opportunity to bring the dispute before City Board for
review. The City Council may take such action, as it deems appropriate, including:
Affirming the City staff determination.
2. Referring the matter back to City staff for further investigation.
Reversing or modifying the City staff determination.
4. Directing the City staff to appoint an independent hearing examiner for further
investigation.
Such other action as the Board may deem appropriate under the circumstances.
H. The parties to the Agreement stipulate and agree that the City is a third party beneficiary of
the provisions of this attachment/exhibit and may enforce the same as such through any
appropriate remedies in law or equity.
I. The provisions of this attachment/exhibit shall be interpreted and applied in accordance with
that certain "Policy on Payment of Prevailing Wages by Private ReOwners or Owner-
Participants", adopted by the Community Redevelopment Agency of the City of Santa Ana
on May 20, 1986, subject to any and all amendments thereto to the date of the Agreement, a
public record on file in the offices of the Agency.
Owner shall no later than the 15th day of each month during construction of the Project
submit to the City aself--audit report declaring under penalty of perjury and demonstrating
that during the prior month it has complied with the provisions of this attachment/exhibit and
California prevailing wage law. The self-audit report or statement not be binding nor
conclusive, nor shall the filing or failure to file such report or statement preclude the City
from conducting an audit.
K. Owner shall keep and preserve for a period of not less than four (4) years all records as may
be necessary to determine whether it has paid prevailing wage as required by this
attachment/exhibit, which records shall be made available to the City or its consultants and
agents at all reasonable times for purposes of conducting an audit. Owner shall permit an
examination of such books and records at a location within the City. In the event such books
and records cannot be made available within the City, the operator shall reimburse the City
for the cost of all transportation, lodging, meals, portal-to-portal travel time and other
incidental costs reasonably incurred by the City in conducting the audit. Appropriately
identified confidential or proprietary information furnished to the city as part of an audit shall
remain confidential, except in case of civil action or criminal prosecution.
Attachment No. 1-2
to Exhibit D
DOC SOC/ 111033 9v 11 /24579-0001
75A-67
L. Should any City conducted audit conclude that Owner has failed to pay prevailing wage in at
least five percent (5%) of the audited transactions (with a single pay day of a single wage
earner constituting one transaction), then Owner shall reimburse City for all actual costs of
the audit within thirty (30) days of receipt by Owner of the City's invoice.
Attachment No. 1-3
to Exhibit D
DOCSOC/1110339x11 /24579-0001
75A-68
EXHIBIT E
AVIGATION EASEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Clerk of the Council of the City of Santa Ana
20 Civic Center Plaza, M-30
P.O. Box 1988
Santa Ana, California 92702
EXEMPT FROM FILING FEES, CAL. GOVT CODE & 6103
(Space Above Line for Recorder's Use)
GRANT OF AVIGATION EASEMENT
(John Wayne Airport)
ASSESSOR PARCEL #
RECITALS:
1. The Grand Plan 1, LLC, a California limited liability company and The Grand Plan 2,
LLC, a California limited liability company (collectively, the "Grantor"), is the owner of the fee
simple estate in and to that certain real property situated in the County of Orange, State of California,
commonly described as 1, 9 and 10 Hutton Centre and 101 E. Sandpointe Avenue, Santa Ana,
California and more particularly described in Attachment No. 1, attached hereto and incorporated by
this reference ("Subject Property");
2. It is the desire of Grantor, for itself, its heirs, administrators, executors, successors,
assigns, tenants, guests, and other persons in or using the Subject Property with the implied or
express consent of Grantor, to grant to the City of Santa Ana, a political subdivision of the State of
California (the "City"), an air and avigation easement, also known as a perpetual air, flight or noise
easement, on, upon, over, across, above, or in the vicinity of the Subject Property, and to all of the
Airspace (as hereinafter defined) above the Subject Property, whereby Grantor relinquishes certain
rights relative to the Subject Property, as described in this Grant of Avigation Easement (this
"Avigation Easement");
3. The purpose of this Avigation Easement, and its acceptance by the City, includes
granting the City an Avigation Easement permitting the unencumbered and unrestricted flight of
aircraft to or from John Wayne Airport ("JWA"), owned and operated by the County of Orange,
without liability to the City, to the aircraft operator, or to any other person lawfully operating aircraft
to or from JWA in the navigable airspace of the United States (as defined at 49 U.S.C.S.
§40102(a)(30)), and as that section of the United States Code (and the referenced regulations} existed
on the effective date of this Avigation Easement, and in accordance with relevant regulations of the
United States of America and the State of California, pursuant to the authority granted to the County
Grant of Avigation Easement E-1
DOCSOC/1110339v 11 /24579-0001
75A-69
by the people and the State of California. As agreed upon by the parties, this Avigation Easement is
calculated by reference to the Airport Environs Land Use Plan ("AELUP") for JWA Years
1990/2005 "Project Case" noise contours (as depicted in Appendix D of the AELUP for JWA dated
December 19, 2002) plus 1.5 decibels ("dB") Community Noise Equivalent Level ("CNEL");
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged:
WARRANTIES AND COVENANTS:
Grantor warrants and covenants to the City that as of the date hereof:
Grantor holds the entire fee simple interest in the Subject Property;
Grantor shall not convey its interest in the Subject Property, or execute, deliver, or
permit hereafter recordation of any interest in the Subject Property, or any lien or encumbrance
against the Subject Property (or any interest therein), until the earlier of the following events: (i) this
Avigation Easement has been properly executed by Grantor, accepted by the City, and recorded by
the Orange County Recorder; or (ii) thirty (30) days have elapsed after Grantor have delivered this
Avigation Easement to the City, properly and fully executed and notarized.
If the person executing this Avigation Easement is other than the Grantor, the person
executing this Avigation Easement has represented to the City, in documentation separate from this
grant, that he/she has been duly and lawfully authorized by Grantor to execute this Avigation
Easement on behalf of Grantor.
GRANT OF AVIGATION EASEMENT
Grantor, individually and for its heirs, administrators, executors, tenants, guests, agents,
successors, assigns, and other persons in or using the property with the implied or express consent of
Grantor, hereby grants, conveys and assigns to the City and its successors, and assigns, a perpetual
non-exclusive and assignable Avigation Easement and the right to enter or penetrate into or transmit
through the Airspace above, on or in the vicinity of the Subject Property for the unobstructed use,
passage or operation of all types of aircraft and the right to create or generate all things and
consequences to the Subject Property that may be, or may be alleged to be, incident to or resulting
from the use and enjoyment of said Airspace and any and all related aircraft and airport operations,
including, but not limited to, those impacts and effects described in Section 5.
This Avigation Easement shall be for air navigation, airport operations, aircraft sound and
noise, aircraft avigation and flight in, to, over and through the Airspace above the Subject Property,
as well as the imposition in, on, over, upon or in the vicinity of the Subject Property of noise, sound,
vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such
aircraft operations and any and all resulting annoyance, inconvenience, or other interference with the
use and enjoyment of the Subject Property and any consequent reduction in market value, all due to
the operation of aircraft to and/or from JWA, including landing at, taking off from, taxiing,
maintenance, or other aircraft or related facility operations at or on JWA.
This Avigation Easement is for the use of such airspace by any aircraft, present or future, in
whatever form or type, during operations at, on, to, or from JWA, including any future change to or
increase in JWA's boundaries and/or in the volume or pattern of aircraft traffic or aircraft noise, by
Grant of Avigation Easement E-2
DOCSOC/1110339x11 /24579-0001
75A-70
all existing or future types of aircraft, up to and including the AELUP for JWA Years 1990/2005
"Project Case" noise contours (as depicted in the AELUP for JWA, Appendix D) plus 1.5 dB CNEL,
including the imposition on the surface of the Subject Property and on any and all structures on the
Subject Property of such noise, vibration, fumes, fuel particles, dust, discomfort or other
environmental effects incident to such aircraft operations and any and all resulting annoyance,
nuisance, inconvenience, taking of or damage to the Subject Property, or any portion of the Subject
Property, or other interference with the use and enjoyment of the Subject Property and any
consequent reduction in market value. This Avigation Easement shall continue notwithstanding any
future changes or increases in the type, volume, frequency, duration, or location of operations to,
from or at JWA up to and including the AELUP for JWA Years 1990/2005 "Project Case" noise
contours (as depicted in the AELUP for JWA, Appendix D) plus 1.5 dB CNEL.
This Avigation Easement also includes all things that may be alleged to be incident to or
resulting from the use and enjoyment of this Easement, including, but not limited to, the Grantee's
continuing right to prevent, prohibit, clear and keep clear from the Airspace above the Property any
buildings, portions of buildings, structures or improvements of any kind, and of trees, vegetation, or
other objects that may cause interference with aircraft navigation and/or operations at JWA,
including the right to remove or demolish those portions of such buildings, structures, improvements,
trees, vegetation, or other objects which extend into the Airspace and, in the reasonable judgment of
the Grantee, may cause interference with aircraft navigation and/or operations at JWA, and, at the
reasonable discretion of the Grantee, the right to mark and light, or cause or require to be marked and
lighted, as obstructions or hazards to air navigation or aircraft operations, any and all buildings,
structures, or other improvements, and trees, vegetation, or other objects, which extend into the
Airspace above the Property. This Avigation Easement also includes the Grantee's right of ingress to,
passage within, and egress from the Property to inspect the Property, improvements or vegetation of
any type on the Property and, to remove any building, structure, other improvement, tree or
vegetation (or portion thereof) which extends into the Airspace in violation of this Section, or to
install such lighting, or marking of any such improvement or vegetation as permitted by this Section;
and for all other purposes described in this Section at reasonable times and after reasonable notice.
Grantee shall use reasonable efforts to minimize any disturbance of the occupants of the Subject
Property in exercising its rights hereunder. If any building, structure, other improvement, tree or
vegetation (or portion thereof) extends into the Airspace in violation of this Avigation Easement,
Grantee shall so notify Grantor, or its successors, of such violation and the requested corrective
measure, which may include, but not be limited to, the installation of such lighting, or marking of any
such improvement or vegetation, as required by law. If the Grantor, or its successors, do not correct
such violation within thirty (30) days, or such shorter time period as may be required by Grantee due
to an emergency or some other circumstance requiring more immediate action, the Grantee shall have
the right of ingress to, passage within, and egress from the Property to remove any building,
structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace
in violation of this Avigation Easement, or to install such lighting, or marking of any such
improvement or vegetation, as required by law or as reasonably required by Grantee.
The cost to remove any building, structure, other improvement, tree or vegetation (or portion
thereof) which extends into the Airspace in violation of this Avigation Easement, or to install such
lighting, or marking of any such improvement or vegetation as permitted by Section 7; and for all
other purposes described Section 7 shall be borne exclusively by Grantor.
As used in this Avigation Easement, the term "aircraft" shall mean any and all types of
aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be
Grant of Avigation Easement E-3
DOC SOC/ 1110339v 11 /24579-000 ]
75A-71
limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft,
military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence
or hereafter developed for the purpose of transporting persons or property through the air, by
whomever owned or operated.
As used in this Avigation Easement, the term "Airspace" shall mean the entire area above
those certain imaginary surfaces over the ground surface of the Property that are within the Federal
Aviation Regulations ("'FAR") Part 77 Surfaces, as specified in Advisory Circulars 70/7460-2K
(height criteria) and 70/7460-1 H (standards for marking and lighting) and any and all successor
revisions or regulations by the Federal Aviation Administration, any successor agency, or any other
agency of the federal, state or local government of the United States of America exercising
comparable authority except that additional area below those certain imaginary surfaces over the
ground surface of the Property particularly described in Exhibit "A" attached hereto.
It is expressly intended by Grantor and the City that this Avigation Easement shall not
supersede or impair any existing prescriptive, avigation, or other easements, rights, or interests of the
City, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any
remedies related thereto are expressly reserved by the Ciry.
In furtherance of this Avigation Easement, and rights herein granted, Grantor, and the heirs,
administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times
hereafter, that idthey will not take any action or knowingly cause any electronic, light or other
transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust or smoke
on the Subject Property which would conflict or interfere with or infringe on the City's rights herein
granted, or to otherwise impair the usability or function of JWA.
The rights, easements, benefits, restrictions, covenants and agreements granted herein,
including this Avigation Easement, shall continue notwithstanding any increase or other change in
the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air
traffic to, from or at JWA. This Avigation Easement may not be modified, amended, terminated, or
abandoned except by execution and delivery of an instrument executed and acknowledged by the
City, or its agents, successors, and assigns, and Grantor agree(s) that, in the absence of such an
instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be
construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall any conduct
by the City, or its agents, successors and assigns, or increase, diminution, or change in use of this
Avigation Easement, or the operation or use of JWA by Grantee constitute an overburdening of this
Avigation Easement or a termination or abandonment of this Avigation Easement.
Construction of the "MacArthur Place" project (the "Project") at the Subject Property will
require the use of construction cranes and related construction equipment. For purposes of this
Avigation Easement, the City will not consider the temporary utilization of the construction cranes
and related construction equipment that have a height that exceeds JWA FAR Part 77 imaginary
surfaces as an encroachment on or in violation of this Avigation Easement, provided that all of the
following apply:
The Federal Aviation Administration ("FAA") has conducted any required
aeronautical study of the proposed object(s) pursuant to FAA Order 7400.2E, and any and all
successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation"
for the proposed objects; and
Grant of Avigation Easement E-4
DOCSOC/ 1 110339v l 1/24579-0001
75A-72
All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
Extraordinary maintenance and repair activities (e.g., boiler replacement, fagade replacement,
elevator equipment replacement, cooling tower replacement, seismic damage repair) maybe required
after construction of the Project. For purposes of this Avigation Easement, the City will not. consider
these types of extraordinary maintenance and repair activities as encroachment(s) on, or violations of,
this Avigation Easement, provided that all of the following apply:
The FAA has conducted any required aeronautical study of the proposed object{s)
required to be utilized during the extraordinary maintenance and repair activities pursuant to FAA
Order 7400.2E, and any and all successor revisions or regulations, and has issued a "Determination
of No Hazard to Air Navigation" for the proposed objects; and
All conditions recommended by the FAA in its "Determination of No Hazard to Air
Navigation" are complied with, consistent with FAA standards and requirements.
In the event of any disaster or other casualty directed against or affecting the building(s)
located on the Subject Property which damages or destroys the building(s), Grantor shall be entitled
to demolish, reconstruct, repair or replace the building(s) on the terms set forth above in Section 14
of this Avigation Easement, subject to any required FAA determination(s) and recommendation(s).
The parties to this Avigation Easement acknowledge and agree that the easement, and all the
rights, easements, benefits, restrictions, covenants and agreements set forth herein shall run with the
land of the Grantor and the City, and any grantee, heir, agent, successor or assign of the Grantor who
acquires any estate or interest in or right to use the Subject Property shall be bound by this Avigation
Easement for the benefit of JWA and the City, and its agents, successors and assigns, including,
without limitation, the tenants and licensees of the City, and all users of JWA. This Avigation
Easement and all rights pertaining hereto is hereby vested in the Grantee, its successors and assigns,
forever and without limit in time, and shall be binding upon and inure to the benefit of the successors
and assigns of Grantor.
Grantor, and the grantees, heirs, agents, successors, and assigns of Grantor, hereby fully
waive and forever release, and covenant not to assert or bring any right or cause of action, which it or
they might now have, or which it or they may have in the future, against the City, its agents,
successors, and assigns, or against the tenants, licensees, permittees, or users of JWA, caused by or
relating to the use of this Avigation Easement or the exercise of rights under this Avigation
Easement. This grant of this easement shall not operate to deprive the Grantor, its heirs, agents,
successors, and assigns, of any rights which may from time to time arise against any air carrier or
private operator for negligent or unlawful operation of aircraft.
In the event that any one or more covenant, condition, right or other provision contained in
this Avigation Easement is held to be invalid, void, or illegal by any court of competent jurisdiction,
the same shall be deemed severable from the remainder of this Avigation Easement and shall in no
way affect, impair, or invalidate any other covenant, condition, right or other provision contained in
this Avigation Easement.
This Avigation Easement constitutes an enforceable restriction pursuant to the provisions of
California law, including, but not limited to, Section 21652 of the California Public Utilities Code,
Grant of Avigation Easement E-5
DOC SOC/ 1110339v 11/24579-0001
75A-73
and shall bind Grantor and the grantees, heirs, administrators, executors, lessees, tenants, permittees,
agents, successors, and assigns of Grantor(a), and each and all of them, and shall be appurtenant to,
and for the benefit of, the real property commonly known as JWA, which is more particularly
described in Attachment No. 2 attached hereto.
