HomeMy WebLinkAboutLYON HOUSING (FIRST STREET) XLVIII, LLC. A DELAWARE LIMITED LIABILITY COMPANYA -2013 -195
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P,O. Box 1988
Santa Ana, California 92702 FREE RECORDING
GOVERNMENT CODE 4 6103
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
LYON HOUSING {FIRST STREET} RLVIII, LLC
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City of Santa Ana 48 414 Al2 F13 34
20 Civic Center Plaza M40 0.00 0.00 0.00 0.00 88.00 0,00 0.00 0.00
P, 0, Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE § 6103
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
sa
THE CITY OF SANTA ANA
mm,
LYON HOUSING (FIRST STREET) XLVIII, LLC
Dated: - f 6 , 2015
067e 10vsa.iasaa ,vs
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
LYON HOUSING (FIRST STREET) XLVIII, LLC,
a Delaware limited liability company
This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT is entered
into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly
authorized under the Constitution and laws of the State of California ( "City ") and LYON
HOUSING (FIRST STREET) XLVIII, LLC, a Delaware limited liability company
( "Owner "), The City and Owner are referred to jointly within this First Amended and
Restated Development Agreement as the "Parties" and individually as a "Party.°
1, RECITALS, The First Amended and Restated Development Agreement is
entered into with reference to the following facts:
1.1 The Property, The real property which is the subject of this First
Amended and Restated Development Agreement is located at 1901 E. 1st
Street In Santa Ana, California (the "Property "), The Property is more
particularly described in Exhibits A and B to this First Amended and
Restated Development Agreement,
The Property is a 5,1 acre parcel within the Metro East Mixed Use Overlay
Zone that is located at the northeast comer of First Street and Cabrillo
Park Drive. The Property is bounded by multi- tenant office buildings, a
parking structure, and Kaiser Permanents medical offices to the north,
low -rise office buildings and retail development to the East, First Street to
the South, and Cabrillo Park Drive and a 15 -story Xerox Centre office
building to the West,
The Property was previously occupied by a twc -story, 75,300 square foot
building (the "Main Building ") and an existing parking structure with
approximately 660 parking spaces (the "Existing Parking Structure "), The
Main Building has been demolished, but the Existing Parking Structure
remains on the Property.
12 The Original Agreement,
(a) On April 2, 2007, the City Council of the City of Santa Ana (the "City
Council') adopted Ordinance No, NS -2741 approving a
Development Agreement between the City and 1901 E, 1st Street
Partners, LLC (the "Original Agreement "). Ordinance No. NS -2741
became effective on May 2, 2007, which became the effective date
of the Original Agreement,
067619184436320
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06761915448672x5
(b) Before approving the Original Agreement, the City Council certified
Environmental Review No. 2006 -01 for the Original Agreement and
the development proposal which was the subject of the Original
Agreement (the "Original EIR").
(c) Both this First Amended and Restated Development Agreement
and the Original Agreement pertain to the Property.
(d) 1901 E. 1st Street Partners, LLC, a Delaware limited liability
company, was the owner of the Property at the time of the Original
Agreement (the "Original Owner ").
(e) On September 30, 2012, Owner acquired the Property from 1901
Santa Ana Land, LLC, a Delaware limited liability company and a
successor of the Original Owner.
(f) By entering into this First Amended and Restated Development
Agreement, the City Council approves the assignment of the rights
and delegation of the obligations under the Original Agreement to
Owner.
Purpose of this First Amended and Restated Development
Agreement.
(a) The purpose of this First Amended and Restated Development
Agreement is to facilitate the development of the Property. This
First Amended and Restated Development Agreement is not a new
development agreement, but rather an amendment and
restatement of the terms of the Original Agreement. The purpose of
this First Amended and Restated Development Agreement Is to (1)
reflect a revised development plan for the Property and (2) extend
the term set forth in the Original Agreement.
(b) Owner proposes to develop on the Property a new 264 -unit
multifamily residential development (the "Project'). The Project will
consist of a new 5 -story low -rise Type III -A building containing 250
units to be constructed against the west side of the Existing Parking
Structure and a new 3 -story Type V -A townhouse building wrapping
the south and east sides of the garage containing 14 townhouse
units, A 5,000 GSF clubhouse and recreation deck wlth pool will be
added over the southern half of the Existing Parking Structure, The
project will also include approximately 2,424 SF of retail space on
the corner of First Street and Cabrillo Park Drive.
1,4 Code Authorization, 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 development certainty for both the City and Owner
in the development process, City enters into this First Amended and
Restated Development Agreement pursuant to the provisions of the
Government Code and applicable City policies, The Parties acknowledge;
(a) This First Amended and Restated Development Agreement is
intended to assure adequate public facilities at the time of
development,
(b) This First Amended and Restated Development Agreement is
intended to assure development In accordance with City's General
Plan, applicable Specific Plans and the Metro East Mixed -Use
Overlay Zone.
(c) This First Amended and Restated Development Agreement will
permit achievement of goals and objectives as reflected in the
City's General Plan, all applicable Specific Plans and the Metro
East Mixed -Use Overlay Zone,
(d) Owner is required by existing City regulations to provide mitigation
for certain Identified impacts and pay certain regulatory fees as
conditions of approvals through the regulatory process.
(e) This First Amended and Restated Development Agreement will
allow City to realize extraordinary and significant public
infrastructure facilities and other supplemental benefits in addition
to those available through the existing regulatory process.
(f) Many of the extraordinary and significant benefits identified as
consideration to City for entering into this First Amended and
Restated Development Agreement are of regional significance,
relate to existing deficiencies in public facilities, require Owner to
contribute a greater percentage of benefits than would otherwise be
required, and represent benefits which would not otherwise be
required as part of the development process,
1.5 Owner. Owner represents and warrants that it has a legal or equitable
interest in the Property.
069619 \5448872v9 3
1.6 Interest of Owner, Owner represents that it has approved this First
Amended and Restated Development Agreement and is authorized to
enter into this First Amended and Restated Development Agreement.
1.7 Public Hearings, The Original Agreement was the subject of a series of
Planning Commission and City Council public hearings in 2007. In
addition, this First Amended and Restated Development Agreement was
the subject of the following public hearings:
(a) Planning Commission, On August 26, 2013, the 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 First Amended and Restated
Development Agreement and the environmental documentation
evaluating the potential impacts of the First Amended and Restated
Development Agreement.
(b) City Council. On September 16, 2013, and continued to October
21, 2013, the City Council, after providing notice as required by law,
held a public hearing to consider Owner's application for this First
Amended and Restated Development Agreement
(c) Environmental Analysis. Before approving this First Amended
and Restated Development Agreement, the Planning Commission
and the City Council reviewed an Addendum to previously prepared
Environmental Review No. 2006 -01 and the City Council approved
the Addendum (the "Addendum "),
1.8 City Council Findings, The City Council finds that this First Amended
and Restated Development Agreement is consistent with the General
Plan, applicable specific plan(s), applicable zoning regulations, and all
other applicable ordinances, plans, policies and regulations of the City.
1.9 City Ordinance, On N vember 18. 2013, the City Council adopted
Ordinance No. NS -280 approving this First Amended and Restated
Development Agreement. That ordinance becomes effective thirty (30)
days after the date of adoption,
2. DEFINITIONS, In this First Amended and Restated Development Agreement,
unless the context otherwise requires:
2.1 "Amendment Date" means December 19, 2013 the date on which the
Adopting Ordinance became effective.
067619 \3448632v5 A
2.2 "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 Santa Ana Municipal Code ( "$AMC'% the Metro East Mixed.
Use Overlay Zone, this First Amended and Restated Development
Agreement and the Entitlements, as defined below.
2.3 "Effective Date" means May 2, 2007, the date upon which the ordinance
approving the Original Agreement became effective.
2.4 "Entitlements" means this First Amended and Restated Development
Agreement modifying Development Agreement No, 2007 -01,
Environmental Review No. 2006 -01, the Addendum, General Plan
Amendment No, 2007 -01, Vesting Tentative Tract Map No, 2013 -4,
Zoning Ordinance Amendment No. 2007 -01, the Metro East Overlay Zone
Public Realm Improvement Plan, Site Plan Review Approval No. 2013.3,
and any changes to these to which Owner has consented in writing.
2.5 "in Lieu Park Development Fee" means the fee to be paid by Owner to
fully satisfy all park - related obligations of the Project as provided in
Section 5.10 below.
2.6 "Owner" means Lyon Housing (First Street) XLVIIi, LLC, a Delaware
limited liability company.
23 "Original Agreement" means the Development Agreement between the
City and 1901 E. 1st Street Partners, LLC approved by the City Council on
April 2, 2007, by Ordinance No, NS -2741.
2.8 "Original Hearing Date" means the date on which the City Council
conducted the first reading of Ordinance No, NS -2741 approving the
Original Agreement.
2.9 "Project" is the development on the Property of a 264 -unit multiple family
residential development and approximately 2,424 square feet of retail
space as generally set forth in the Entitlements.
2.10 "property" means the real property described in Exhibit A and referred to
in Exhibit B.
2,11 "Public Art" is defined in Section 5.1.7.
2.12 "Public Art Fee" is defined in Section 51.7
2.13 "Public Art Plan" is set forth in Exhibit C to this First Amended and
Restated Development Agreement,
067619\54488320 S
2.14 "Reserved Powers" means the rights and authority excepted from this
First Amended and Restated Development 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 andlor 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; or (d) relate to increases in
development impact fees occurring after the Effective Date.
2.15 "Uniform Codes" means those building, electrical, mechanical, fire and
other similar regulations 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 local modification to implement the published
recommendations of the multi -state organization and which are applicable
City -wide)
2.16 "Utility Release" 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.
3. EXHIBITS. The following documents referred to In this First Amended and
Restated Development Agreement are attached to this First Amended and
Restated Development Agreement and are identified as follows:
Exhibit
Designation
Description
Referred to .
in Section
A
Property Legal Description
1,1, 2.10
B
Property Graphical Description
1,1
C _
Public Art Plan
2,13,15.11.7
067619 \54488920
D_ _ Offsite Improvements 51.8
4. GENERAL PROVISIONS,
4.1 Term of First Amended and Restated Development Agreement (the
`Term "). The ten -year term of the Original Agreement started on the
Effective Date of May 2, 2007, and would have ended on May 2, 2017,
This First Amended and Restated Development Agreement shall extend
the end of the Term to ten years after the effective date of the ordinance
approving this First Amended and Restated Development Agreement.