Dated: , 2005 GRANTOR:
THE GRAND PLAN 1, LLC, a California limited
liability company
By:
Name:
Title:
THE GRAND PLAN 2, LLC, a California limited
liability company
By:
Name:
Title:
Grant of Avigation Easement E-6
DOCSOC/l 110339v1 ] /24579-0001
75A-74
ATTACHMENT NO. 1
TO EXHIBIT E
SUBJECT PROPERTY DESCRIPTION
Attachment No. 1-1
Grant of Avigation Easement t0 EXhlblt E
DOCSOC/ 11 ] 0339v 11 /24579-0001
75A-75
ATTACHMENT NO. 2
TO EXHIBIT E
JWA PROPERTY DESCRIPTION
Attachment No. 2-1
Grant ofAvigation Easement to Exhibit E
DOCSOC/11 l 0339v 11/24579-0001
75A-76
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in the real property conveyed by the Easement Deed dated
from THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC to
the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California, is hereby accepted by the undersigned officer or
agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS-2352 and
Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1998, in
compliance with California Government Code Section 27281 and the grantee consents to recordation
thereof by its duly authorized officer.
Dated: CITY OF SANTA ANA
By:
Name:
Title: City Manager
Grant of Avigation Easement Certificate of Acceptance
DOCSOC!] 110339v1 1 /245 79-000 1
75A-77
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE }
On , 20_, before me
personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Grant of Avigation Easement Acknowledgment
DOCSOC/1110339v 1 1 /245 79-000 ]
75A-78
~_
EXHIBIT F
LAKE IMPROVEMENTS
Exercise path with markers
2. Upgraded/enhanced landscaping around the Lake with large water oriented shade trees
3. Dancing water jets in the Lake
4. An amphitheatre on the green (back side of the Lake Towers facing the lake)
A terraced pedestrian plaza at the base of the Lake Towers
F-1
DOCSOC/1110339v] 1/24579-0001
75A-79
~~L ~(~~~ FIRST MRER CAN T~TLE COMPANY
` ~ ~ NATIONAUCOMMERCIALSERVlCES
COMMERCIAUINDUSTRIAL DIVISION
~$-1000--1'1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30 P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE & 6103
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
THE GRAND PLAN 2, LLC,
NDC SKYLINE ASSOCIATES, LLC,
and
INTEGRAL COMMUNITIES I, INC.
Dated: `~'~2008
DOCSOC/ 1275524v 10/024579-0001
This Document was electronically recorded by
First American National C~~@$c~4
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
~~II~N~~II~~~u~u~I~A~II~~~il~~u~~l~~~~l~~~~ll~~~l~~~~l~~ NO FEE
2008000349227 01:40pm 07/22/08
105 59 A12 12
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
COPY
75A-80
THIS INSTRUMENT FILED FOR RECORD 8Y
FIRST AMERICAN TITLE COMPANY AS AN ACCOMMODATION
ONLY R HAS NOT BEEN EXAMINED AS T01TS EXECUTION
OR AS TO ITS EFFECT UPON THE TITLE.
A-2008-204
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA, GRAND PLAN 2,
NDC SKYLINE ASSOCIATES, LLC, AND
INTEGRAL COMMUNITIES I, INC.
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("First Amendment") 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 THE GRAND
PLAN 2, LLC, a California limited liability company ("GP2"), NDC SKYLINE ASSOCIATES,
LLC, a Delaware limited liability company ("Skyline") and INTEGRAL COMMUNITIES I, INC.,
a Delaware corporation ("Integral Communities I").
1. This First Amendment is entered into with reference to the following facts:
1.1 The Grand Plan 1, LLC, a California limited liability company ("GP1") and
GP2, on the one hand, and City, on the other hand, entered into that certain Development Agreement
dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as
Instrument No. 2005000565108 ("Development Agreement") pursuant to which, among other things,
Owner (as defined in the Development Agreement) is required to install Signs and Public Art at a
cost of not to exceed Five Hundred Thousand Dollars ($500,000) all of which was to be installed
prior to the issuance by the City of the first certificate of occupancy for any Element. GP1 and GP2
subsequently assigned its rights and obligations under the Development Agreement with respect to
Lake Towers to Skyline and GP 1 assigned its rights and obligations under the Development
Agreement with respect to Integral to Integral Communities I. Capitalized terms not defined herein
shall have the meaning set forth in the Development Agreement.
1.2 Skyline, GP2, and City now desire to amend the Development Agreement so
as to remove the requirement for the installation of the Signs and to provide phasing for the
installation of the Public Art.
2. Section 2.54 and 2.59 are hereby deleted in their entirety.
3. Section 5.1.7 is hereby deleted and replaced with the following:
SECTION 5.1.7. Development, Construction and Completion of
Public Art. Owner shall include within the Project, a single or grouped
permanent work(s) of public art consistent with the Public Art Plan (the
"Public Art") at a cost not to exceed Five Hundred Thousand Dollars
($500,000) ("Public Art Fee").
4. EXHIBIT B, PUBLIC ART PLAN is hereby deleted and replaced with the document
attached hereto and referenced as Exhibit B.
5. Except as amended herein the Development Agreement shall remain in full force and
effect in accordance with its terms.
DOC SOC/ 1275524v l 0/0245 79-0001
75A-81
IN WITNESS WHEREOF, this First Amendment has been executed by the City of
Santa Ana and by Owner.
Dated this ~ day of~, 2008.
THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the
Constitution and laws of the State of California
By
DAVID N. REAM
City Manager ',
Approved as to Form:
By
OSEPH LET
City Attorn
~ _.~, 3,. ~.,
,• ~ sM'I;'~, b o-
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~~. ~ ~ ` M
. ~,,~
[Signatures continue on following page]
2
DOCSOC/ 1275524v 10/024579-0001
75A-82
THE GRAND PLAN 2, LLC, a California limited
liability company
By -- l/~-p
Name ~ u c -~ is ~ D ~~„~
Its JL~(\c~ ~nhr+ r
NDC SKYLINE ASSOCIATES, LLC
a Delaware limited liability company
B ~"w~
Y-
Name _ C u r -~-~ ~ R b~s~~
ItS merest c~e n1'
INTEGRAL COMMUNITIES I, INC., a Delaware
corporation
By
Name (' i'n i 0~ M .1,41 o S-t,,~r
Its ~y'
DOCS OC/1275524v 10/024579-0001
75A-83
EXHIBIT B
PUBLIC ART PLAN
1. The Public Art shall be designed, constructed and installed by the Owner.
2. A Final Design Plan, with respect to the Element for which building permits are first issued
(the "First Element"), shall be submitted to the City's Planning Commission within thirty
(30) days prior to the issuance of a Final Certificate of Occupancy for the First Element;
thereafter a Final Design Plan for each subsequent Element (combining Cinema Towers and
the Condo/Office Project) shall be submitted to the City's Planning Commission within one
hundred fifty (150) days prior to issuance of a Final Certificate- of Occupancy for such
subsequent Element (combining Cinema Towers and the Condo/Office Project). The Final
Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more
specific locations and/or application, and (ii) specify the timing of the installation of the
Public Art which installation shall occur not later than the first (1st) anniversary date of the
City's approval of the Final Design Plan for each respective Element, but in no event shall all
required Public Art be installed later than ninety (90) days following the first utility release
on the last Element to be constructed. Owner shall have committed, by written contract, to
expend not less than One Hundred Twenty-Five Thousand Dollars ($125,000) in connection
with the Public Art upon the issuance of a certificate of occupancy for each of the following
(i) Lake Towers, (ii) Cinema Towers and/or the Condo/Office Project, (iii) Integral, and (iv)
Retail Project, but in no event exceeding an aggregate of Five Hundred Thousand Dollars
($500,000). Skyline shall be responsible for the Public Art for Lake Towers and GP2 shall
be responsible for the Public Art for all other Elements.
3. The Public Art should invite participation and interaction, inspire, add local meaning,
interpret the community by revealing its culture or history, and/or capture or reinforce the
unique character of the new place.
4. The Public Art should be constructed using durable materials and finishes including but not
limited to stone or metal.
5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime
location visable to the public and sited to complement features such as plaza or architectural
components so that the Public Art is an integral part of the development site.
6. No Public Art shall include advertising of any type, including but not limited to products,
services or businesses.
All Public Art shall be properly maintained at all times, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
The Owner may assign ownership, maintenance and/or repair responsibilities of the Public
Art to one or more Owners' Association(s).
B-1
DOCSOC/ 1275524v 10/024579-0001
75A-84
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses not included in the Public Art Fee.
i. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
iii. Landscaping around Public Work(s) of Art that is not included as part of the artist's
sculpture furnishings, including, but not limited to, functional structures,
prefabricated water or electrical features not created by the artist, and ornamental
enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integral to the illumination of the Public Art.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
B-2
DOCSOC/ 1275524v 10/024579-0001
75A-85
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30 P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE § 6103
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
NDC SKYLINE ASSOCIATES, LLC
and
INTEGRAL COMMUNITIES I, INC.
Dated: , 2009
Ordinance No. NS-
EXHIBIT 4
75A-86
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA,
NDC SKYLINE ASSOCIATES, LLC, and
INTEGRAL COMMUNITIES I, INC.
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Second Amendment") 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"), NDC SKYLINE
ASSOCIATES, LLC, a Delaware limited liability company ("Skyline"), and INTEGRAL
COMMUNITIES I, INC., a Delaware corporation ("Integral").
1. Reference to Facts. This Second Amendment is entered into with reference to the
following facts:
1.1 Capitalized terms not defined herein shall have the meaning set forth in the
Development Agreement.
1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and
The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City,
on the other hand, entered into that certain Development Agreement dated August 4, 2005 and
recorded in the Orange County Official Records on July 21, 2005 as Instrument No.
2005000565108 (as amended, the "Development Agreement") pursuant to which, among other
things, Owner (as defined in the Development Agreement) was granted the vested right to develop
a mixed use Project with residential condominiums and office/commercial/retail uses, as more
particularly described therein. GP1 and GP2 subsequently assigned its rights and obligations under
the Development Agreement with respect to Lake Towers to Skyline, and GP 1 assigned its rights
and obligations under the Development Agreement with respect to the Integral Project to Integral
Communities I, Inc., a Delaware corporation.
1.3 As set forth above, Integral is the current owner of the Integral Project,
having been assigned the Integral Project pursuant to the terms and provisions of the Development
Agreement.
1.4 The original Development Agreement and Entitlements (i) described the Lake
Towers Element of the Project as consisting of two (2) towers with "for-sale" condominium units,
and (ii) described the Integra( Project as consisting of "a five (5) or six (6) story building
containing two hundred seventy-six (276) for-sale residential condominium units."
1.5 Lake Towers is nearing completion and, concurrently herewith, the City has
approved certain modifications to existing Entitlements (including, Conditional Use Permit No.
2005-10) to permit Skyline to rent (and offer for rental) some or all of the Residential Units
comprising Lake Towers (irrespective of whether any Residential Units are sold to third party
purchasers).
3/12/2009 6:28:00 PM
2
2nd amendment to development agreement2 75A-V
1.6 The Integral Project is still in the planning stage and, concurrently herewith,
the City has approved certain modifications to existing Entitlements (including, Conditional Use
Permit No. 2005-15) to permit Integral to rent (and offer for rental) some or all of the Residential
Units comprising the Integral Project (irrespective of whether any Residential Units are sold to third
party purchasers).
1.7 In connection with the foregoing, Skyline, Integral and City now desire to
amend the Development Agreement to provide Skyline and Integral with the ability to rent (and offer
for rental) some or all of the Residential Units comprising Lake Towers and Integral Project,
respectively, in accordance with applicable Entitlements.
2. Right to Rent. Skyline, Integral and the City hereby acknowledge and agree that
Skyline and Integral have the right to rent (and offer for rental) some or all of the Residential Units
comprising Lake Towers and/or the Integral Project, respectively, in accordance with applicable
Entitlements. The foregoing shall in no way be deemed to impose an obligation on Skyline or
Integral to rent (or offer for rental) any or all of the Residential Units, or preclude Skyline or Integral
from selling and renting (and offering for sale and rental) the Residential Units concurrently.
3. Modification of Certain Provisions. The Development Agreement is hereby amended
and supplemented in the following particulars:
3.1 Section 1.1(1). The phrase "for-sale residential condominiums" appearing in
Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "for-sale
condominium units/for-rent residential units."
3.2 Section 2.43(1). The phrase "three hundred fifty (350) for sale residential
condominium units" appearing in Section 2.43(1) of the Development Agreement is hereby
amended and restated to read as "three hundred forty-nine (349) for-sale condominium units/for-
rent residential units."
3.3 Section 2.43(3). The phrase "two hundred seventy-six (276) for-sale
residential condominium units" appearing in Section 2.43(3) of the Development Agreement is
hereby amended and restated to read as "two hundred seventy-six (276) for-sale residential
condominium units/for-rent residential units."
3.4 Section 2.50. The phrase "each of the for sale residential units" appearing in
Section 2.50 of the Development Agreement is hereby amended and restated to read as "each of the
for-sale (and with respect to Lake Towers and Integral Project, if applicable, the for-rent) residential
units."
3.5 Section 4.1. Clause (ii) appearing in Section 4.1 of the Development
Agreement is hereby amended and restated to read in its entirety as follows:
"(ii) the granting of Certificates of Occupancy (or similar permission to occupy) for
the final Element of the Project and, except with respect to Lake Towers and/or
Integral Project, sale of all Residential Units."
3.6 Section 4.3. Clause (f) appearing in Section 4.3 of the Development
Agreement is hereby amended and restated to read in its entirety as follows:
3/12/2009 6:28:00 PM
2nd amendment to development agreement2 75A-V V
"Buyer's of Residential Units (and with respect to the Lake Towers Element and/or
the Integral Project, if applicable, buyer's or tenant's of Residential Units).
4. Full Force and Effect: Countemarts. Except as amended herein the Development
Agreement shall remain in full force and effect in accordance with its terms. This Second
Amendment may be executed in any number of counterparts, all of which shall constitute one and the
same instrument.
[Signature and Notary Pages Follow]
3/12/2009 6:28:00 PM
2nd amendment to development agreement2
75A-89
IN WITNESS WHEREOF, this Second Amendment has been executed by the City of
Santa Ana, Skyline and Integral.
Dated this day of , 2009.
"CITY"
THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the
Constitution and laws of the State of California
By
DAVID N. REAM
City Manager
Approved as to Form:
By.
JOSEPH W.FLETCHER
City Attorney
"SKYLINE"
NDC SKYLINE ASSOCIATES, LLC,
a Delaware limited liability company
By _
Name
Its
"Integral"
INTEGRAL Communities I, INC.,
a Delaware corporation
By _
Name
Its
3/12/2009 6:28:00 PM
2nd amendment to development agreement2
75A-90
STATE OF CALIFORNIA
COUNTY OF
ss.
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
STATE OF CALIFORNIA
COUNTY OF
ss.
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
3/12/2009 6:28:00 PM
2nd amendment to development agreement2
75A-91
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
3/12/2009 6:28:00 PM
2nd amendment to development agreement2
75A-92
Conditional Use Permit No. 2005-10
March 23, 2009
Page 1 of 2
Findings of Fact
A. Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or
community?
The Skyline Towers multi-family residential project at 9 and 15
MacArthur Place will provide a service to the community by
providing high-quality residential housing stocks that will
enhance the property values of the surrounding neighborhoods.
Conditions of approval have been included to ensure the quality
and the attractiveness of the overall design which will
contribute to the general well being of the community.
B. Will the proposed use under the circumstances of the particular case
be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity?
The proposed multi-family residential use, in conjunction with
the rest of the MacArthur Place South development, will not be
detrimental to persons residing and working in the area. The
short-term and long-term unavoidable adverse impacts identified
in Environmental Impact Report No. 2004-02 pertaining to
aesthetics, air quality, and traffic and transportation can be
addressed through the adoption of Statement of Overriding
Considerations by the City Council to balance the economic,
legal, social, and technological and/or other benefits of this
project against the unavoidable environmental impacts. Any
other negative or adverse impacts will be mitigated through
mitigation measures identified in Environmental Impact Report
No. 2004-02.
C. Will the proposed use adversely affect the present economic
stability or future economic development of properties surrounding
the area?
The proposed multi-family residential project will not
adversely affect the economic stability of the area. The
multi-family residential component will provide a customer base
to the retail and restaurant uses, which will reinforce the
economic viability of the project and will assist in
identifying MacArthur Place South as a viable mixed-use
community.
75~T~3
Conditional Use Permit No. 2005-10
March 23, 2009
Page 2 of 2
D. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The project will be in compliance with all applicable
provisions of Chapters 34 and 41 of the Santa Ana Municipal
Code as well as the provisions of the SD-76 zoning district
except for the parking, tandem parking and setback
requirements. Three variances have been approved to deviate
from these standards.
E. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed project will not adversely affect the General Plan
as multi-family residential development and ancillary uses are
conditionally permitted within the Specific Development No. 76
(SD-76) zoning district. Further, General Plan Land Use
Element Policy 1.3 supports high-density residential development
within the City's District Centers as a part of a master-planned
mixed-use development. Also, Policy 1.4 promotes the
maintenance and fostering of a variety of residential land uses
in the city.
75A-94
MARCH 23, 2009
PAGE 1 OF 17
Conditions of Approval
Conditional Use Permit No. 2005-10 (Skyline Towers) is approved subject to
compliance, to the reasonable satisfaction of the Planning Manager, with
applicable sections of the Santa Ana Municipal Code, the California
Administrative Code, the California Building Standards Code, and all other
applicable regulations. In addition, it shall meet the following
conditions of approval:
The applicant must comply with each and every condition listed below prior
to exercising the rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below
throughout the life of the development project. Failure to comply with
each and every condition may result in the revocation of the conditional
use permit approval.