4.2 Assignment. Owner shall have the right to transfer or assign the
Property, in whole or in part, to any person, entity (public or private),
partnership, joint venture, firm or corporation at any time during the term of
this First Amended and Restated Development Agreement; provided,
however, the rights of Owner under this First Amended and Restated
Development Agreement may not be transferred or assigned unless the
written consent of the Council is first obtained and any transfer or
assignment of the rights under this First Amended and Restated
Development Agreement shall Include in writing the assumption of the
duties, obligations, and liabilities arising from this First Amended and
Restated Development Agreement if the City grants written consent to
transfer the rights. Nor shall the rights of the Owner hereunder be subject
to assignment by attachment, execution, or proceedings under any
provision of the Bankruptcy Act, and any such assignment or transfer of
the rights under this First Amended and Restated Development
Agreement shall be wholly void and of no force and effect unless such
written consent thereto be obtained from the Council, A transfer or
assignment of the rights under this First Amended and Restated
Development Agreement without the consent of the City shall not relieve
Owner of any accrued duty, obligation or liability to City. No consent shall
be required for sale of units to condominium unit buyers,
During the term of this First Amended and Restated Development
Agreement, any approved assignee or transferee of the rights under this
First Amended and Restated Development Agreement shall observe and
perform all of the duties and obligations of Owner contained In this First
Amended and Restated Development 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 First Amended and Restated Development Agreement. If the
Property Is subdivided, any subdivided parcel may be sold,
067619 \5448832v5
mortgaged, hypothecated, assigned, or transferred to persons for
development by them in accordance with the provisions of this First
Amended and Restated Development Agreement. Upon assignment or
transfer of the rights of Owner under this First Amended and Restated
Development Agreement, the obligations of Owner and the transferee or
assignee shall be joint and several. Should the Project be developed as or
later converted to condominiums, individual condominium unit buyers shall
not have any liability or obligation pursuant to this First Amended and
Restated Development Agreement.
4.3 Amendment or Cancellation of First Amended and Restated
Development Agreement, This First Amended and Restated
Development Agreement may be amended from time to time or cancelled
by the mutual consent of the Parties, but only in the manner required by
Government Code Section 65868. As used within this First Amended and
Restated Development Agreement, the terms "Agreement" and "Original
Agreement" shall include any amendment properly approved executed,
4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this
First Amended and Restated Development Agreement is enforceable by
either Party in any manner provided by law. The remedies provided in
Section 7.4 shall not include, and City shall not be liable for, any action in
damages or any costs or attorney's fees resulting from any dispute,
controversy, action or inaction, or any legal proceeding arising out of this
First Amended and Restated Development Agreement.
4.5 Indemnification by Owner, Owner agrees to and shall indemnify, defend
(through its own counsel) and hold City, its officers, agents, employees,
consultants, and representatives harmless from liability for damages,
attorneys' fees, 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. Owner further agrees to indemnify, defend (through its own
counsel) and hold City, its officers, agents, employees, consultants, and
representatives harmless from any Litigation, as hereinafter defined, For
purposes of this paragraph, "Litigation" shall mean any lawsuit, action or
cross - action, challenging the validity of this transaction, the Project as
defined in Section 2,9, or any portion 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 First Amended and Restated
Development Agreement. Notwithstanding any other provision of this First
067619\544$83 2v5
Amended and Restated Development Agreement, this indemnity and duty
to defend shall be limited as follows:
(a) Owner shall have no responsibility to defend the City under this
section for any aspect of Litigation challenging Amendment
Application 2007 -01, General Plan Amendment No. 2007 -01, and /or
Zoning Ordinance Amendment No. 2007 -01 (the "Overlay ").
(b) In the event the Litigation results in a judgment and /or award of
damages and /or attorneys' fees related to the Overlay but in no
way related to the application of the Overlay to the Property, Owner
shall have no responsibility to indemnify the City therefor,
(c) In the event of any Litigation the parties agree to affirmatively
cooperate in defending said action,
(d) Owner shall have approval of any settlement if, (i) it will affect
Owner's project, or (ii) Owner will be required to pay (or reimburse)
any amounts (regardless of type) in connection with the settlement
(including attorneys' fees and costs).
(1) If City determines to settle over Owner's objections, then
Owner may upon thirty (30) days written notice terminate
defense of the action.
(ii) If City rejects a settlement offer that Owner deems reasonable,
then Owner may upon thirty (30) days written notice terminate
defense of the action,
(e) Owner shall be allowed to terminate its defense if it determines to
abandon defense of its project application; provided, however, that
in such circumstance Owner shall be solely liable for award, if any,
of costs or attorneys' fees to plaintiff /petitioner incurred prior to the
effective date of termination.