A. Planning Division
1. All proposed site improvements must conform with the Site Plan
Review approval of DP No. 03-79.
2. Any amendment to this conditional use permit must be submitted
to the Planning Division for review. At that time, staff will
determine if administrative relief is available or the
conditional use permit must be amended.
3. A Parking Management Plan documenting how the tandem parking
stalls will function must be submitted prior to building plan
check.
4. The project shall incorporate on-site professional property
management for the residential component.
5. Balconies for the project shall maintain a minimum dimension
of not less than six feet in any direction.
6. Covenants, Conditions and Restrictions (CC&Rs) shall be
provided for the project. At a minimum, the CC&Rs shall
include provisions pertaining to owner occupancy, restrictions
on home-based businesses, the prohibition of storage on
balconies, and a restriction on truck delivery hours to non-
peak periods shall be submitted prior to building plan check.
MARCH 23, 2009
PAGE 2 OF 17
7. Prior to submittal into building plan check, detailed elevations
shall be submitted to include exterior finishes, materials, and
colors subject to approval of the Planning Manager.
8. All parking for the project shall be made available free of
charge. Two parking spaces per dwelling unit shall be provided
as a part of the deed for each dwelling unit.
9. A Public Art Plan which proposes a specific work(s) of art for a
specific location(s) shall be submitted to the Planning
Commission for review and approval. All public art approved by
the Planning Commission shall be completely installed prior to
the issuance of a certificate of occupancy for the project.
10. A detailed landscape plan must be reviewed and approved prior
to issuance of any building permits. In addition to the
landscaping palette, the plan shall include details on the
hardscape design, lighting concepts and outdoor furniture. At
a minimum, the project shall incorporate the amount and size
of landscaping as shown on Sheet MLP1.1. The exact
specifications for these items are subject to the review and
approval of the Planning Commission.
11. After project occupancy, landscaping is to be maintained to
include the minimum level of plant materials installed at the
time of occupancy as required by the approved plans.
12. A detailed amenity deck plan must be reviewed and approved
prior to issuance of any building permits. The plan shall
include details on the hardscape design, lighting concepts and
outdoor furniture for the amenity deck as well as an
installation plan. The exact specifications for these items
are subject to the review and approval of the Planning
Commission. The amenity deck shall be maintained in the same
condition as installed at the time of occupancy.
13. A detailed water feature plan must be reviewed and approved
prior to issuance of any building permits. The plan shall
include a minimum of one water feature within the motor court,
elevations, hardscape design, lighting concepts and an
installation plan. The exact specifications for these items are
subject to review and approval of the Planning Commission. The
water feature(s) shall be maintained in the same condition as
installed at the time of occupancy.
75A-96
MARCH 23, 2009
PAGE 3 OF 17
14. The following items must be included as exterior amenities for
the development: Enhanced paving in the motor court, enhanced
paving on the walkways, an outdoor fireplace, barbeque and a
pool and spa on the amenity deck. The exact specifications
for these items are subject to the review and approval of the
Planning Commission.
15. An interior building amenity plan of the fitness rooms,
lounge, yoga room and spas must be reviewed and approved prior
to issuance of any building permits. The plan shall include
details on the various finishes and equipment to be provided
in these rooms. The exact specifications for these items are
subject to the review and approval of the Planning Manager.
16. The following items must be included as interior amenities
within the common areas: Concierge services for the residents,
granite counter tops, hardwood flooring or equivalent, and gas
fireplaces. The exact specifications for these items are
subject to the review and approval of the Planning Manager.
17. The following items must be included as interior amenities
within each unit: granite counter tops or equivalent, hardwood
flooring or equivalent, General Electric Monogram appliances
or equivalent, tiled bathroom and shower walls, stain grade
hard wood cabinets and individual laundry hook-ups. The exact
specifications for these items are subject to the review and
approval of the Planning Manager.
18. An elevator lobby plan of each lobby must be reviewed and
approved prior to issuance of any building permits. The plan
shall include details on the finishes and flooring to be
provided. The exact specifications for these items are
subject to the review and approval of the Planning Manager.
19. Pedestrian walkways shall be provided through all lots to
establish pedestrian pathways throughout the development as
shown on Exhibit 13. The amenities to be provided along this
pathway shall include decorative concrete and paving, accent
lighting, and landscape planters as shown on the plans. The
materials and design of the walkway is subject to the review
and approval of the Planning Manager. The improvements in
each phase must be completed prior to occupancy of the first
unit in the respective phases.
75A-97
MARCH 23, 2009
PAGE 4 OF 17
20. One storage locker shall be provided for each residential
unit. The lockers shall be available at no cost to the
residents and shall be a minimum of 192 cubic feet in size.
21. Cast iron drain pipes shall be provided for the project.
22. Smart wiring, including cable television and high-speed cable
for computers, shall be provided for each unit and within the
project's common areas.
23. Signage to direct customers and guests to the adjacent parking
structure shall be provided. A directional sign plan needs to
be submitted and approved by the Planning Manager prior to
issuance of a certificate of occupancy.
24. Construction workers for the project shall be prohibited from
parking in the adjacent neighborhoods.
25. Prior to issuance of building permits, a Waste Management Plan
shall be submitted to the Planning Manager for approval. The
plans shall include information on items such as pick-up,
delivery, and types of bins required.
26. Prior to occupancy of any units, a rental housing execution plan
must be submitted to the Planning Manager for review and
approval. At a minimum the plan shall identify the location of
employee and visitor parking, the location of the rental office,
hour of operation for the rental office, and signage affiliated
with the Rental Housing Operational Plan. In addition, the
rental plan must clearly note that the parking and project
amenities must be provided free of charge to the residence.
(Added by the Planning Commission on March 23, 2009)
Mitigation Measures
27. Prior to issuance of building permits, the project developer
shall ensure that the building plans reflect the following
information: outdoor lighting fixtures adjacent to exterior
doors and within walkways and parking lots shall generate a
minimum 1.0 foot candle level of light during normal operation
hours. During non-operating hours, outdoor lighting fixtures
shall generate no less than .25 foot candle level of light.
All lighting shall be directed towards the interior of the
project site.
75A-98
MARCH 23, 2009
PAGE 5 OF 17
28. Prior to issuance of building permits, building plans for the
proposed project shall reflect the use of non-reflective
building materials to minimize light and glare impacts.
29. Prior to the issuance of building permits, a Final Landscape
Plan for each building component of the project shall be
approved by the City of Santa Ana Planning and Building
Agency. The Final Landscape Plan shall be based on the
conceptual landscape plan included in the EIR.
30. Prior to issuance of Certificate of Occupancy Permits, the
required landscaping for each building component of the
project shall be installed to the satisfaction of the City of
Santa Ana Planning Department.
31. Prior to the issuance of a building permit, the project
developer shall provide the Planning Manager plans that
incorporate lighting and any other conditions in the manner
required by the FAA during the construction phase (e.g. for
the cranes) and after completion.
32. Pursuant to state law, prior to issuance of a certificate of
use and occupancy permit, the project proponent shall provide
evidence to the City of Santa Ana that a Notice of Airport in
the vicinity has been recorded on the deed for each
residential unit and shall remain so recorded so as long as
the airport is in operation.
33. As required by the AELUP, prior to issuance of the certificate
of use and occupancy, the City shall ensure that the sales
office for the residential unit posts a conspicuous sign
informing potential buyers to the presence of the airport.
The notice shall be in the same language as the need notice.
34. Prior to the issuance of a building permit, the project
developer shall provide evidence to the Planning Manager that
an FAA "No Hazard" determination has been secured for the
operation of construction cranes. The project developer shall
demonstrate compliance with any conditions imposed by the FAA.
35. During construction, the contractor shall be required to
comply with SCAQMD Fugitive Dust Rule 403 to suppress dust
generated by construction operations. To ensure compliance
with SCAQMD Fugitive Dust Rule 403, grading plans and
demolition plans for the proposed project shall reflect the
following notes:
75A-99
MARCH 23, 2009
PAGE 6 OF 17
• All materials excavated or graded shall be sufficiently
watered to prevent excessive amounts of dust. Watering with
complete coverage shall occur at least twice daily, once in
the late morning and once after work is done for the day.
• All clearing and earthwork activities shall cease during
periods of high winds (winds greater than 25 mph averaged
over one hour) or during Stage 1 or Stage 2 smog episodes.
• Internal roadways and project site entry and exit points
shall be cleaned at the end of each day by the project
developer. Dust and debris from construction activities
that migrates or is carried onto MacArthur Boulevard or Main
Street adjacent to the project site shall also be cleaned
each day.
• All material transported off-site shall either be
sufficiently watered or securely covered to prevent
excessive amounts of dust. Haul trucks leaving the site
shall have a minimum freeboard distance of 12 inches.
• Construction equipment leaving the project site shall be
wheel washed.
• The amount of area disturbed by clearing and earthwork
activities shall be minimized at all times.
• Equipment engines shall be maintained in good condition and
in proper tune according manufacturer's specifications.
• To the extent feasible, construction equipment shall use
alternative clean fuels such as compressed natural gas
equipment with oxidation catalysts. If alternative clean
fuels are not feasible, gasoline powered construction
equipment shall be used.
• Construction equipment operating on diesel fuel shall use
particulate filters or low sulfur diesel.
• To the extent feasible construction operations shall use
electricity from power poles in-lieu of temporary diesel or
gasoline-powered generators.
75A-100
MARCH 23, 2009
PAGE 7 OF 17
36. Prior to commencement of construction activities, the project
developer shall identify to the City a construction relations
officer to act as a community liaison concerning on-site
activity, including resolution of issues related to dust
generation from grading/paving activities. A publicly visible
sign shall be posted with the name of construction relations
officer and a telephone number.
37. During finish work, the construction contractor shall ensure
the minimization of ROG emissions. Building plans for the
project shall specify and require the use of pre-coated
building materials, use of high pressure-low volume (HPLV)
paint applicators with 50 percent efficiency, and use of lower
volatility paint not to exceed 100 grams of ROG per liter.
38. During construction and grading activities, the developer's
construction contractor shall comply with the measures set
forth in the Storm Water Pollution Prevention Plan (SWPPP) to
ensure that airborne dust is kept to a minimum.
39. Prior to issuance of building permits and to the extent
feasible, building plans for the proposed project shall
reflect the use of the following measures.
• Use low-polluting high energy-efficient appliances
• Install solar panels on roofs to supply electricity for
heating and cooling
• Use double-paned windows to reduce thermal loss
• Install automatic lighting on/off controls and energy-
efficient lighting
• Use light colored roofing materials in new construction to
deflect heat away from buildings.
40. During grading operations, special handling of on-site soils
shall be required due to the high moisture content of the
soils, which is well above optimum moisture conditions. The
City of Santa Ana shall monitor the grading contractor to
ensure stabilization of the soils during grading prior to
placing and compacting fill soils over wet sub-grade soils, as
recommended in the geotechnical investigation prepared by
Geotechnical Professionals, Inc.
75A-101
MARCH 23, 2009
PAGE 8 OF 17
41. Prior to issuance of building permits, the project developer
shall ensure that pile foundations are incorporated into the
project design to mitigate the potential settlement hazards
beneath the proposed buildings. Pile foundations shall be
installed according to the recommendations provided in the
project geotechnical report.
42. Prior to issuance of building permits, the project developer
shall ensure that the subterranean portion of the structures
is designed and installed to resist hydrostatic pressure and
be a water-proof barrier between the existing soils and
subterranean portions of the buildings. This design and
installation shall be consistent with the recommendations
provided in the project geotechnical report.
43. Prior to initiation of project grading, the project developer
shall ensure that all existing utilities will be relocated,
abandoned and removed, rerouted, or protected in coordination
with the project developer and affected utility companies.
44. Prior to issuance of a grading permit for project
construction, the project developer shall ensure that a Final
Geotechnical Report on the project site is prepared. All
recommendations from this Final Geotechnical Report shall be
incorporated into the final grading plan for the project.
45. Prior to issuance of building permits, the project developer
shall ensure that all structures on the site are designed in
accordance with the seismic design provisions set forth in the
Final Geotechnical Report and the Uniform Building Code in
order to promote safety in the event of a seismic event.
46. Prior to issuance of grading permits, the project developer
shall determine and demonstrate to the City of Santa Ana that
the foundation piles for the project would not intrude into
the Orange County groundwater basin. In the event the
foundations intrude into the groundwater basin, the project
developer shall obtain approval and/or permits from the Orange
County Water District and the Regional Water Quality Control
Board. Any measures required by these agencies will be
incorporated into the final design and construction
specifications for the project.
75A-102
MARCH 23, 2009
PAGE 9 OF 17
47. Prior to issuance of grading permits, the project developer
shall ensure that provisions set forth in the Final
Geotechnical Report regarding dust control measures during
site preparation, grading and construction are incorporated
into the final construction specifications for the project.
48. Prior to issuance of Certificate of Occupancy permits, the
project developer shall submit to the City of Santa Ana CC&Rs
for each residential project. The CC&Rs shall outline the
environmental awareness, conditions and Best Management
Practices regarding the handling and storage of hazardous
materials as identified in the Water Quality Management Plan
for MacArthur Place South.
49. Prior to issuance of grading permits, the project developer
shall provide proof to the City of Santa Ana of an NPDES
permit from the RWQCB for on-site dewatering activities.
50. The residential management companies shall ensure that post-
construction Best Management Practices (BMPs) are strictly
adhered to by all building occupants and tenants.
51. Prior to issuance of a demolition permit, the project
developer shall prepare an asbestos survey to determine the
presence of asbestos containing building materials. The
survey shall be submitted to the City's Environmental
Coordinator for review. If asbestos is identified, proper
precautions shall be taken during demolition in compliance
with California environmental laws, regulations and policies.
52. Prior to issuance of a demolition permit, the project
developer shall prepare a lead paint survey to determine the
presence of lead based paint. The survey shall be submitted
to the City's Environmental Coordinator for review. If lead
based paint or mercury is identified, proper precautions shall
be taken during demolition in compliance with California
environmental laws, regulations and policies.
53. Prior to occupancy of residential units, the project developer
shall ensure that CC&Rs for the community homeowners
associations are recorded specifying maintenance
responsibilities for all BMPs identified in the Water Quality
Management Plan.
75A-103
MARCH 23, 2009
PAGE 10 OF 17
54. Prior to issuance of a grading permit for the project, the
project developer shall prepare and submit a Notice of Intent
(NOI) to the State Water Resources Control Board (SWRCB) The
developer will also submit the NOI and the project Water
Discharge identification Number (WDIN) provided by the SWRCB
to the City of Santa Ana City Engineer.
55. During all site preparation, grading and construction, the
project developer shall ensure that the project contractor
complies with all applicable requirements of the NPDES permit,
the Drainage Area Management Plan (DAMP), and the City's Local
Implementation Plan (LIP). BMPs from the DAMP and the LIP
will be implemented by the project contractors, as appropriate
during site preparation, grading and construction.
56. Prior to issuance of a grading permit, the project developer
shall prepare a Final Storm Water Pollution Prevention Plan
(SWPPP). This plan shall be submitted and approved by the
City Engineer prior to initiation of any grading activity.
The project shall maintain the SWPPP on the construction site
throughout the construction period.
57. During all site preparation, grading and construction, the
project developer shall ensure that its contractor implements
the provisions of the SWPPP.
58. Prior to the issuance of grading permits, the project
developer shall submit a Final Water Quality Management Plan
(WQMP) based on the Final Grading Plan, to be approved by the
City's Director of Public Works. The WQMP shall be consistent
with the DAMP and shall contain provisions and BMPs for
construction and operation conditions.
59. Prior to the issuance of building permits, the project
developer shall pay the City's drainage impact fee.
60. Prior to the issuance of grading permits, the project
developer shall verify that structural BMPs have been
permanently incorporated into project plans. Such BMPs shall
ensure that pollutants from project-related storm water runoff
are mitigated consistently with applicable state and local
standards.
75A-104
MARCH 23, 2009
PAGE 11 OF 17
61. Prior to issuance of grading permits, the project developer
shall submit a final drainage plan to the City identifying the
exact size and location of drainage facilities.
62. Prior to issuance of grading permits, the project developer
shall provide proof of an NPDES permit from RwQCB to the City
for onsite dewatering activities.
63. Prior to issuance of building permits for tenant improvements
for restaurant uses, the project developer shall ensure that
the proposed restaurants are fitted with grease interceptors
to the size and capacity as designated by the City of Santa
Ana Building Division.
64. Prior to issuance of building permits, building plans shall
reflect the construction of noise barriers to ensure an
exterior noise level of 65 CNEL or less around patios and
balconies that are considered open space by the City of Santa
Ana. The barriers shall be constructed of materials that
provide a surface density of at least four pounds per square
foot and shall be continuous (without gaps or gates). The
height of the barriers shall be sufficient to reduce the
exterior noise level to a CNEL of 65 dB or less, and shall be
determined by a qualified acoustical consultant as part of the
final engineering design of the project.