4,6 Binding Effect of First Amended and Restated Development
Agreement. To the extent not otherwise provided in Section 4.2 of this
First Amended and Restated Development Agreement, the burdens of this
First Amended and Restated Development Agreement bind, and the
benefits of the First Amended and Restated Development Agreement
inure, to the parties successors in interest.
4.7 Relationship of the Parties. The contractual relationship between City
and Owner arising out of this First Amended and Restated Development
Agreement is one of independent contractor and not agency. This First
067619�5448832v5 9
Amended and Restated Development Agreement does not create any
third party beneficiary rights.
4.8 Notices, Any notice, tender, demand, delivery, or other communication
pursuant to this First Amended and Restated Development 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.Q. Box 1988
Santa Ana, California 92702
RM
City Attorney, City of Santa Ana
20 Civic Center Plaza M -29
P.Q. Box 1988
Santa Ana, California 92702
If to Owner, to:
Lyon Housing (First Street) XLVIII. LLC
4901 Birch Street
Newport Beach, CA 92660
Attention: General Counsel
and
Tim Paone
Cox Castle & Nicholson LLP
19800 MacArthur Boulevard
Irvine, CA 92612 -2480
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
067619 \5448832vS 10
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 telefacsimile machine, addressed as set forth above. For
purposes of calculating these time frames, weekends, federal, state,
County, or city holidays shall be excluded,
S. DEVELOPMENT OF THE PROPERTY,
51 City Obligations. In consideration for Owner entering into this First
Amended and Restated Development Agreement and performing its
obligations hereunder and in order to effectuate the purposes and
intentions set forth in this First Amended and Restated Development
Agreement and the Development Agreement Act, the City hereby agrees
during the Term as follows:
5.1.1 Vested Right 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.
5.1.2 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 First
Amended and Restated Development 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 First Amended and
Restated Development Agreement. In the event that state or
federal laws or regulations enacted after this First Amended and
Restated Development Agreement has been entered into, prevent
or preclude compliance with one or more provisions of this First
Amended and Restated Development Agreement, such provisions
of this First Amended and Restated Development Agreement shall
be modified or suspended as may be necessary to comply with
such state or federal laws or regulations,
0076 9154468320 11
5.1,3 Agreed Changes and Other Reserved (sowers. This First
Amended and Restated Development 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, or (b) result from the Reserved
Powers,
5.1.4 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 agrees that it shall condition any Subsequent Development
Approvals based only on the Applicable Rules and /or Reserved
Powers.
5.1.6 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 First Amended and Restated
Development Agreement, unless such changes are adopted
pursuant to the City's exercise of its Reserved Powers or other
applicable provision of this First Amended and Restated
Development Agreement.
5.1.6 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 and subject to Section 5.11, 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.
0676M54488520 12
5.11 Development, Construction, and Completion of Public Art.
Owner shall include within the Project single or grouped permanent
work of public art consistent with the Public Art Plan (collectively,
"Public Art ") at a cost of not less than One Hundred Twenty Five
Thousand Dollars ($125,000) (the "Public Art Fee "),
5.1.8 Additional Offsite Mitigation Measures. The offsite mitigation
measures (i,e., which clarify mitigation measures set forth in the
Project entitlements) which must be constructed by Owner are as
set forth in Exhibit D to this First Amended and Restated
Development Agreement. All funds or costs for offsite mitigation
measures required pursuant to the approvals set forth in section 2.4
of this First Amended and Restated Development Agreement shall
be paid or security provided therefor in conformance with the
provisions of the Subdivision Map Act, no later than recordation of
the final subdivision map for the Project, or issuance of the first
building permit for the Project, whichever comes first.
5.1.9 Irrevocable Offer to Dedicate Easements or Land To Implement
Public Realm Improvement Plan. On the face of the final map for
the Project, or contemporaneous with offering the final map for filing
with the County if it is not placed on the final map, Owner shall
execute an irrevocable offer to dedicate to the City such property
interest (easement for the breezeway /lane along the north side and
fee title along the south side of the Project) as is necessary to
effectuate the Metro East Public Realm Improvement Plan adopted
contemporaneously with the Project. Owner shall not be required to
dedicate additional land pursuant to any amendments to said Plan
which may occur following its adoption. Owner shall be entitled to
an offset against its obligations under Section 5,7 of this First
Amended and Restated Development Agreement for such property.
5.2 Exclusion from Existing Rules, Regulations and Policies.
(a) Pursuant to Government Code Section 65866 and Pardee
Construction Co. v. City of Camarillo (1984) 37 Cal,3d 465, 208
Cal.Rptr, 228, 690 P.2d 701, City retains the right to enact police
power regulations on matters not covered by Section 5.1 of this
First Amended and Restated Development Agreement, including
without limitation:
(i) Municipal laws and regulations which do not interfere with
Owner's vested rights to develop and use the Property in
accordance with Section 5.1 of this First Amended and
06761915448832v5 13
Restated Development Agreement. Owner and its successors
and assigns and all persons and entities in occupation of any
portion of the Property shall comply with such non - conflicting
laws and regulations as may from time to time be enacted or
amended hereafter, Specifically, but without limitation on the
foregoing, such non - conflicting laws and regulations include the
following;
Taxes, assessments, fees and charges, except as otherwise
specifically provided in this First Amended and Restated
Development Agreement;
Building, electrical, mechanical, fire and similar codes based
upon uniform codes incorporated by reference into the Santa
Ana Municipal Cade;
Laws, including zoning code provisions, which regulate the
manner in which business activities may be conducted or
which prohibit any particular type of business activity on a
city -wide basis; and
• Procedural rules of general City -wide application.