65. Prior to issuance of building permits, building plans shall
specify the STC rating of windows and doors for all
residential land uses. Window and door ratings shall be
sufficient to reduce the interior noise level to a CNEL of 42
dB or less, and shall be determined by a qualified acoustical
consultant as part of the final engineering design of the
project.
66. Prior to building occupancy, mechanical ventilation shall be
installed at the proposed condominiums and residential towers
since the interior CNEL standard of 42 dB is to be met with
all windows and doors closed.
75A-105
MARCH 23, 2009
PAGE 12 OF 17
67. Prior to building occupancy, to the extent possible, all
equipment shall be enclosed within a building or separate
structure. Where this is not possible, barriers may be
necessary to shield the equipment from the existing and
proposed residential buildings. Depending on the size and
style of the equipment, silencers in the intake and exhaust
ducts may also be necessary to reduce noise at the residential
buildings to an acceptable level.
68. Upon project completion, truck deliveries to the restaurant
and the retail building shall be restricted to the hours of
7:00 a.m. to 10:00 p.m. Delivery trucks shall not be
permitted to idle in the parking lots or loading areas and
shall be required to have properly maintained, factory
approved mufflers. Delivery truck drivers shall be encouraged
to minimize acceleration and maintain reduced vehicle speeds
while onsite.
69. Demolition and construction plans for the proposed project
shall reflect the following note: "During demolition and
construction, the contractor shall adhere to all City Noise
Ordinance requirements to limit all construction activity,
including equipment start-up, to between the hours of 7:00
a.m. and 8:00 p.m. Mondays through Saturdays. No construction
shall take place on Sundays or federal holidays.
70. During demolition and construction, the contractor shall site
all construction staging and storage areas away from sensitive
receptors to the furthest extent possible.
71. During construction activities, the project developer shall
ensure that all pile driving equipment shall be enclosed on
all sides with an acoustical blanket barrier that provides a
minimum sound transmission class (STC) rating of 30. The
height of the blanket enclosure shall be at least 20-feet.
With the exception of points of access to the enclosure area,
there shall be no openings or gaps in the enclosure, and all
points of access are to remain closed during pile driving
activities. Notwithstanding Mitigation Measure No. 67, pile
driving shall not commence prior to 8:00 a.m. on Saturday.
72. Prior to issuance of grading or demolition permits, the
project developer shall submit a construction equipment
staging plan to the City of Santa Ana for approval.
75A-106
MARCH 23, 2009
PAGE 13 OF 17
73. Prior to the start of construction activity, the project
developer shall post the name and telephone number of the
construction relations officer on-site.
74. Prior to any site preparation, grading or construction, the
project contractor shall provide to resident associations in
the Sandpointe neighborhood, the Main Attraction Condominiums
and the Pinnacle Apartments a project schedule indicating the
type of construction activity and duration, construction
staging areas and the name and telephone number of the
construction relations officer.
75. Prior to issuance of occupancy permits, the project developer,
at the project developer's sole expense, shall conduct a noise
monitoring analysis to ensure that residential units achieve
an interior noise level of 42 dB CNEL. The analysis shall be
conducted by a qualified acoustical consultant and shall be
submitted to the City's Planning and Building Agency for
review.
76. Prior to issuance of a building permit, the project developer
shall coordinate any required relocation of fire hydrants on
the property with Santa Ana Fire Department. Final approval
from the Fire Department is required regarding location of
hydrants on the project site.
77. Prior to issuance of a grading permit, the project developer
shall submit building plans to the Santa Ana Police Department
in order to ensure compliance with the City of Santa Ana's
Building Security Ordinance. The Police Department must
approve the building plans with regard to the Building
Security Ordinance prior to initiation of grading.
78. Prior to issuance of a building permit, the project developer
shall prepare a Mandated Security Plan, which would need final
Police department approval. The plan is required to address
issues such as onsite uniform security staffing, restriction
of hours of operation for the parking garages, implementation
of electronic security, mechanical surveillance, and
compliance with the basic principles of Crime Prevention
Through Environmental Design.
75A-107
MARCH 23, 2009
PAGE 14 OF 17
79. Prior to issuance of a building permit, the project developer
shall comply with Senate Bill 50 and pay applicable school
impact fees. Currently, the Santa Ana Unified School
District's adopted Fee Justification for residential
development is $2.14 per square foot and $0.33 per square foot
for commercial development.
80. Prior to issuance of a building permit, the project developer
shall ensure that the appropriate park Acquisition and
Development Fee and parkland dedication or in-lieu payments
have been made.
81. Prior to issuance of building permits, the project developer
shall submit a Construction Phasing Plan to Santa Ana Fire
Department. The plan must be consistent with the Fire
Department Fire Code requirements and must show that emergency
access to the construction site is adequate.
82. Prior to issuance of building permits, the project developer
shall provide evidence to the Santa Ana Fire Department that
the proposed fire protection and life saving systems
incorporated in the project are adequate.
83. Prior to issuance of building permits, the project developer
shall submit the final design of the project, including fire
sprinklers system design to the Santa Ana Fire Department for
approval.
84. Prior to issuance of building permits, the project developer
shall coordinate with the Santa Ana Fire Department and the
Santa Ana Police Department regarding possible radio
interference and installation of radio repeaters on a tower
rooftop.
85. Prior to issuance of building occupancy permits, the project
developer in cooperation with the City of Santa Ana, shall
provide for the restriping of the outside southbound through
lane at the intersection of Main Street and Sunflower to a
shared through and right turn lane.
86. Prior to issuance of building occupancy permits, the project
developer in cooperation with the City of Santa Ana, shall
provide for the restriping the shared through right-turn lane
at Hutton Centre Drive and MacArthur Boulevard to provide an
exclusive through lane and construct a second northbound right
turn lane for the northbound traffic.
75A-108
MARCH 23, 2009
PAGE 15 OF 17
87. Prior to issuance of building occupancy permits, the project
developer shall pay for the construction of a third eastbound
through lane on MacArthur Boulevard between Hutton Centre
Drive/Imperial Promenade and the SR-55 northbound on-ramp.
88. Prior to the issuance of building occupancy permits, the
project developer in cooperation with the City of Santa Ana,
shall provide for the installation of a traffic signal at
Hutton Centre Drive and Hutton Centre Loop.
89. Prior to issuance of building occupancy permits, the project
developer shall pay for the construction of a fourth eastbound
lane on MacArthur Boulevard between Hutton Centre
Drive/Imperial Promenade and the SR-55 southbound on-ramp.
90. Prior to issuance of building occupancy permits, the project
developer shall contribute $200,000 for the City of Santa Ana
to prepare a neighborhood traffic study to assess any
intrusion of project traffic into the Sandpointe Neighborhood.
If traffic intrusion is attributable to the project,
corrective measures could include forced-turn channelization,
semi-diverters, diagonal diverters and cul-de-sacs.
91. Prior to issuance of building occupancy permits, the project
developer shall develop a parking plan in cooperation with the
City of Santa Ana to ensure that parking needs are met.
92. Prior to issuance of building occupancy permits the project
developer shall pay a fair-share contribution for restriping a
second eastbound right-turn lane at the intersection of Main
Street and Sunflower in order to achieve LOS D for 2025.
93. Prior to issuance of grading permits, the project developer
shall coordinate with SCE to determine the exact location of
all underground and overhead electrical facilities. All
electrical facilities and associated structures to be left on
the project site shall be protected from damage.
94. Prior to issuance of grading permits, the project developer
shall ensure that grading plans reflect the under grounding of
utility lines serving the proposed project.
75A-109
MARCH 23, 2009
PAGE 16 OF 17
95. Prior to issuance of grading permits, the project developer
shall coordinate with Southern California Gas to determine the
exact location of all underground natural gas facilities. All
gas pipelines and associated structures to be left on the
project site must be protected from damage.
96. Prior to issuance of grading permits, the
shall coordinate with Adelphia Communication
exact location of all underground cable
developer shall protect all existing
associated structures to be left on the
damage.
project developer
is to determine the
facilities. The
cable lines and
project site for
97. Prior to issuance of grading permits, the project developer
shall coordinate with SBC Communications (formerly Pacific
Bell) to determine the exact location of all underground
telephone facilities. The developer shall protect all
existing telephone lines and associated structures to be left
on the project site from damage.
98. Prior to issuance of grading permits, the project developer
shall demonstrate to the City of Santa Ana that construction-
related waste generated on-site would be recycled wherever
feasible as the first choice of disposal method, leaving the
option of landfill disposal as a last alternative. The
proposed commercial uses shall incorporate facilities for
collection and pick-up of recyclable materials into the design
of the project.
99. Prior to issuance of grading permits, the project developer
shall coordinate with the Santa Ana Water Division to
determine the exact location of all existing underground water
supply facilities and take action to prevent damage to these
facilities to be left on the project site or interfere with
their operation. The project developer shall pay their fair
share amount for the necessary facilities to accommodate
project-related water supplies.
100. Prior to issuance of building permits, the existing eight-inch
sewer line along Hutton Centre Drive north of Sandpointe
Avenue, shall be replaced with a new 10-inch sewer line.
101. Prior to issuance of grading permits, the project developer
shall coordinate with Waste Management on the type and
location of facilities needed to provide solid waste disposal
service to the project site.
75A-110
MARCH 23, 2009
PAGE 17 OF 17
102. Prior to issuance of grading permits, the project developer
shall perform soil testing to determine is soil to be
excavated from the site will require off-site disposal. If
the soil is found to be contaminated, it will be properly
disposed of in compliance with California environmental laws,
regulations and policies.
B. Police Department
1. A security plan must be submitted to the Police Department at
the plan check stage for approval. The plan must cover all
aspects of the projects security including security personnel,
surveillance equipment, and hardware. The project will be
required to have a minimum of four state licensed uniformed
security personnel. One security officer will be required for
each building, one for the podium level and one for the
parking garage.
2. A minimum 12-inch shatterproof convex mirror shall be
installed at each stair landing. All doors leading into
stairwells shall be equipped with a minimum 5-inch by 20-inch
fire rated window. The last flight of stairs shall be fully
enclosed at its base.
3. The City of Santa Ana parking structure design standards shall
be followed in its entirety. Duress alarms allowing voice
communication with security personnel shall be placed in
strategic locations, approved by the Police Department,
throughout the parking garage.
4. All project walkways shall be illuminated to a minimum
maintained one footcandle of light.
5. All elevators serving the residential component of the project
shall be equipped with card readers at the garage levels to
restrict unauthorized access into the residential towers. The
elevator lobbies shall be designed and constructed of material
that allows maximum visibility of the interior of the lobby
from the parking decks. Glazing material will be used to its
maximum extent.
75A-111
Conditional Use
March 23, 2009
Page 1 of 2
Permit No. 2005-15
Findings of Fact
A. Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or
community?
The proposed multi-family residential use (Montage) at 100-130
East MacArthur Boulevard will provide a service to the
community by providing high-quality residential housing stocks
that will enhance the property value of the surrounding
neighborhoods. Conditions of approval have been included to
ensure the quality and the attractiveness of the overall design
which will contribute to the general well being of the
community.
B.
Will the proposed use under the circumstances of the particular case
be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity?
The proposed multi-family residential use in conjunction with
the rest of the MacArthur Place South development will not be
detrimental to persons residing and working in the area. The
short-term and long-term unavoidable adverse impacts identified
in Environmental Impact Report No. 2004-02 as it pertains to
aesthetics, air quality, and traffic and transportation, a
statement of Overriding Considerations could be issued by
decision makers to balance the economic, legal, social, and
technological and/or other benefits of this project against the
unavoidable environmental impacts. Any other negative or
adverse impacts will be mitigated through mitigation measures
identified in Environmental Impact Report No. 2004-02.
C.
Will the proposed use adversely affect the present economic
stability or future economic development of properties surrounding
the area?
The proposed residential project will not adversely affect the
economic stability within the MacArthur Place South development
area. The multi-family residential component will provide
customer base to the retail and restaurant uses, which will
reinforce the economic viability of the project and will assist
in identifying the entire MacArthur Place South as a viable
mixed-use community.
7~,~IB'~~'2
Conditional Use Permit No. 2005-15
March 23, 2009
Page 2 of 2
D. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The project will be in compliance with all applicable
provisions of Chapters 34 and 41 of the Santa Ana Municipal
Code as well as the provisions of the SD-76 zoning district
except for the parking, tandem parking and setback
requirements. Three variances have been approved to deviate
from these standards.
E. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed project will not adversely affect the General Plan
as multi-family residential development and ancillary uses are
conditionally permitted within the Specific Development No. 76
(SD-76) zoning district. Policy 1.3 of the General Plan Land
Use Element encourages high-density residential development
within the City's District Centers. Also, Policy 1.4 promotes
the maintenance and fostering of a variety of residential land
uses in the city.
75A-113
MARCH 23, 2009
PAGE 1 OF 17
Conditions of Approval
Conditional Use Permit No. 2005-15 (Integral) is approved subject to
compliance, to the reasonable satisfaction of the Planning Manager, with
applicable sections of the Santa Ana Municipal Code, the California
Administrative Code, the Uniform Fire Code, the Uniform Building Code, and
all other applicable regulations. In addition, it shall meet the
following conditions of approval:
The applicant must comply with each and every condition listed below prior
to exercising the rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below
throughout the life of the development project. Failure to comply with
each and every condition may result in the revocation of the conditional
use permit approval.
A. Planning Division
1. All proposed site improvements must conform with the Site Plan
Review approval of DP No. 03-77.
2. Any amendment to this conditional use permit must be submitted
to the Planning Division for review. At that time, staff will
determine if administrative relief is available or the
conditional use permit must be amended.
3. Bedrooms are prohibited on the ground (first) floor of the
live/work loft units.
4. A Parking Management Plan documenting how the tandem parking
stalls will function must be submitted prior to building plan
check.
5. All parking for the project shall be made available free of
charge. Two parking spaces per dwelling unit shall be provided
as a part of the deed for each dwelling unit.
6. Signage to direct customers and guests to the adjacent parking
structure shall be provided. A directional sign plan needs to
be submitted and approved by the Planning Manager prior to
issuance of a certificate of occupancy.
7. The project shall incorporate on-site professional property
management for the residential component.
75~F'I~
MARCH 23, 2009
PAGE 2 OF 17
8. A gas fireplace shall be provided within the community room.
9. Conditions, Covenants and Restrictions (CC&Rs) shall be
provided for the project. At a minimum, the CC&Rs shall
include provisions pertaining to owner occupancy, restrictions
on home-based businesses, the prohibition of storage on
balconies and a restriction on truck delivery hours to non-peak
periods shall be submitted prior to building plan check.
10. Prior to submittal into building plan check, detailed elevations
shall be submitted to include exterior finishes, materials, and
colors subject to approval of the Planning Manager.
11. Prior to submittal into building plan check, detailed plans of
the pedestrian paseo shall be submitted that include
enhancements to landscape, hardscape, lighting and street
furniture subject to approval of the Planning Manager.
12. A Public Art Plan which proposes a specific work(s) of art for a
specific location(s) shall be submitted to the Planning
Commission for review and approval. All public art approved by
the Planning Commission shall be completely installed prior to
the issuance of a certificate of occupancy for the project.
13. A detailed landscape plan must be reviewed and approved prior
to issuance of any building permits. In addition to the
landscaping palette, the plan shall include details on the
materials, finishes and lighting for the Public Plaza at the
northwest corner of site as well as the overall hardscape
design, lighting concepts and outdoor furniture for the
project. At a minimum, the project shall incorporate the
amount and size of landscaping as shown on Sheet MLPl.l and
the conceptual landscaping plans for the project. The exact
specifications for these items are subject to the review and
approval of the Planning Commission.
14. After project occupancy, landscaping is to be maintained to
include the minimum level of plant materials installed at the
time of occupancy as required by the approved plans.
75A-115
MARCH 23, 2009
PAGE 3 OF 17
15. A detailed water feature plan must be reviewed and approved
prior to issuance of any building permits. The plan shall
include a minimum of three water features as shown on Exhibit 3
(Integral site plan), design details, hardscape design and
lighting concepts and an installation plan. The exact
specifications for these items are subject to review and
approval of the Planning Commission. The water feature(s)
shall be maintained in the same condition as installed at the
time of occupancy.
16. The following items must be included as exterior amenities for
the development: A pool and spa, lounge deck, outdoor gas
fireplace, shade structure, fitness room and clubroom within
Recreation Area l; and a game table, seating area, barbeque
and tot lot within Recreation Area 2. In addition,
landscaping consisting of both trees and plant materials shall
be provided. The exact specifications for these items must be
shown on a detailed plan and are subject to the review and
approval of the Planning Commission. The exterior amenities
shall be maintained in the same condition as installed at the
time of occupancy.
17. The interior courtyard improvements for the project shall be
completely installed prior to the release of utilities for any
unit within its respective phase of this project.
18. An interior amenity plan of the fitness room and club room
must be reviewed and approved prior to issuance of any
building permits. The plan shall include details on the
various finishes and equipment to be provided in these rooms.
At a minimum, the following items must be included as interior
amenities within the common areas: Granite counter tops or
equivalent, hardwood flooring or equivalent, tiled bathroom
and shower walls, and a gas fireplace. The exact
specifications for these items are subject to the review and
approval of the Planning Manager. The interior amenities
shall be maintained in the same condition as installed at the
time of occupancy.
19. The following items must be included as interior amenities
within each unit: granite counter tops or equivalent, hardwood
flooring or equivalent, General Electric Monogram appliances
or equivalent, tiled bathroom and shower walls, individual
laundry hook-ups, stain grade hard wood cabinets and
fireplaces. The exact specifications for these items are
subject to the review and approval of the Planning Manager.
75A-116
MARCH 23, 2009
PAGE 4 OF 17
20. Pedestrian walkways shall be provided through all lots to
establish pedestrian pathways throughout the development as
shown on Exhibit 13. The amenities to be provided along this
pathway shall include decorative concrete and paving, accent
lighting, and landscape planters as shown on the plans. The
materials and design of the walkway is subject to the review
and approval of the Planning Manager. The improvements in
each phase must be completed prior to occupancy of the first
unit in the respective phases.
21. One storage locker shall be provided for each residential
unit. The lockers shall be available at no cost to the
residents and shall be a minimum of 250 cubic feet in size.
22. Smart wiring, including cable television and high-speed cable
for computers, shall be provided for each unit and within the
project's common areas.
23. A directional sign plan needs to be submitted and approved by
the Planning Manager prior to issuance of a certificate of
occupancy.
24. Construction workers for the project shall be prohibited from
parking in the adjacent neighborhoods.
25. Prior to issuance of building permits, a Waste Management Plan
shall be submitted to the Planning Manager for approval. The
plans shall include information on items such as pick-up,
delivery, and types of bins required.
26. Prior to occupancy of any units, a rental housing execution plan
must be submitted to the Planning Manager for review and
approval. At a minimum the plan shall identify the location of
employee and visitor parking, the location of the rental office,
hour of operation for the rental office, and signage affiliated
with the Rental Housing Operational Plan. In addition, the
rental plan must clearly note that the parking and project
amenities must be provided free of charge to the residence.
(Added by the Planning Commission on March 23, 2009)
75A-117
MARCH 23, 2009
PAGE 5 OF 17
Mitigation Measures
27. Prior to issuance of building permits, the project developer
shall ensure that the building plans reflect the following
information: outdoor lighting fixtures adjacent to exterior
doors and within walkways and parking lots shall generate a
minimum 1.0 foot candle level of light during normal operation
hours. During non-operating hours outdoor lighting fixtures
shall generate no less than .25 foot candle level of light.
All lighting shall be directed towards the interior of the
project site.
28. Prior to issuance of building permits, building plans for the
proposed project shall reflect the use of non-reflective
building materials to minimize light and glare impacts.
29. Prior to the issuance of building permits, a Final Landscape
Plan for each building component of the project shall be
approved by the City of Santa Ana Planning and Building
Agency. The Final Landscape Plan shall be based on the
conceptual landscape plan included in the EIR.
30. Prior to issuance of Certificate of Occupancy Permits, the
required landscaping for each building component of the
project shall be installed to the satisfaction of the City of
Santa Ana Planning Department.
31. Prior to the issuance of a building permit, the project
developer shall provide the Planning Manager plans that
incorporate lighting and any other conditions in the manner
required by the FAA during the construction phase (e.g. for
the cranes) and after completion.
32. Pursuant to state law, prior to issuance of a certificate of a
use and occupancy permit, the project proponent shall provide
evidence to the City of Santa Ana that a Notice of Airport in
the vicinity has been recorded on the deed for each
residential unit and shall remain so recorded so as long as
the airport is in operation.
75A-118
MARCH 23, 2009
PAGE 6 OF 17
33. As required by the AELUP, prior to issuance of the certificate
of use and occupancy, the City shall ensure that the sales
office for the residential unit posts a conspicuous sign
informing potential buyers to the presence of the airport.
The notice shall be in the same language as the need notice.
34. Prior to the issuance of a building permit, the project
developer shall provide evidence to the Planning Manager that
an FAA "NO Hazard" determination has been secured for the
operation of the construction cranes. The project developer
shall demonstrate compliance with any conditions imposed by
the FAA.
35. During construction, the contractor shall be required to
comply with SCAQMD Fugitive Dust Rule 403 to suppress dust
generated by construction operations. To ensure compliance
with SCAQMD Fugitive Dust Rule 403, grading plans and
demolition plans for the proposed project shall reflect the
following notes:
• All materials excavated or graded shall be sufficiently
watered to prevent excessive amounts of dust. Watering with
complete coverage shall occur at least twice daily, once in
the late morning and once after work is done for the day.
• All clearing and earthwork activities shall cease during
periods of high winds (winds greater than 25 mph averaged
over one hour) or during Stage 1 or Stage 2 smog episodes.
• Internal roadways and project site entry and exit points
shall be cleaned at the end of each day by the project
developer. Dust and debris from construction activities
that migrates or is carried onto MacArthur Boulevard or Main
Street adjacent to the project site shall also be cleaned
each day.
• All material transported off-site shall either be
sufficiently watered or securely covered to prevent
excessive amounts of dust. Haul trucks leaving the site
shall have a minimum freeboard distance of 12-inches.
• Construction equipment leaving the project site shall be
wheel washed.
75A-119
MARCH 23, 2009
PAGE 7 OF 17
• The amount of area disturbed by clearing and earthwork
activities shall be minimized at all times.
• Equipment engines shall be maintained in good condition and
in proper tune according manufacturer's specifications.
• To the extent feasible, construction equipment shall use
alternative clean fuels such as compressed natural gas
equipment with oxidation catalysts. If alternative clean
fuels are not feasible, gasoline powered construction
equipment shall be used.
• Construction equipment operating on diesel fuel shall use
particulate filters or low sulfur diesel.
• To the extent feasible construction operations shall use
electricity from power poles in-lieu of temporary diesel or
gasoline-powered generators.
36. Prior to commencement of construction activities, the project
developer shall identify to the City a construction relations
officer to act as a community liaison concerning on-site
activity, including resolution of issues related to dust
generation from grading/paving activities. A publicly visible
sign shall be posted with the name of construction relations
officer and a telephone number.
37. During finish work, the construction contractor shall ensure
the minimization of ROG emissions. Building plans for the
project shall specify and require the use of pre-coated
building materials, use of high pressure-low volume (HPLV)
paint applicators with 50 percent efficiency, and use of lower
volatility paint not to exceed 100 grams of ROG per liter.
38. During construction and grading activities, the developer's
construction contractor shall comply with the measures set
forth in the Storm Water Pollution Prevention Plan (SWPPP) to
ensure that airborne dust is kept to a minimum.
39. Prior to issuance of building permits and to the extent
feasible, building plans for the proposed project shall
reflect the use of the following measures.
75A-120
MARCH 23, 2009
PAGE 8 OF 17
• Use low-polluting high energy-efficient appliances
• Install solar panels on roofs to supply electricity for
heating and cooling
• Use double-paned windows to reduce thermal loss
• Install automatic lighting on/off controls and energy-
efficient lighting
• Use light colored roofing materials in new construction to
deflect heat away from buildings.
40. During grading operations special handling of on-site soils
shall be required, due to the high moisture content of the
soils, which is well above optimum moisture conditions. The
City of Santa Ana shall monitor the grading contractor to
ensure stabilization of the soils during grading prior to
placing and compacting fill soils over wet sub-grade soils, as
recommended in the geotechnical investigation prepared by
Geotechnical Professionals, Inc.
41. Prior to issuance of building permits, the project developer
shall ensure that pile foundations are incorporated into the
project design to mitigate the potential settlement hazards
beneath the proposed buildings. Pile foundations shall be
installed according to the recommendations provided in the
project geotechnical report.
42. Prior to issuance of building permits, the project developer
shall ensure that the subterranean portion of the structures
is designed and installed to resist hydrostatic pressure and
be a water-proof barrier between the existing soils and
subterranean portions of the buildings. This design and
installation shall be consistent with the recommendations
provided in the project geotechnical report.
43. Prior to initiation of project grading, the project developer
shall ensure that all existing utilities will be relocated,
abandoned and removed, rerouted, or protected in coordination
with the project developer and affected utility companies.
44. Prior to issuance of a grading permit for project
construction, the project developer shall ensure that a Final
Geotechnical Report on the project site is prepared. All
recommendations from this Final Geotechnical Report shall be
incorporated into the final grading plan for the project.
75A-121
MARCH 23, 2009
PAGE 9 OF 17
45. Prior to issuance of building permits, the project developer
shall ensure that all structures on the site are designed in
accordance with the seismic design provisions set forth in the
Final Geotechnical Report and the Uniform Building Code in
order to promote safety in the event of a seismic event.
46. Prior to issuance of grading permits, the project developer
shall determine and demonstrate to the City of Santa Ana that
the foundation piles for the project would not intrude into
the Orange County groundwater basin. In the event the
foundations intrude into the groundwater basin, the project
developer shall obtain approval and/or permits from the Orange
County Water District and the Regional Water Quality Control
Board. Any measures required by these agencies will be
incorporated into the final design and construction
specifications for the project.
47. Prior to issuance of grading permits the project developer
shall ensure that provisions set forth in the Final
Geotechnical Report regarding dust control measures during
site preparation, grading and construction are incorporated
into the final construction specifications for the project.
48. Prior to issuance of Certificate of Occupancy permits, the
project developer shall submit to the City of Santa Ana CC&Rs
for each residential project. The CC&Rs shall outline the
environmental awareness, conditions and Best Management
Practices regarding the handling and storage of hazardous
materials as identified in the Water Quality Management Plan
for MacArthur Place South.
49. Prior to issuance of grading permits, the project developer
shall provide proof to the City of Santa Ana of an NPDES
permit from the RWQCB for on-site dewatering activities.
50. The residential management companies shall ensure that post-
construction Best Management Practices (BMP's) are strictly
adhered to by all building occupants and tenants.
51. Prior to issuance of a demolition permit, the project
developer shall prepare an asbestos survey to determine the
presence of asbestos containing building materials. The
survey shall be submitted to the City's Environmental
Coordinator for review. If asbestos is identified, proper
precautions shall be taken during demolition in compliance
with California environmental laws, regulations and policies.
75A-122
MARCH 23, 2009
PAGE 10 OF 17
52. Prior to issuance of a demolition permit, the project
developer shall prepare a lead paint survey to determine the
presence of lead based paint. The survey shall be submitted
to the City's Environmental Coordinator for review. If lead
based paint or mercury is identified, proper precautions shall
be taken during demolition in compliance with California
environmental laws, regulations and policies.
53. Prior to occupancy of residential units, the project developer
shall ensure that CC&Rs for the community homeowners
associations are recorded specifying maintenance
responsibilities for all BMP's identified in the Water Quality
Management Plan.
54. Prior to issuance of a grading permit for the project, the
project developer shall prepare and submit a Notice of Intent
(NOI) to the State Water Resources Control Board (SWRCB) The
developer will also submit the NOI and the project Water
Discharge identification Number (WDIN) provided by the SWRCB
to the City of Santa Ana City Engineer.
55. During all site preparation, grading and construction, the
project developer shall ensure that the project contractor
complies with all applicable requirements of the NPDES permit,
the Drainage Area Management Plan (DAMP), and the City's Local
Implementation Plan (LIP). BMP's from the DAMP and the LIP
will be implemented by the project contractors, as appropriate
during site preparation, grading and construction.
56. Prior to issuance of a grading permit, the project developer
shall prepare a Final Storm Water Pollution Prevention Plan
(SWPPP). This plan shall be submitted and approved by the
City Engineer prior to initiation of any grading activity.
The project shall maintain the SWPPP on the construction site
throughout the construction period.
57. During all site preparation, grading and construction, the
project developer shall ensure that its contractor implements
the provisions of the SWPPP.
58. Prior to the issuance of grading permits, the project
developer shall submit a Final Water Quality Management Plan
(WQMP) based on the Final Grading Plan, to be approved by the
City's Director of Public Works. The WQMP shall be consistent
with the DAMP and shall contain provisions and BMP's for
construction and operation conditions.
75A-123
MARCH 23, 2009
PAGE 11 OF 17
59. Prior to the issuance of building permits, the project
developer shall pay the City's drainage impact fee.
60. Prior to the issuance of grading permits, the project
developer shall verify that structural BMP's have been
permanently incorporated into project plans. Such BMP s shall
ensure that pollutants from project-related storm water runoff
are mitigated consistently with applicable state and local
standards.
61. Prior to issuance of grading permits, the project developer
shall submit a final drainage plan to the City identifying the
exact size and location of drainage facilities.
62. Prior to issuance of grading permits, the project developer
shall provide proof of an NPDES permit from RWQCB to the City
for onsite dewatering activities.
63. Prior to issuance of building permits for tenant improvements
for restaurant uses, the project developer shall ensure that
the proposed restaurants are fitted with grease interceptors
to the size and capacity as designated by the City of Santa
Ana Building Division.
64. Prior to issuance of building permits, building plans shall
reflect the construction of noise barriers to ensure an
exterior noise level of 65 CNEL or less around patios and
balconies that are considered open space by the City of Santa
Ana. The barriers shall be constructed of materials that
provide a surface density of at least four pounds per square
foot and shall be continuous (without gaps or gates). The
height of the barriers shall be sufficient to reduce the
exterior noise level to a CNEL of 65 dB or less, and shall be
determined by a qualified acoustical consultant as part of the
final engineering design of the project.
65. Prior to issuance of building permits, building plans shall
specify the STC rating of windows and doors for all
residential land uses. Window and door ratings shall be
sufficient to reduce the interior noise level to a CNEL of 45
dB or less, and shall be determined by a qualified acoustical
consultant as part of the final engineering design of the
project.
75A-124
MARCH 23, 2009
PAGE 12 OF 17
66. Prior to building occupancy, mechanical ventilation shall be
installed at the proposed condominiums and residential towers
since the interior CNEL standard of 45 dB is to be met with
all windows and doors closed.
67. Prior to building occupancy, to the extent possible, all
equipment shall be enclosed within a building or separate
structure. Where this is not possible, barriers may be
necessary to shield the equipment from the existing and
proposed residential buildings. Depending on the size and
style of the equipment, silencers in the intake and exhaust
ducts may also be necessary to reduce noise at the residential
buildings to an acceptable level.
68. Upon project completion, truck deliveries to the restaurant
and the retail building shall be restricted to the hours of
7:00 a.m. to 10:00 p.m. Delivery trucks shall not be
permitted to idle in the parking lots or loading areas and
shall be required to have properly maintained, factory
approved mufflers. Delivery truck drivers shall be encouraged
to minimize acceleration and maintain reduced vehicle speeds
while onsite.
69. Demolition and construction plans for the proposed project
shall reflect the following note: "During demolition and
construction, the contractor shall adhere to all City Noise
Ordinance requirements to limit all construction activity,
including equipment start-up, to between the hours of 7:00
a.m. and 8:00 p.m. Mondays through Saturdays. No construction
shall take place on Sundays or federal holidays.
70. During demolition and construction, the contractor shall site
all construction staging and storage areas away from sensitive
receptors to the furthest extent possible.
71. During construction activities, the project developer shall
ensure that all pile driving equipment shall be enclosed on
all sides with an acoustical blanket barrier that provides a
minimum sound transmission class (STC) rating of 30. The
height of the blanket enclosure shall be at least 20 feet.
With the exception of points of access to the enclosure area,
there shall be no openings or gaps in the enclosure, and all
points of access are to remain closed during pile driving
activities.
75A-125
MARCH 23, 2009
PAGE 13 OF 17
72. Prior to issuance of grading or demolition permits, the
project developer shall submit a construction equipment
staging plan to the City of Santa Ana for approval.
73. Prior to the start of construction activity, the project
developer shall post the name and telephone number of the
construction relations officer on-site.
74. Prior to any site preparation, grading or construction, the
project contractor shall provide to resident associations in
the Sandpointe neighborhood, the Main Attraction Condominiums
and the Pinnacle Apartments a project schedule indicating the
type of construction activity and duration, construction
staging areas and the name and telephone number of the
construction relations officer.
75. Prior to issuance of occupancy permits, the project developer,
at the project developer's sole expense, shall conduct a noise
monitoring analysis to ensure that residential units achieve
an interior noise level of 45 dB CNEL. The analysis shall be
conducted by a qualified acoustical consultant and shall be
submitted to the City's Planning and Building Agency for
review.
76. Prior to issuance of a building permit, the project developer
shall coordinate any required relocation of fire hydrants on
the property with Santa Ana Fire Department. Final approval
from the Fire Department is required regarding location of
hydrants on the project site.
77. Prior to issuance of a grading permit, the project developer
shall submit building plans to the Santa Ana Police Department
in order to ensure compliance with the City of Santa Ana's
Building Security Ordinance. The Police Department must
approve the building plans with regard to the Building
Security Ordinance prior to initiation of grading.
78. Prior to issuance of a building permit, the project developer
shall prepare a Mandated Security Plan, which would need final
Police department approval. The plan is required to address
issues such as onsite uniform security staffing, restriction
of hours of operation for the parking garages, implementation
of electronic security, mechanical surveillance, and
compliance with the basic principles of Crime Prevention
Through Environmental Design.