5.3 Construction standards and Specifications. The construction
standards (e.g., the Uniform Codes) and specifications for all Project
construction shall be subject to applicable construction standards and
guidelines in effect at the time that any development approval shall be
sought for the Project or any unit or structure contained within the Project.
5A FAA Approval. Owner shall obtain and maintain, during the term of this
First Amended and Restated Development 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 the first building permit, the City shall have the right to
terminate this First Amended and Restated Development
Agreement.
5.5 Processing Fees. All fees and charges intended to cover City costs
associated with processing development of the Property, including but not
limited to fees and charges for applications, processing, inspections, plan
review, plan processing, and /or environmental review, which are existing
or may be revised or adopted during the term of this First Amended and
Restated Development Agreement, shall apply to the development of the
Property,
967619 \5448832x5 14
ffi.6 Amendments or Additions to Citywide Fee Programs, This First
Amended and Restated Development Agreement shall not preclude the
inclusion of and changes to fee programs, taxes whether special or
general, or assessments (hereafter collectively referred to as "fees ")
adopted by the City after the effective date of this First Amended and
Restated Development Agreement, which shall be applicable to the
Project or the Property provided that they (1) are standard fees applicable
to all development in the City (although actual fee rates may vary within
the City where bona fide Citywide fee zones have been established), (2)
are not applicable primarily or only to this Project, or (3) are not imposed
to either (a) mitigate, offset or compensate for Project Impacts which were
analyzed in the environmental impact report prepared for the Project, or
(b) duplicate any project design features conditions of approval,
agreements, or mitigation measures contained in this First Amended and
Restated Development Agreement
5,7 Community Facilities District or Other Financing Tool, Owner agrees
to petition for, and fully support (including voting to establish, if required),
the establishment of or annexation into a Community Facilities District or
similar financing mechanism covering the Property, in order to fund the
proposed project's fair share of eligible items, e.g., the costs of
implementing the Metro East Public Realm Improvement Plan; provided,
however that the total effective tax rate (including but not limited to regular
property or ad valorem taxes, special taxes, benefit assessment or other
Imposition) shall not exceed an annual levy of one and six - tenths percent
(1.6 %) of the Property's valuation, as improved. Owner and City shall
cooperate in good faith to designate those improvement and /or fees to be
funded by the Community Facilities District or other mechanism. Owner
shall have the right to review and approve any final list of said facilities
and /or fees; provided, however that Owner's approval may not be
unreasonably withheld,
5,8 Phasing of Project. The parties agree and acknowledge that the Project
may be built in up to two (2) phases (with one tower in each phase), but
that, except as otherwise expressly stated herein, all conditions and
mitigation measures shall be Implemented as part of the initial phase;
provided, however that Owner may propose to delay to the second phase
on -site conditions (e.g., sidewalks) that could be damaged by future
construction. Prior to issuance of the first building permit for the Project,
Owner shall submit a proposed Phasing Plan to the City, for review and
approval by the City's Planning Commission. The proposed Phasing Plan
shall contain those items Owner deems necessary, but shall include the
timing for first and second phase construction and interim site
improvements (i.e., landscaping, internal circulation) between the phases,
067619 \5448932v4 15
The approved Phasing Plan must be implemented within six (6) months
after completion of the first phase (i.e„ Issuance of first Utility Release),
5,9 Inclusionary Housing Owner shall produce and Incorporate a total of
ten (10) low- Income affordable units, including five (5) one - bedroom units
and five (5) two - bedroom units, within the Project pursuant to the terms
and regulations of Article XVIII.I of Chapter 41 of the Santa Ana Municipal
Code,
5,110 In-Lieu Park Development Fee. The Owner shall pay an in -lieu park
development fee in the amount of One Million Four Hundred Fifty
Thousand Dollars ($1,450,000) with respect to the Project ( "In -Lieu Park
Development Fee ") payable pro rata, which pro rata fraction shall be
determined based on a fraction the numerator of which is the total number
of residential units in a phase and the denominator of which is the total
number of residential units in the Project. The pro rata In -Lieu Park
Development Fee shall be paid prior to issuance of the building permit for
each phase. The City shall use said fees for new parkland, capital
improvements at existing parks, and deferred maintenance at existing
parks (up to a maximum of fifty percent of amount of the fee). If not used
or appropriated this fee shall be returned to Developer, consistent with the
provisions of (and subject to the exceptions contained within) the
California Mitigation Fee Act, Government Code § 66000 et sec, Owner
may propose In future an alternative in-lieu of the provisions of this section
which fully satisfies this requirement, and if such proposal is consistent
with City's park plans and standards, the City shall consider such proposal
in good faith; provided, however, that if approved such proposal shall be
the subject of an amendment to this First Amended and Restated
Development Agreement entered into pursuant to Government Code
section 65868.