75A-126
MARCH 23, 2009
PAGE 14 OF 17
79. Prior to issuance of a building permit, the project developer
shall comply with Senate Bill 50 and pay applicable school
impact fees. Currently, the Santa Ana Unified School
District's adopted Fee Justification for residential
development is $2.14 per square foot and $0.33 per square foot
for commercial development.
80. Prior to issuance of a building permit, the project developer
shall ensure that the appropriate park Acquisition and
Development Fee and parkland dedication or in-lieu payments
have been made.
81. Prior to issuance of building permits, the project developer
shall submit a Construction Phasing Plan to Santa Ana Fire
Department. The plan must be consistent with the Fire
Department Fire Code requirements and must show that emergency
access to the construction site is adequate.
82. Prior to issuance of building permits, the project developer
shall provide evidence to the Santa Ana Fire Department that
the proposed fire protection and life saving systems
incorporated in the project are adequate.
83. Prior to issuance of building permits, the project developer
shall submit the final design of the project, including fire
sprinklers system design to the Santa Ana Fire Department for
approval.
84. Prior to issuance of building permits, the project developer
shall coordinate with the Santa Ana Fire Department and the
Santa Ana Police Department regarding possible radio
interference and installation of radio repeaters on a tower
rooftop.
85. Prior to issuance of building occupancy permits, the project
developer in cooperation with the City of Santa Ana, shall
provide for the restriping of the outside southbound through
lane at the intersection of Main Street and Sunflower to a
shared through and right turn lane.
86. Prior to issuance of building occupancy permits, the project
developer in cooperation with the City of Santa Ana, shall
provide for the restriping the shared through right-turn lane
at Hutton Centre Drive and MacArthur Boulevard to provide an
exclusive through lane and construct a second northbound right
turn lane for the northbound traffic.
75A-127
MARCH 23, 2009
PAGE 15 OF 17
87. Prior to issuance of building occupancy permits, the project
developer shall pay for the construction of a third eastbound
through lane on MacArthur Boulevard between Hutton Centre
Drive/Imperial Promenade and the SR-55 northbound on-ramp.
88. Prior to the issuance of building occupancy permits, the
project developer in cooperation with the City of Santa Ana,
shall provide for the installation of a traffic signal at
Hutton Centre Drive and Hutton Centre Loop.
89. Prior to issuance of building occupancy permits, the project
developer shall pay for the construction of a fourth eastbound
lane on MacArthur Boulevard between Hutton Centre
Drive/Imperial Promenade and the SR-55 southbound on-ramp.
90. Prior to issuance of building occupancy permits, the project
developer shall contribute $200,000 for the City of anta Ana
to prepare a neighborhood traffic study to assess any
intrusion of project traffic into the Sandpointe Neighborhood.
If traffic intrusion is attributable to the project,
corrective measures could include forced-turn channelization,
semi-diverters, diagonal diverters and cul-de-sacs.
91. Prior to issuance of building occupancy permits, the project
developer shall develop a parking plan in cooperation with the
City of Santa Ana to ensure that parking needs are met.
92. Prior to issuance of building occupancy permits the project
developer shall pay a fair-share contribution for restriping a
second eastbound right-turn lane at the intersection of Main
Street and Sunflower in order to achieve LOS D for 2025.
93. Prior to issuance of grading permits, the project developer
shall coordinate with SCE to determine the exact location of
all underground and overhead electrical facilities. All
electrical facilities and associated structures to be left on
the project site shall be protected from damage.
94. Prior to issuance of grading permits, the project developer
shall ensure that grading plans reflect the under grounding of
utility lines serving the proposed project.
75A-128
MARCH 23, 2009
PAGE 16 OF 17
95. Prior to issuance of grading permits, the project developer
shall coordinate with Southern California Gas to determine the
exact location of all underground natural gas facilities. All
gas pipelines and associated structures to be left on the
project site must be protected from damage.
96. Prior to issuance of grading permits, the
shall coordinate with Adelphia Communication
exact location of all underground cable
developer shall protect all existing
associated structures to be left on the
damage.
project developer
is to determine the
facilities. The
cable lines and
project site for
97. Prior to issuance of grading permits, the project developer
shall coordinate with SBC Communications (formerly Pacific
Bell) to determine the exact location of all underground
telephone facilities. The developer shall protect all
existing telephone lines and associated structures to be left
on the project site from damage.
98. Prior to issuance of grading permits, the project developer
shall demonstrate to the City of Santa Ana that construction-
related waste generated on-site would be recycled wherever
feasible as the first choice of disposal method, leaving the
option of landfill disposal as a last alternative. The
proposed commercial uses shall incorporate facilities for
collection and pick-up of recyclable materials into the design
of the project.
99. Prior to issuance of grading permits, the project developer
shall coordinate with the Santa Ana Water Division to
determine the exact location of all existing underground water
supply facilities and take action to prevent damage to these
facilities to be left on the project site or interfere with
their operation. The project developer shall pay their fair
share amount for the necessary facilities to accommodate
project-related water supplies.
100. Prior to issuance of building permits, the existing eight-inch
sewer line along Hutton Centre Drive, north of Sandpointe
Avenue shall be replaced with a new 10-inch sewer line.
101. Prior to issuance of grading permits, the project developer
shall coordinate with Waste Management on the type and
location of facilities needed to provide solid waste disposal
service to the project site.
75A-129
MARCH 23, 2009
PAGE 17 OF 17
102. Prior to issuance of grading permits, the project developer
shall perform soil testing to determine is soil to be
excavated from the site will require off-site disposal. If
the soil is found to be contaminated, it will be properly
disposed of in compliance with California environmental laws,
regulations and policies.
B. Police Department
1. A security plan must be submitted to the Police Department at
the plan check stage for approval. The plan must cover all
aspects of the projects security including security personnel,
surveillance equipment, and hardware. The project will be
required to have a minimum of four state licensed uniformed
security personnel. One security officer will be required for
each building, one for the podium level and one for the
parking garage.
2. A minimum 12-inch shatterproof convex mirror shall be
installed at each stair landing. All doors leading into
stairwells shall be equipped with a minimum 5-inch by 20-inch
fire rated window. The last flight of stairs shall be fully
enclosed at its base.
3. The City of Santa Ana parking structure design standards shall
be followed in its entirety. Duress alarms allowing voice
communication with security personnel shall be placed in
strategic locations, approved by the Police Department,
throughout the parking garage.
4. All project walkways shall be illuminated to a minimum
maintained one footcandle of light.
5. All elevators serving the residential component of the project
shall be equipped with card readers at the garage levels to
restrict unauthorized access into the residential towers. The
elevator lobbies shall be designed and constructed of material
that allows maximum visibility of the interior of the lobby
from the parking decks. Glazing material will be used to its
maximum extent.
75A-130
ORDINANCE NO. NS -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING AN AMENDMENT TO THE
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SANTA ANA AND NDC SKYLINE ASSOCIATES, LLC
THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS:
SECTION 1: The City Council hereby finds, determines and declares as follows:
A. The City is authorized pursuant to Government Code Sections 65864
through 65869.5 to enter into development agreements with persons having legal or
equitable interests in real property for the purpose of establishing certainty for both City
and owner in the development process.
B. The City enters into this Amendment to Development Agreement pursuant
to the provisions of the Government Code and applicable City policies.
C. The Planning Commission has, following a duly noticed public hearing, on
March 23, 2009, recommended approval of this Amendment to Development Agreement.
D. Entering into this Amendment to Development Agreement would provide
the City with extraordinary and significant benefits that are of regional significance,
relate to existing deficiencies in public facilities, require the owner of MacArthur Place
South to contribute a greater percentage of benefits than would otherwise be required,
and represent benefits which would not otherwise be required as part of the
development process.
E. The City Council has held a noticed public hearing on this Ordinance, and
has considered all testimony presented thereto.
F. The previously adopted and certified Final Environmental Impact Report
(EIR) for the Nexus Project, No. ER 2004-02, adequately describes and analyzes the
impacts of this proposed ordinance, and no additional review under the California
Environmental Quality Act is required. The new activity (the option of rental of residential
units) does not affect the scope of the original project, nor create new impacts. The City
has performed a traffic analysis of the difference between for-rent and for-sale units in the
project, and this analysis has been included in the Addendum for said Final EIR for
consideration of Item 75.B. for tonight's public meeting, and is incorporated herein by this
Ordinance No. NS-
raye L
75A-131
reference.
G. The proposed project will not adversely affect the General Plan, as is
expressly set forth in the Request for Council Action dated May 4, 2009, together with
all supporting documents, including but not limited to proposed resolutions, which are
incorporated herein by this reference.
SECTION 2: The Amendment to Development Agreement, a true and correct
copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager
and Clerk of the Council are authorized to execute it on behalf of the City with such
nonsubstantive changes as may be authorized by the City Manager and City Attorney.
The Clerk of the City is hereby authorized and directed to cause this Development
Agreement to be recorded with the County Recorder's Office. In case of any dispute
between the terms or effect of Tentative Tract Map No. 2008-04 and the terms or effect of
the Development Agreement, the Development Agreement shall prevail.
SECTION 3: This ordinance shall not be effective unless and until Resolution No.
2009-XXX is adopted and become effective. If said resolution is for any reason held to be
invalid or unconstitutional by the decision of any court of competent jurisdiction, or
otherwise do not go into effect for any reason, then this ordinance shall be null and void
and have no further force and effect.
SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby declares that
it would have adopted this ordinance and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
ADOPTED this day of , 2009.
Miguel A. Pulido
Mayor
Ordinance No. NS-
Page 2
75A-132
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on ,and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS-
Page 3
75A-133
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30 P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE & 6103
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
NDC SKYLINE ASSOCIATES, LLC
Dated: , 2009
Ordinance No. NS-
EXHIBIT 1
75A-134
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA, and
NDC SKYLINE ASSOCIATES, LLC,
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Second Amendment") 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 NDC SKYLINE
ASSOCIATES, LLC, a Delaware limited liability company ("Skyline").
1. Reference to Facts. This Second Amendment is entered into with reference to the
following facts:
1.1 Capitalized terms not defined herein shall have the meaning set forth in the
Development Agreement.
1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and
The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City,
on the other hand, entered into that certain Development Agreement dated August 4, 2005 and
recorded in the Orange County Official Records on July 21, 2005 as Instrument No.
2005000565108 (as amended, the "Development Agreement") pursuant to which, among other
things, Owner (as defined in the Development Agreement) was granted the vested right to develop
a mixed use Project with residential condominiums and office/commercial/retail uses, as more
particularly described therein. GP1 and GP2 subsequently assigned its rights and obligations under
the Development Agreement with respect to Lake Towers to Skyline, and GP1 assigned its rights
and obligations under the Development Agreement with respect to the Integral Project to Integral
Communities I, Inc., a Delaware corporation.
1.3 The original Development Agreement and Entitlements specified that the
Lake Towers Element of the Project as consisting of two (2) towers with "for-sale" condominium
units.
1.4 Lake Towers is nearing completion and, concurrently herewith, the City has
approved certain modifications to existing Entitlements (including, Conditional Use Permit No.
2005-10) to permit Skyline to rent (and offer for rental) some or all of the Residential Units
comprising Lake Towers (irrespective of whether any Residential Units are sold to third party
purchasers).
1.5 In connection with the foregoing, Skyline and City now desire to amend the
Development Agreement to provide Skyline with the ability to rent (and offer for rental) some or all
of the Residential Units comprising Lake Towers in accordance with applicable Entitlements.
2. Right to Rent. Skyline and the City hereby acknowledge and agree that Skyline 1
have the right to rent (and offer for rental) some or all of the Residential Units comprising Lake
Towers, in accordance with applicable Entitlements. The foregoing shall in no way be deemed to
impose an obligation on Skyline to rent (or offer for rental) any or all of the Residential Units, or
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2
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75A-135
preclude Skyline from selling and renting (and offering for sale and rental) the Residential Units
concurrently.
3. Modification of Certain Provisions. The Development Agreement is hereby amended
and supplemented in the following particulars:
3.1 Section 1.1(1). The phrase "for-sale residential condominiums" appearing in
Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "for-sale
condominium units/for-rent residential units."
3.2 Section 2.43(1). The phrase "three hundred fifty (350) for sale residential
condominium units" appearing in Section 2.43(1) of the Development Agreement is hereby
amended and restated to read as "three hundred forty-nine (349) for-sale condominium units/for-
rent residential units."
3.3 Section 2.50. The phrase "each of the for sale residential units" appearing in
Section 2.50 of the Development Agreement is hereby amended and restated to read as "each of the
for-sale (and with respect to Lake Towers, if applicable, the for-rent) residential units."
3.5 Section 4.1. Clause (ii) appearing in Section 4.1 of the Development
Agreement is hereby amended and restated to read in its entirety as follows:
"(ii) the granting of Certificates of Occupancy (or similar permission to occupy) for
the final Element of the Project and, except with respect to Lake Towers, sale of all
Residential Units."
3.6 Section 4.2.1. Anew Section 4.2.1 is added to the Development Agreement
to read in its entirety:
4.2.1. Residential Rental Manager. Should Skyline exercise its option to rent the
Lake Towers prior to occupancy of the first rental unit, Skyline shall first obtain the
written consent of the City, acting in its reasonable discretion, of its proposed
residential rental manager. In exercising its reasonable discretion, the City, acting
through the City's Executive Director of Planning and Building Agency or designee,
shall limit its review to the experience and capabilities of the proposed residential
rental manager and shall approve any such proposed residential rental manager if it
has demonstrated experience or capabilities with respect to the managing rental
properties on the scale of the Lake Towers.
3.7 Section 4.3. Clause (f) appearing in Section 4.3 of the Development
Agreement is hereby amended and restated to read in its entirety as follows:
"Buyer's of Residential Units (and with respect to the Lake Towers Element, if
applicable, buyer's or tenant's of Residential Units).
4. Full Force and Effect; Counterparts. Except as amended herein the Development
Agreement shall remain in full force and effect in accordance with its terms. This Second
Amendment may be executed in any number of counterparts, all of which shall constitute one and the
same instrument.
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2nd amendment to development agreement3 lake tower only.doc
75A-136
IN WITNESS WHEREOF, this Second Amendment has been executed by the City of
Santa Ana and Skyline.
Dated this day of , 2009.
By
Approved as to Form:
By
JOSEPH W.FLETCHER
City Attorney
"CITY"
THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the
Constitution and laws of the State of California
DAVID N. REAM
City Manager
"SKYLINE"
NDC SKYLINE ASSOCIATES, LLC,
a Delaware limited liability company
By
Name
Its
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75A-137
STATE OF CALIFORNIA
COUNTY OF
ss.
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
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75A-138
STATE OF CALIFORNIA
COUNTY OF
ss.
On before me, ,Notary Public,
personally appeared ,who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
SIGNATURE OF NOTARY PUBLIC
4/28/2009 9:15:00 AM
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75A-139
KO- 4/27/09
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA APPROVING THE
AMENDMENT TO CONDITIONAL USE PERMIT
NO. 2005-10 AS CONDITIONED FOR THE
PROPERTIES LOCATED AT 9 AND 15
MACARTHUR PLACE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The applicant is requesting approval of an amendment to Conditional Use
permit No. 2005-10 to allow the rental of some or all units at the recently
completed Skyline Towers at 9 and 15 MacArthur Place.
B. On March 23, 3009, the Planning Commission held a duly noticed public
hearing and unanimously voted to recommend that the City Council:
1. Adopt an ordinance approving the second amendment to
Development Agreement No. 2005-02 with respect to Nexus/NDC
Skyline Towers.
2. Adopt a resolution approving the amendment to Conditional Use
Permit No. 2005-10 as conditioned.
C. On May 4, 2009, the City Council of the City of Santa Ana held a duly
noticed public hearing and at that time considered all testimony, written
and oral.
D. The application for the amendment to Conditional Use Permit No. 2005-10
has been filed with the City of Santa Ana seeking to allow the rental of
some or all units at the recently completed Skyline Towers at 9 and 15
MacArthur Place.
E. Santa Ana Municipal Code Section 41-638 and 41-649 authorizes the City
Council to grant a conditional use permit upon making certain findings.
1. Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or
community?
Resolution No. 2009-
Page 1 of 20
75A-140
The Skyline Towers multi-family residential project at 9 and 15
MacArthur Place will provide a service to the community by
providing high-quality residential housing stocks that will
enhance the property values of the surrounding
neighborhoods. Conditions of approval have been included to
ensure the quality and the attractiveness of the overall
design which will contribute to the general well being of the
community.
2. Will the proposed use under the circumstances of the particular case
be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity?
The proposed multi-family residential use, in conjunction with
the rest of the MacArthur Place South development, will not
be detrimental to persons residing and working in the area.
The short-term and long-term unavoidable adverse impacts
identified in Environmental Impact Report No. 2004-02
pertaining to aesthetics, air quality, and traffic and
transportation can be addressed through the adoption of
Statement of Overriding Considerations by the City Council to
balance the economic, legal, social, and technological and/or
other benefits of this project against the unavoidable
environmental impacts. Any other negative or adverse
impacts will be mitigated through mitigation measures
identified in Environmental Impact Report No. 2004-02.
3
Will the proposed use adversely affect the present economic stability
or future economic development of properties surrounding the area?
The proposed multi-family residential project will not adversely
affect the economic stability of the area. The multi-family
residential component will provide a customer base to the
retail and restaurant uses, which will reinforce the economic
viability of the project and will assist in identifying MacArthur
Place South as a viable mixed-use community.
4
Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The project will be in compliance with all applicable provisions
of Chapters 34 and 41 of the Santa Ana Municipal Code as
well as the provisions of the SD-76 zoning district except for
the parking, tandem parking and setback requirements.
Three variances have been approved to deviate from these
standards.
Resolution No. 2009-
Page 2 of 20
75A-141
5. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed project will not adversely affect the General
Plan as multi-family residential development and ancillary
uses are conditionally permitted within the Specific
Development No. 76 (SD-76) zoning district. Further,
General Plan Land Use Element Policy 1.3 supports high-
density residential development within the City's District
Centers as a part of a master-planned mixed-use
development. Also, Policy 1.4 promotes the maintenance and
fostering of a variety of residential land uses in the city.
Section 2. On June 20, 2005 the City Council approved and adopted Final
Environmental Impact Report No. 2004-02, the Mitigation Monitoring Program, and the
Statement of Overriding Considerations. In analyzing the amendments to this project, it
was determined that no new impacts are expected since the number of overall units, the
number of persons in the households and the income levels for the project will remain the
same. Therefore, in accordance with the California Environmental Quality Act, the
proposed project has been determined to be adequately evaluated in previously prepared
Environmental Impact Report No. 2004-02.
This resolution incorporates by reference, as though fully set forth herein,
Resolution No. 2005-063 and said Final Environmental Impact Report, Mitigation
Monitoring Program, and Statement of Overriding Considerations, and all of their
respective facts, findings and conclusions in support of this resolution and the findings
made herein. This resolution also incorporates by reference, as though fully set forth
herein, the Addendum to the Final Environmental Impact Report No. 2004-02 and the
mitigation monitoring program which came before the City Council on May 4, 2009 as
part of the public hearing for ZOA No. 2009-04, Amendment to DA No. 2005-02,
Amendment to CUP No. 2009-08 and Amendment to Variance No. 2009-02 as well as
the accompanying staff report and exhibits attached thereto; and the public testimony
written and oral for that hearing item.
Section 3. The City Council of the City of Santa Ana after conducting the public
hearing hereby approves the amendment to Conditional Use Permit No. 2005-10 as
conditioned in Exhibit "A" attached hereto and incorporated herein for the property
located 9 and 15 MacArthur Place. This decision is based upon the evidence submitted
at the abovesaid hearing, which includes but is not limited to: the Request for Council
Action dated May 4, 2009 and exhibits attached thereto; and the public testimony
written and oral, all of which are incorporated herein by this reference.
Section 4. This Resolution shall not be effective unless and until Ordinance No.
NS- becomes effective. If said ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not
go into effect for any reason, then this resolution shall be null and void and have no further
force and effect.
Resolution No. 2009-
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Section 5. This decision rendered by the City Council of the City of Santa Ana
is final and is subject to judicial review pursuant to California Code of Civil Procedure
section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the
Council's decision and these findings.
ADOPTED this day of May, 2009
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Kylee O. Otto
Assistant City Attorney
AYES:
Councilmembers
NOES: Councilmembers
ABSTAI N
NOT PRESENT
Councilmembers
Councilmembers
Resolution No. 2009-
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CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Resolution No. 2009-XXX to be the original resolution adopted by the City
Council of the City of Santa Ana on
Date:
Clerk of the Council
City of Santa Ana
Resolution No. 2009-
Page 5 of 20
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Conditions for Approval for Conditional Use Permit No. 2005-10
Conditional Use Permit No. 2005-10 (Skyline Towers) is approved subject to
compliance, to the reasonable satisfaction of the Planning Manager, with applicable
sections of the Santa Ana Municipal Code, the California Administrative Code, the
California Building Standards Code, and all other applicable regulations. In
addition, it shall meet the following conditions of approval:
The applicant must comply with each and every condition listed below rip or to
exercising the rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below throughout
the life of the development project. Failure to comply with each and every condition
may result in the revocation of the conditional use permit approval.
A. Planning Division
1. All proposed site improvements must conform with the Site Plan Review
approval of DP No. 03-79.
2. Any amendment to this conditional use permit must be submitted to the
Planning Division for review. At that time, staff will determine if
administrative relief is available or the conditional use permit must be
amended.
3. A Parking Management Plan documenting how the tandem parking stalls
will function must be submitted prior to building plan check.
4. The project shall incorporate on-site professional property management
for the residential component.
5. Balconies for the project shall maintain a minimum dimension of not less
than six feet in any direction.
6. Covenants, Conditions and Restrictions (CC&Rs) shall be provided for the
project. At a minimum, the CC&Rs shall include provisions pertaining to
owner occupancy, restrictions on home-based businesses, the prohibition
of storage on balconies, and a restriction on truck delivery hours to non-
peak periods shall be submitted prior to building plan check.
7. Prior to submittal into building plan check, detailed elevations shall be
submitted to include exterior finishes, materials, and colors subject to
approval of the Planning Manager.
Exhibit A
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8. All parking for the project shall be made available free of charge. Two
parking spaces per dwelling unit shall be provided as a part of the deed for
each dwelling unit.
9. A Public Art Plan which proposes a specific work(s) of art for a specific
location(s) shall be submitted to the Planning Commission for review and
approval. All public art approved by the Planning Commission shall be
completely installed prior to the issuance of a certificate of occupancy for the
project.
10. A detailed landscape plan must be reviewed and approved prior to
issuance of any building permits. In addition to the landscaping palette,
the plan shall include details on the hardscape design, lighting concepts
and outdoor furniture. At a minimum, the project shall incorporate the
amount and size of landscaping as shown on Sheet MLP1.1. The exact
specifications for these items are subject to the review and approval of the
Planning Commission.
11. After project occupancy, landscaping is to be maintained to include the
minimum level of plant materials installed at the time of occupancy as
required by the approved plans.
12. A detailed amenity deck plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include details on the
hardscape design, lighting concepts and outdoor furniture for the amenity
deck as well as an installation plan. The exact specifications for these
items are subject to the review and approval of the Planning Commission.
The amenity deck shall be maintained in the same condition as installed at
the time of occupancy.
13. A detailed water feature plan must be reviewed and approved prior to
issuance of any building permits. The plan shall include a minimum of one
water feature within the motor court, elevations, hardscape design, lighting
concepts and an installation plan. The exact specifications for these items
are subject to review and approval of the Planning Commission. The water
feature(s) shall be maintained in the same condition as installed at the time
of occupancy.
14. The following items must be included as exterior amenities for the
development: Enhanced paving in the motor court, enhanced paving on
the walkways, an outdoor fireplace, barbeque and a pool and spa on the
amenity deck. The exact specifications for these items are subject to the
review and approval of the Planning Commission.
15. An interior building amenity plan of the fitness rooms, lounge, yoga room
and spas must be reviewed and approved prior to issuance of any building
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permits. The plan shall include details on the various finishes and
equipment to be provided in these rooms. The exact specifications for
these items are subject to the review and approval of the Planning
Manager.
16. The following items must be included as interior amenities within the
common areas: Concierge services for the residents, granite counter tops,
hardwood flooring or equivalent, and gas fireplaces. The exact
specifications for these items are subject to the review and approval of the
Planning Manager.
17. The following items must be included as interior amenities within each
unit: granite counter tops or equivalent, hardwood flooring or equivalent,
General Electric Monogram appliances or equivalent, tiled bathroom and
shower walls, stain grade hard wood cabinets and individual laundry hook-
ups. The exact specifications for these items are subject to the review
and approval of the Planning Manager.
18. An elevator lobby plan of each lobby must be reviewed and approved prior
to issuance of any building permits. The plan shall include details on the
finishes and flooring to be provided. The exact specifications for these
items are subject to the review and approval of the Planning Manager.
19. Pedestrian walkways shall be provided through all lots to establish
pedestrian pathways throughout the development as shown on Exhibit 13.
The amenities to be provided along this pathway shall include decorative
concrete and paving, accent lighting, and landscape planters as shown on
the plans. The materials and design of the walkway is subject to the
review and approval of the Planning Manager. The improvements in each
phase must be completed prior to occupancy of the first unit in the
respective phases.
20. One storage locker shall be provided for each residential unit. The lockers
shall be available at no cost to the residents and shall be a minimum of
192 cubic feet in size.
21. Cast iron drain pipes shall be provided for the project.
22. Smart wiring, including cable television and high-speed cable for
computers, shall be provided for each unit and within the project's
common areas.
23. Signage to direct customers and guests to the adjacent parking structure
shall be provided. A directional sign plan needs to be submitted and
approved by the Planning Manager prior to issuance of a certificate of
occupancy.
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24. Construction workers for the project shall be prohibited from parking in the
adjacent neighborhoods.
25. Prior to issuance of building permits, a Waste Management Plan shall be
submitted to the Planning Manager for approval. The plans shall include
information on items such as pick-up, delivery, and types of bins required.
26. Prior to occupancy of any units, a rental housing execution plan must be
submitted to the Planning Manager for review and approval. At a minimum
the plan shall identify the location of employee and visitor parking, the
location of the rental office, hour of operation for the rental office, and
signage affiliated with the Rental Housing Operational Plan. In addition, the
rental plan must clearly note that the parking and project amenities must be
provided free of charge to the residence. (Added by the Planning
Commission on March 23, 2009)
Mitigation Measures
27. Prior to issuance of building permits, the project developer shall ensure
that the building plans reflect the following information: outdoor lighting
fixtures adjacent to exterior doors and within walkways and parking lots
shall generate a minimum 1.0 foot candle level of light during normal
operation hours. During non-operating hours, outdoor lighting fixtures
shall generate no less than .25 foot candle level of light. All lighting shall
be directed towards the interior of the project site.
28. Prior to issuance of building permits, building plans for the proposed
project shall reflect the use of non-reflective building materials to minimize
light and glare impacts.
29. Prior to the issuance of building permits, a Final Landscape Plan for each
building component of the project shall be approved by the City of Santa
Ana Planning and Building Agency. The Final Landscape Plan shall be
based on the conceptual landscape plan included in the EIR.
30. Prior to issuance of Certificate of Occupancy Permits, the required
landscaping for each building component of the project shall be installed
to the satisfaction of the City of Santa Ana Planning Department.
31. Prior to the issuance of a building permit, the project developer shall
provide the Planning Manager plans that incorporate lighting and any
other conditions in the manner required by the FAA during the
construction phase (e.g. for the cranes) and after completion.
32. Pursuant to state law, prior to issuance of a certificate of use and
occupancy permit, the project proponent shall provide evidence to the City
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of Santa Ana that a Notice of Airport in the vicinity has been recorded on
the deed for each residential unit and shall remain so recorded so as long
as the airport is in operation.
33. As required by the AELUP, prior to issuance of the certificate of use and
occupancy, the City shall ensure that the sales office for the residential
unit posts a conspicuous sign informing potential buyers to the presence
of the airport. The notice shall be in the same language as the need
notice.
34. Prior to the issuance of a building permit, the project developer shall
provide evidence to the Planning Manager that an FAA "No Hazard"
determination has been secured for the operation of construction cranes.
The project developer shall demonstrate compliance with any conditions
imposed by the FAA.
35. During construction, the contractor shall be required to comply with
SCAQMD Fugitive Dust Rule 403 to suppress dust generated by
construction operations. To ensure compliance with SCAQMD Fugitive
Dust Rule 403, grading plans and demolition plans for the proposed
project shall reflect the following notes:
• All materials excavated or graded shall be sufficiently watered to prevent
excessive amounts of dust. Watering with complete coverage shall
occur at least twice daily, once in the late morning and once after work is
done for the day.
• All clearing and earthwork activities shall cease during periods of high
winds (winds greater than 25 mph averaged over one hour) or during
Stage 1 or Stage 2 smog episodes.
• Internal roadways and project site entry and exit points shall be cleaned
at the end of each day by the project developer. Dust and debris from
construction activities that migrates or is carried onto MacArthur
Boulevard or Main Street adjacent to the project site shall also be
cleaned each day.
• All material transported off-site shall either be sufficiently watered or
securely covered to prevent excessive amounts of dust. Haul trucks
leaving the site shall have a minimum freeboard distance of 12 inches.
• Construction equipment leaving the project site shall be wheel washed.
• The amount of area disturbed by clearing and earthwork activities shall
be minimized at all times.
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• Equipment engines shall be maintained in good condition and in proper
tune according manufacturer's specifications.
• To the extent feasible, construction equipment shall use alternative
clean fuels such as compressed natural gas equipment with oxidation
catalysts. If alternative clean fuels are not feasible, gasoline powered
construction equipment shall be used.
• Construction equipment operating on diesel fuel shall use particulate
filters or low sulfur diesel.
• To the extent feasible construction operations shall use electricity from
power poles in-lieu of temporary diesel or gasoline-powered
generators.
36. Prior to commencement of construction activities, the project developer shall
identify to the City a construction relations officer to act as a community
liaison concerning on-site activity, including resolution of issues related to
dust generation from grading/paving activities. A publicly visible sign shall
be posted with the name of construction relations officer and a telephone
number.
37. During finish work, the construction contractor shall ensure the minimization
of ROG emissions. Building plans for the project shall specify and require
the use of pre-coated building materials, use of high pressure-low volume
(HPL~ paint applicators with 50 percent efficiency, and use of lower
volatility paint not to exceed 100 grams of ROG per liter.
38. During construction and grading activities, the developer's construction
contractor shall comply with the measures set forth in the Storm Water
Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a
minimum.
39. Prior to issuance of building permits and to the extent feasible, building plans
for the proposed project shall reflect the use of the following measures.
• Use low-polluting high energy-efficient appliances
• Install solar panels on roofs to supply electricity for heating and cooling
• Use double-paned windows to reduce thermal loss
• Install automatic lighting on/off controls and energy-efficient lighting
• Use light colored roofing materials in new construction to deflect heat
away from buildings.
40. During grading operations, special handling of on-site soils shall be
required due to the high moisture content of the soils, which is well above
optimum moisture conditions. The City of Santa Ana shall monitor the
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grading contractor to ensure stabilization of the soils during grading prior
to placing and compacting fill soils over wet sub-grade soils, as
recommended in the geotechnical investigation prepared by Geotechnical
Professionals, Inc.
41. Prior to issuance of building permits, the project developer shall ensure
that pile foundations are incorporated into the project design to mitigate
the potential settlement hazards beneath the proposed buildings. Pile
foundations shall be installed according to the recommendations provided
in the project geotechnical report.
42. Prior to issuance of building permits, the project developer shall ensure
that the subterranean portion of the structures is designed and installed to
resist hydrostatic pressure and be a water-proof barrier between the
existing soils and subterranean portions of the buildings. This design and
installation shall be consistent with the recommendations provided in the
project geotechnical report.
43. Prior to initiation of project grading, the project developer shall ensure that
all existing utilities will be relocated, abandoned and removed, rerouted, or
protected in coordination with the project developer and affected utility
companies.
44. Prior to issuance of a grading permit for project construction, the project
developer shall ensure that a Final Geotechnical Report on the project site
is prepared. All recommendations from this Final Geotechnical Report
shall be incorporated into the final grading plan for the project.
45. Prior to issuance of building permits, the project developer shall ensure
that all structures on the site are designed in accordance with the seismic
design provisions set forth in the Final Geotechnical Report and the
Uniform Building Code in order to promote safety in the event of a seismic
event.
46. Prior to issuance of grading permits, the project developer shall determine
and demonstrate to the City of Santa Ana that the foundation piles for the
project would not intrude into the Orange County groundwater basin. In
the event the foundations intrude into the groundwater basin, the project
developer shall obtain approval and/or permits from the Orange County
Water District and the Regional Water Quality Control Board. Any
measures required by these agencies will be incorporated into the final
design and construction specifications for the project.
47. Prior to issuance of grading permits, the project developer shall ensure
that provisions set forth in the Final Geotechnical Report regarding dust
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control measures during site preparation, grading and construction are
incorporated into the final construction specifications for the project.
48. Prior to issuance of Certificate of Occupancy permits, the project
developer shall submit to the City of Santa Ana CC&Rs for each
residential project. The CC&Rs shall outline the environmental
awareness, conditions and Best Management Practices regarding the
handling and storage of hazardous materials as identified in the Water
Quality Management Plan for MacArthur Place South.
49. Prior to issuance of grading permits, the project developer shall provide
proof to the City of Santa Ana of an NPDES permit from the RWQCB for
on-site dewatering activities.
50. The residential management companies shall ensure that post-
construction Best Management Practices (BMPs) are strictly adhered to
by all building occupants and tenants.
51. Prior to issuance of a demolition permit, the project developer shall
prepare an asbestos survey to determine the presence of asbestos
containing building materials. The survey shall be submitted to the City's
Environmental Coordinator for review. If asbestos is identified, proper
precautions shall be taken during demolition in compliance with California
environmental laws, regulations and policies.