5.11 Covenants, Conditions, and Restrictions. Owner may, at its sole
option, decide in the future to sell individual residential units as
condominiums. Prior to the issuance of the first building permit for the
Project, Owner shall provide to the City the proposed Covenants,
Conditions, and Restrictions ( "CC &R's ") to be recorded against the
Property for the condominiums. Those CC &R's must be approved by the
Planning and Building Agency's Executive Director (or the person acting in
the equivalent role if the title of the position is changed. The City's review
and approval of the CC &R's shall be limited to determining inclusion of the
following restrictions within the CC &R's:
96761 �)\54A&S720 16
(a) No more than four residents shall be permitted for each unit, except
that for three - bedroom units, there shall be no more than five
residents per unit.
(b) All initial sales of residential units by Owner shall include a
covenant that the buyer may not re -sell the unit for a period on one
(1) year,
(c) No home occupation shall be permitted in a unit, except in
accordance with Section 41.152 et seq, of the Santa Ana Municipal
Code.
(d) Allocation of responsibility for repair of perimeter walls and common
areas, including landscaping, will be specified in the CC &R's in the
event of damage,
(e) Notice of the urban character of the City and this area, including but
not limited to (i) the permitted uses of the property and buildings in
the immediate area of the development (e.g,, Xerox Towers, State
Compensation Insurance Fund, 1 -6 and SR -55 freeways).
(f) The release of the City from all claims which may arise from or
relate to the urban character of the City and this area.
(g) A term of the CC &R's of an initial period of ninety- nine years, with
automatic and repeating one- hundred (100) year extensions,
unless terminated earlier by the joint consent of (I) the City and (1)
not less than seventy five percent of those condominium owners
entitled to vote under the CC &R's.
(h) The need for the approval of the City to any proposed modifications
to the provisions of the CC &R's identified in this Section 6.11.
(1) The imposition of a significant financial penalty by the Home
Owner's Association upon any member who violates the provisions
of the CC &R's identified in this Section 5, 11.
5.12 Conditions of Discretionary Approvals, The requirements imposed as
conditions of any discretionary approval received through the City's
existing regulatory process shall be governed by the terms of those
approvals, and in no event shall such conditions be affected by the
termination, cancellation, rescission, revocation, or default or expiration
of this First Amended and Restated Development Agreement (although
such conditions must comply with the Applicable Rules),
06709 \54488320 17
5.13 Compliance with Governmental Requirements. Owner shall carry out
the design, construction, and operation of the Project in substantial
conformity with all applicable laws, ordinances, statutes, codes, rules,
regulations, orders, and decrees of the United States, the State of
California, the County of Orange, the City, or any other political
subdivision in which the Property is located, and of any other political
subdivision, agency, or instrumentality exercising jurisdiction over the City,
Owner or the Property, Including all applicable federal, state, and local
occupation, safety and health laws, rules, regulations and standards,
applicable state and labor standards, applicable prevailing wage
requirements, the City zoning and development standards, City permits
and approvals, building, plumbing, mechanical and electrical codes, as
they apply to the Property and the Project, and all other provisions of the
City and its Municipal Code (as they apply to the Property and the
Project), and all applicable disabled and handicapped access
requirements, including, without 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. (collectively, "Governmental
Requirements ").
6. ANNUAL REVIEW.
6.1 City and Owner Responsibilities, City shall, at least every twelve (12)
months during the term of this First Amended and Restated Development
Agreement, review the extent of good faith substantial compliance by
Owner with the terms of this First Amended and Restated Development
Agreement. Pursuant to Government Code Section 65865.1, as amended,
Owner shall have the duty to demonstrate by substantial evidence its good
faith compliance with the terms of this First Amended and Restated
Development Agreement at the periodic review.
6.2 Review Letter. If Owner is found to be in complianoe with this First
Amended and Restated Development 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, this First Amended and Restated Development 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 to Conduct Annual Review, City's failure to review at least
annually Owner's compliance with the terms and conditions of this First
Amended and Restated Development Agreement shall not constitute or be
067619\5448932r5 18
asserted by any Party as a breach of this First Amended and Restated
Development Agreement by Owner or City.
7. DEFAULT,
7A Events of Default. Owner is in default under this First Amended and
Restated Development Agreement upon the happening of one or more of
the following events or conditions:
(a) If a warranty, representation, or statement made or furnished by
Owner to the City is false or proves to have been false in any
material respect when it was made;
(b) A finding and determination made by the City Council following a
periodic review under the procedure provided for in Government
Code Section 65865,1 that upon the basis of substantial evidence
the Owner has not complied in good faith with one or more of the
terms or conditions of this First Amended and Restated
Development Agreement;
(c) Failure to comply with Governmental Requirements;
(d) Any other event, condition, act, or omission which materially
interferes with the intent and objectives of this First Amended and
Restated Development Agreement.
7.2 Procedure upon Default. The following principles and procedures shall
be applied in the determination of any Default:
(a) Upon the occurrence of default, City shall give Owner (the
"defaulting party ") thirty (30) days written notice specifying the
nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured, After proper notice
and expiration of said thirty (30) day cure period without cure, City
may terminate or amend this First Amended and Restated
Development Agreement in accordance with the procedure adopted
by the City as to all defaults that may be cured within said thirty (30)
day cure period. For defaults that cannot be cured within said thirty
(30) day cure period, City may terminate or amend this First
Amended and Restated Development Agreement in accordance
with the procedure adopted by the City should at any time Owner
fall to diligently proceed in curing the default. Failure or delay in
giving notice of default shall not constitute a waiver of any default,
nor shall it change the time of default.
067614 \5448332v5 19
(b) 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 First Amended and Restated Development Agreement,
(c) Non- performance shall not be excused because of failure of a third
person.
(d) An express repudiation, refusal, or renunciation of the contract, if
the same is in writing and signed by the Owner, shall be sufficient
to terminate this First Amended and Restated Development
Agreement and a hearing on the matter shall not be required.
(e) Adoption of a law or other governmental activity making
performance by the Owner unprofitable or more difficult or more
expensive does not excuse the performance of the obligation by the
Owner.
(f) All other remedies at law or in equity which are not inconsistent with
the provisions of this First Amended and Restated Development
Agreement are available to the parties to pursue in the event there
Is a breach.
7,3 Damages upon Termination. In no event shall Owner be entitled to any
damages against City upon termination of this First Amended and
Restated Development Agreement,
7.4 Institution of legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct, or remedy any
default or breach, to specifically enforce any covenants or agreements set
forth in this First Amended and Restated Development Agreement, or to
enjoin any threatened or attempted violation of this First Amended and
Restated Development Agreement; or to obtain any remedies consistent
with the purpose of this First Amended and Restated Development
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,
MORTGAGEE PROTECTIONS
8.1 Right to OwnerlNotice /Multiple Mortgagees. Owner shall have the
absolute right to encumber Owner's right, title and interest in, to and
under this First Amended and Restated Development 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
067619 \544a8320 20
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 First Amended and Restated
Development 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 First Amended and
Restated Development 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 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 First Amended and Restated
Development 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
Owner default which requires title and /or possession of the Property (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 this First Amended and Restated
Development Agreement. Unless a Mortgagee expressly assumes
Owner's Obligations to the City in accordance with Section 8,2, no
Mortgagee shall in any way be obligated by the provisions of this First
0676 1 915 4 48B3W 21
Amended and Restated Development Agreement, nor shall any covenant
or any other provision in this First Amended and Restated Development
Agreement be construed to obligate such Mortgagee. Nothing In this First
Amended and Restated Development 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 on the Mortgagee
Parcel, other than those uses or improvements provided for or authorized
by this First Amended and Restated Development Agreement.
8.4 No Liability. No Mortgagee shall have any liability beyond its interest in
the Mortgage Parcel acquired through enforcement of its Mortgage for the
performance or payment of any covenant, liability, warranty or obligation
under this First Amended and Restated Development Agreement. 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 First Amended and Restated
Development Agreement shall not, without the prior written consent of all
Mortgagees holding Mortgages on any portion of the Property, be
amended to (a) terminate this First Amended and Restated Development
Agreement prior to the expiration of the Term (except as expressly
provided above) or (b) change any provision of this First Amended and
Restated Development Agreement which, by its terms, is specifically for
the benefit of Mortgagees. No amendment to this First Amended and
Restated Development 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,
8.8 Condemnation or Insurance Proceeds. Nothing in this First Amended
and Restated Development 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 First Amended and Restated Development
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
06761 M4488320 22
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
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 First Amended and Restated
Development 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 First
Amended and Restated Development Agreement.
067619A5448332v9 23
8.12 Conflicts, If there Is any conflict between this Section 8 and any other
provision contained in this First Amended and Restated Development
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 First Amended and Restated
Development Agreement, their obligations are Joint and several.
9.2 Entire Agreement, Waivers and Amendments. This First Amended and
Restated Development Agreement constitutes the entire understanding
and agreement of the Parties with respect to the matters set forth in this
First Amended and Restated Development Agreement. This First
Amended and Restated Development Agreement supersedes all
negotiation or previous agreements between the Parties respecting this
First Amended and Restated Development Agreement, All waivers of any
provision of this First Amended and Restated Development Agreement
must be in writing and signed by the appropriate authorities of City or of
Owner. All amendments to this First Amended and Restated Development
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. Upon the completion of performance of this
First Amended and Restated Development Agreement 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 First Amended and Restated
Development Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this First
Amended and Restated Development Agreement are part of this First
Amended and Restated Development Agreement.
9.6 Captions. The captions of this First Amended and Restated Development
Agreement are for convenience and reference only, and shall not define,
067619\t4488320 24
explain, modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this First Amended
and Restated Development Agreement.
9.6 Consent, Where the consent or approval of a Party is required by or
necessary under this First Amended and Restated Development
Agreement, the consent or approval shall not be unreasonably withheld.