52. Prior to issuance of a demolition permit, the project developer shall
prepare a lead paint survey to determine the presence of lead based
paint. The survey shall be submitted to the City's Environmental
Coordinator for review. If lead based paint or mercury is identified, proper
precautions shall be taken during demolition in compliance with California
environmental laws, regulations and policies.
53. Prior to occupancy of residential units, the project developer shall ensure
that CC&Rs for the community homeowners associations are recorded
specifying maintenance responsibilities for all BMPs identified in the Water
Quality Management Plan.
54. Prior to issuance of a grading permit for the project, the project developer
shall prepare and submit a Notice of Intent (NOI) to the State Water
Resources Control Board (SWRCB). The developer will also submit the
NOI and the project Water Discharge identification Number (WDIN)
provided by the SWRCB to the City of Santa Ana City Engineer.
55. During all site preparation, grading and construction, the project developer
shall ensure that the project contractor complies with all applicable
requirements of the NPDES permit, the Drainage Area Management Plan
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(DAMP), and the City's Local Implementation Plan (LIP). BMPs from the
DAMP and the LIP will be implemented by the project contractors, as
appropriate during site preparation, grading and construction.
56. Prior to issuance of a grading permit, the project developer shall prepare a
Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be
submitted and approved by the City Engineer prior to initiation of any
grading activity. The project shall maintain the SWPPP on the
construction site throughout the construction period.
57. During all site preparation, grading and construction, the project developer
shall ensure that its contractor implements the provisions of the SWPPP.
58. Prior to the issuance of grading permits, the project developer shall submit
a Final Water Quality Management Plan (WQMP) based on the Final
Grading Plan, to be approved by the City's Director of Public Works. The
WQMP shall be consistent with the DAMP and shall contain provisions
and BMPs for construction and operation conditions.
59. Prior to the issuance of building permits, the project developer shall pay
the City's drainage impact fee.
60. Prior to the issuance of grading permits, the project developer shall verify
that structural BMPs have been permanently incorporated into project
plans. Such BMPs shall ensure that pollutants from project-related storm
water runoff are mitigated consistently with applicable state and local
standards.
61. Prior to issuance of grading permits, the project developer shall submit a
final drainage plan to the City identifying the exact size and location of
drainage facilities.
62. Prior to issuance of grading permits, the project developer shall provide
proof of an NPDES permit from RWQCB to the City for onsite dewatering
activities.
63. Prior to issuance of building permits for tenant improvements for
restaurant uses, the project developer shall ensure that the proposed
restaurants are fitted with grease interceptors to the size and capacity as
designated by the City of Santa Ana Building Division.
64. Prior to issuance of building permits, building plans shall reflect the
construction of noise barriers to ensure an exterior noise level of 65 CNEL
or less around patios and balconies that are considered open space by
the City of Santa Ana. The barriers shall be constructed of materials that
provide a surface density of at least four pounds per square foot and shall
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be continuous (without gaps or gates). The height of the barriers shall be
sufficient to reduce the exterior noise level to a CNEL of 65 dB or less,
and shall be determined by a qualified acoustical consultant as part of the
final engineering design of the project.
65. Prior to issuance of building permits, building plans shall specify the STC
rating of windows and doors for all residential land uses. Window and
door ratings shall be sufficient to reduce the interior noise level to a CNEL
of 42 dB or less, and shall be determined by a qualified acoustical
consultant as part of the final engineering design of the project.
66. Prior to building occupancy, mechanical ventilation shall be installed at the
proposed condominiums and residential towers since the interior CNEL
standard of 42 dB is to be met with all windows and doors closed.
67. Prior to building occupancy, to the extent possible, all equipment shall be
enclosed within a building or separate structure. Where this is not
possible, barriers may be necessary to shield the equipment from the
existing and proposed residential buildings. Depending on the size and
style of the equipment, silencers in the intake and exhaust ducts may also
be necessary to reduce noise at the residential buildings to an acceptable
level.
68. Upon project completion, truck deliveries to the restaurant and the retail
building shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery
trucks shall not be permitted to idle in the parking lots or loading areas and
shall be required to have properly maintained, factory approved mufflers.
Delivery truck drivers shall be encouraged to minimize acceleration and
maintain reduced vehicle speeds while onsite.
69. Demolition and construction plans for the proposed project shall reflect the
following note: "During demolition and construction, the contractor shall
adhere to all City Noise Ordinance requirements to limit all construction
activity, including equipment start-up, to between the hours of 7:00 a.m.
and 8:00 p.m. Mondays through Saturdays. No construction shall take
place on Sundays or federal holidays.
70. During demolition and construction, the contractor shall site all
construction staging and storage areas away from sensitive receptors to
the furthest extent possible.
71. During construction activities, the project developer shall ensure that all
pile driving equipment shall be enclosed on all sides with an acoustical
blanket barrier that provides a minimum sound transmission class (STC)
rating of 30. The height of the blanket enclosure shall be at least 20-feet.
With the exception of points of access to the enclosure area, there shall
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be no openings or gaps in the enclosure, and all points of access are to
remain closed during pile driving activities. Notwithstanding Mitigation
Measure No. 67, pile driving shall not commence prior to 8:00 a.m. on
Saturday.
72. Prior to issuance of grading or demolition permits, the project developer
shall submit a construction equipment staging plan to the City of Santa
Ana for approval.
73. Prior to the start of construction activity, the project developer shall post
the name and telephone number of the construction relations officer on-
site.
74. Prior to any site preparation, grading or construction, the project contractor
shall provide to resident associations in the Sandpointe neighborhood, the
Main Attraction Condominiums and the Pinnacle Apartments a project
schedule indicating the type of construction activity and duration,
construction staging areas and the name and telephone number of the
construction relations officer.
75. Prior to issuance of occupancy permits, the project developer, at the
project developer's sole expense, shall conduct a noise monitoring
analysis to ensure that residential units achieve an interior noise level of
42 dB CNEL. The analysis shall be conducted by a qualified acoustical
consultant and shall be submitted to the City's Planning and Building
Agency for review.
76. Prior to issuance of a building permit, the project developer shall
coordinate any required relocation of fire hydrants on the property with
Santa Ana Fire Department. Final approval from the Fire Department is
required regarding location of hydrants on the project site.
77. Prior to issuance of a grading permit, the project developer shall submit
building plans to the Santa Ana Police Department in order to ensure
compliance with the City of Santa Ana's Building Security Ordinance. The
Police Department must approve the building plans with regard to the
Building Security Ordinance prior to initiation of grading.
78. Prior to issuance of a building permit, the project developer shall prepare a
Mandated Security Plan, which would need final Police department
approval. The plan is required to address issues such as onsite uniform
security staffing, restriction of hours of operation for the parking garages,
implementation of electronic security, mechanical surveillance, and
compliance with the basic principles of Crime Prevention Through
Environmental Design.
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79. Prior to issuance of a building permit, the project developer shall comply
with Senate Bill 50 and pay applicable school impact fees. Currently, the
Santa Ana Unified School District's adopted Fee Justification for
residential development is $2.14 per square foot and $0.33 per square
foot for commercial development.
80. Prior to issuance of a building permit, the project developer shall ensure
that the appropriate park Acquisition and Development Fee and parkland
dedication or in-lieu payments have been made.
81. Prior to issuance of building permits, the project developer shall submit a
Construction Phasing Plan to Santa Ana Fire Department. The plan must
be consistent with the Fire Department Fire Code requirements and must
show that emergency access to the construction site is adequate.
82. Prior to issuance of building permits, the project developer shall provide
evidence to the Santa Ana Fire Department that the proposed fire
protection and life saving systems incorporated in the project are
adequate.
83. Prior to issuance of building permits, the project developer shall submit the
final design of the project, including fire sprinklers system design to the
Santa Ana Fire Department for approval.
84. Prior to issuance of building permits, the project developer shall
coordinate with the Santa Ana Fire Department and the Santa Ana Police
Department regarding possible radio interference and installation of radio
repeaters on a tower rooftop.
85. Prior to issuance of building occupancy permits, the project developer in
cooperation with the City of Santa Ana, shall provide for the restriping of
the outside southbound through lane at the intersection of Main Street and
Sunflower to a shared through and right turn lane.
86. Prior to issuance of building occupancy permits, the project developer in
cooperation with the City of Santa Ana, shall provide for the restriping the
shared through right-turn lane at Hutton Centre Drive and MacArthur
Boulevard to provide an exclusive through lane and construct a second
northbound right turn lane for the northbound traffic.
87. Prior to issuance of building occupancy permits, the project developer
shall pay for the construction of a third eastbound through lane on
MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade
and the SR-55 northbound on-ramp.
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88. Prior to the issuance of building occupancy permits, the project developer
in cooperation with the City of Santa Ana, shall provide for the installation
of a traffic signal at Hutton Centre Drive and Hutton Centre Loop.
89. Prior to issuance of building occupancy permits, the project developer
shall pay for the construction of a fourth eastbound lane on MacArthur
Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-
55 southbound on-ramp.
90. Prior to issuance of building occupancy permits, the project developer
shall contribute $200,000 for the City of Santa Ana to prepare a
neighborhood traffic study to assess any intrusion of project traffic into the
Sandpointe Neighborhood. If traffic intrusion is attributable to the project,
corrective measures could include forced-turn channelization, semi-
diverters, diagonal diverters and cul-de-sacs.
91. Prior to issuance of building occupancy permits, the project developer
shall develop a parking plan in cooperation with the City of Santa Ana to
ensure that parking needs are met.
92. Prior to issuance of building occupancy permits the project developer shall
pay afair-share contribution for restriping a second eastbound right-turn
lane at the intersection of Main Street and Sunflower in order to achieve
LOS D for 2025.
93. Prior to issuance of grading permits, the project developer shall coordinate
with SCE to determine the exact location of all underground and overhead
electrical facilities. All electrical facilities and associated structures to be
left on the project site shall be protected from damage.
94. Prior to issuance of grading permits, the project developer shall ensure
that grading plans reflect the under grounding of utility lines serving the
proposed project.
95. Prior to issuance of grading permits, the project developer shall coordinate
with Southern California Gas to determine the exact location of all
underground natural gas facilities. All gas pipelines and associated
structures to be left on the project site must be protected from damage.
96. Prior to issuance of grading permits, the project developer shall coordinate
with Adelphia Communications to determine the exact location of all
underground cable facilities. The developer shall protect all existing cable
lines and associated structures to be left on the project site for damage.
97. Prior to issuance of grading permits, the project developer shall coordinate
with SBC Communications (formerly Pacific Bell) to determine the exact
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location of all underground telephone facilities. The developer shall
protect all existing telephone lines and associated structures to be left on
the project site from damage.
98. Prior to issuance of grading permits, the project developer shall
demonstrate to the City of Santa Ana that construction-related waste
generated on-site would be recycled wherever feasible as the first choice
of disposal method, leaving the option of landfill disposal as a last
alternative. The proposed commercial uses shall incorporate facilities for
collection and pick-up of recyclable materials into the design of the project.
99. Prior to issuance of grading permits, the project developer shall coordinate
with the Santa Ana Water Division to determine the exact location of all
existing underground water supply facilities and take action to prevent
damage to these facilities to be left on the project site or interfere with their
operation. The project developer shall pay their fair share amount for the
necessary facilities to accommodate project-related water supplies.
100. Prior to issuance of building permits, the existing eight-inch sewer line
along Hutton Centre Drive north of Sandpointe Avenue, shall be replaced
with a new 10-inch sewer line.
101. Prior to issuance of grading permits, the project developer shall coordinate
with Waste Management on the type and location of facilities needed to
provide solid waste disposal service to the project site.
102. Prior to issuance of grading permits, the project developer shall perform
soil testing to determine is soil to be excavated from the site will require
off-site disposal. If the soil is found to be contaminated, it will be properly
disposed of in compliance with California environmental laws, regulations
and policies.
B. Police Department
A security plan must be submitted to the Police Department at the plan
check stage for approval. The plan must cover all aspects of the projects
security including security personnel, surveillance equipment, and
hardware. The project will be required to have a minimum of four state
licensed uniformed security personnel. One security officer will be
required for each building, one for the podium level and one for the
parking garage.
2. A minimum 12-inch shatterproof convex mirror shall be installed at each
stair landing. All doors leading into stairwells shall be equipped with a
minimum 5-inch by 20-inch fire rated window. The last flight of stairs shall
be fully enclosed at its base.
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3. The City of Santa Ana parking structure design standards shall be
followed in its entirety. Duress alarms allowing voice communication with
security personnel shall be placed in strategic locations, approved by the
Police Department, throughout the parking garage.
4. All project walkways shall be illuminated to a minimum maintained one
footcandle of light.
5. All elevators serving the residential component of the project shall be
equipped with card readers at the garage levels to restrict unauthorized
access into the residential towers. The elevator lobbies shall be designed
and constructed of material that allows maximum visibility of the interior of
the lobby from the parking decks. Glazing material will be used to its
maximum extent.
Resolution No. 2009-
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KO- 4/28/09
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA DENYING THE
AMENDMENT TO CONDITIONAL USE PERMIT
NO. 2005-15 FOR THE PROPERTIES LOCATED
AT 100-130 EAST MACARTHUR BOULEVARD
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The applicant is requesting approval of an amendment to Conditional Use
permit No. 2005-15 to allow the rental of some or all units at the property
located at 100-130 East MacArthur Boulevard.
B. On March 23, 3009, the Planning Commission held a duly noticed public
hearing and by a vote of 4:3 (Gartner, Mill, Turner opposed) voted to
recommend that the City Council:
Deny application of Integral Communities, I, Inc. to amend
Development Agreement No. 2005-02.
2. Adopt a resolution denying the amendment to Conditional Use
Permit No. 2005-15.
C. On May 4, 2009, the City Council of the City of Santa Ana held a duly
noticed public hearing and at that time considered all testimony, written
and oral.
D. The application for the amendment to Conditional Use Permit No. 2005-10
has been filed with the City of Santa Ana seeking to allow the rental of
some or all units at the property located at 100-130 East MacArthur
Boulevard.
E. Santa Ana Municipal Code Section 41-638 and 41-649 authorizes the City
Council to grant a conditional use permit upon making certain findings.
The City Council determines that the findings necessary to grant a
conditional use permit have not been established:
1. Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or
community?
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The proposed Montage multi-family residential use at 100-130
East MacArthur Boulevard will not provide a facility that will
contribute to the general well being of the surrounding
community. The project developer has not established a
development track record in the City, which has resulted in
concerns with the potential quality of the Montage project.
Since the project has yet to be constructed, it is likely that the
project will not be a high-quality residential housing
development, thereby affecting the property values of the
surrounding neighborhoods and adversely impacting the
general well being of the community.
2. Will the proposed use under the circumstances of the particular case
be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity?
The proposed multi-family residential use will be detrimental
to the general welfare of persons residing and working in the
area. Concerns with the potential quality of the Montage
project and the lack of strong property management of a rental
project will result in a lesser quality project that will adversely
impact the welfare of the adjacent Sandpointe Neighborhood.
3. Will the proposed use adversely affect the present economic stability
or future economic development of properties surrounding the area?
The proposed project will adversely affect the economic
stability within the MacArthur Place South development area
and the adjacent Sandpointe Neighborhood. Due to a
reduction in quality associated with the construction of a rental
project and potential issues with the future management of the
rental project, the Montage development will negatively impact
the present economic stability of the area.
4. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The proposed use would be in violation of the express terms
of the Development Agreement adopted, pursuant to Chapter
41 and State law, for the project. The Development
Agreement, which was signed by Integral's predecessor in
interest and recorded against the property at the time Integral
acquired it, does not permit apartments, but instead requires
for-sale condominiums to be built on the property.
5. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed project will adversely affect several goals
identified in the General Plan of the City. Goal 1 of the
General Plan encourages a balance of land uses to address
Resolution No. 2009-
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75A-161
basic community needs and Goal 3 promotes the
preservation and integrity of existing neighborhoods. The
construction of a rental project will not be consistent with
these goals as several apartment projects are located in the
immediate area, with for-sale housing needed to provide a
balance of land uses. Further, the pride of ownership
associated with for-sale housing results in better quality
projects that improve the character of adjacent
neighborhoods.
Section 2. The City Council of the City of Santa Ana after conducting the public
hearing hereby:
1. Denies the application of Integral Communities, I, Inc. to amend Development
Agreement No. 2005-02; and
2. Denies the amendment to Conditional Use Permit No. 2005-15 as for the
property located at 100-130 East MacArthur Boulevard.
These decisions are based upon the evidence submitted at the abovesaid
hearing, which includes but is not limited to: the Request for Council Action dated May
4, 2009 and exhibits attached thereto; and the public testimony written and oral, all of
which are incorporated herein by this reference.
Section 3. This decision rendered by the City Council of the City of Santa Ana
is final and is subject to judicial review pursuant to California Code of Civil Procedure
section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the
Council's decision and these findings.
ADOPTED this day of May, 2009
Miguel A. Pulido
Mayor
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APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Kylee O. Otto
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Resolution No. 2009-XXX to be the original resolution adopted by the City
Council of the City of Santa Ana on
Date:
Clerk of the Council
City of Santa Ana
Resolution No. 2009-
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