9.7 Covenant of Cooperation. The Parties shall cooperate with and deal
with each other in good faith. They will assist each other to the extent
needed in the performance of the provisions of this First Amended and
Restated Development Agreement,
9.8 Time of Essence. Time is of the essence for each provision of this First
Amended and Restated Development 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 First Amended and Restated Development
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 First Amended and Restated
Development Agreement or require changes in plans, maps, or permits
approved by the City, the parties shall provide the other party with
written notice of such state or federal restriction, provide a copy of such
regulation or policy, and a statement of conflict with the provisions of
this First Amended and Restated Development Agreement, The Parties
shall, within thlrty (30) days, meet and confer in good faith In a
reasonable attempt to modify this First Amended and Restated
Development 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
this First Amended and Restated Development 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 Recording, The City Clerk shall cause a copy of this First Amended and
Restated Development Agreement to be recorded with the Office of the
County Recorder of Orange County, California, within ten (10) days
067619 \5448972v5 25
following the effective date of this First Amended and Restated
Development Agreement.
IN WITNESS WHEREOF, this First Amended and Restated Development
Agreement has been executed by the City of Santa Ana and by Owner.
Dated this --LL— day of 2 3
ATTEST THE CITY OF NTA ANA
ClerK of the Council -� City Manager
i
MWI+ ONSMI
LYON HOUSING (FIRST STREET) XLVIII, LLC
a Delaware limited liability comp
y, -
Title:
Title:
06761915448832x5 26
CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange SS
City of Santa Ana
On this 17th day of June, 2014, before me, Maria D. Huizar , Notary Public,
personally appeared David Cavazos, City Manager who proved to me on the basis of
satisfactory evidence to be the CerAn /persons whose Qg:rCWnarmes(19w-- e.subscribed to
the within instrument and acknowledged to me that(6PWhe /they_.executed the same in
�hijg /h-er/thEir authorized (, _pa�rfy /capacities and that by( heFAheiG* natu e /signa.tures
on the instrument the or the entity upon behalf of which the
6jr" 1perso'ns acted, executed the instrument. I certify under PENALTY OF PERJURY
under the laws of the State of California that the foregoing is true and correct. Witness
my hand and official seal.
NOTARY SEAL Witness my hand and official seal.
HUIZAR
MARIA D,
Commission a 1974202 Signature of Notary
Notary Public - Calitornla
Orange county >
M Comm Expires Apr 5, 2016
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
❑ Individual(s)
❑ Corporate
❑ Officers
Title(s)
❑ Partner(s)
❑ General Partner of a Limited
❑ Partnership
❑ Attorney -in -Fact
❑ Trustee (s)
❑ Subscribing Witness
❑ Guardian /Conservator
❑ Other:
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: RE:
LYON HOUSING (FIRST STREET) XLVIII LLC
TITLE OR TYPE OF DOCUMENT: FIRST AMENDED AND RESTATED DEVELOPMENT
AGREEMENT NO. 2007 -01
NUMBER OF PAGES: DATE OF DOCUMENT:
SIGNER (S) OTHER THAN NAMED ABOVE:
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of OiconGCL_
CIVIL CODE § 7189
On l' n-e_ 5 , �c)tL before me, Saaah�n �_ TuhnSer J«a, �, �vJo�vc
rat
Here a of the 6Hicer '
personally appeared FA c \ l h'rnrvnt 1 kle�
Name(s) of Signer(s)
S4ir riE 2
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fVgUry t>u09e • 04111ornfa z
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who 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.
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: KL�A� r1 9 I.eti� w
Place Notary Seal Above T q ® ure t Signat Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
r�
Title or Type of Document: l C(T) /a Y en�ei ant �CS�c hx( ���• �SVnemr r
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signerls)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
e
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
U Me National Notary Association • National Notary. org • 1.800-U5 NOTARY (1- 800 -876 -6827) Item #5907
Property Leal Description
THAT PORTION OF LOT 15 OF THE MAYBURY TRACT, IN THE CITY OF SANTA
ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 36, PAGE 65 OF MISCELLANEOUS MAPS, RECORDS OF
LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS;
PARCEL No, 1 AS SHOWN ON A MAP FILED IN BOOK 98, PAGE 30 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY,
CALIFORNIA, AS AMENDED BY A CERTIFICATE OF CORRECTION RECORDED
OCTOBER 20, 1977 IN BOOK 12424, PAGE 543 OF OFFICIAL RECORDS,
EXCEPTING THEREFROM THAT PORTION OF PARCEL 1 AS SHOWN ON A MAP
FILED IN BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF ORANGE COUNTY, CALIFORNIA, SITUATED IN THE CITY OF
SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS;
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL I; THENCE
ALONG THE SOUTHERLY LINE OF SAID PARCEL 1 NORTH 89 031'52" EAST 34,14
FEET; THENCE NORTH 45 °19'14" WEST 38.28 FEET TO A LINE PARALLEL WITH
AND FEET EASTERLY FROM THE WESTERLY LINE OF SAID PARCEL 1; THENCE
SOUTH 89 049'39" WEST 7,00 FEET TO SAID WESTERLY LINE; THENCE ALONG
SAID WESTERLY LINE SOUTH 0 910'21" EAST 27,18 FEET TO THE POINT OF
BEGINNING, AS GRANTED TO THE CITY OF SANTA ANA, IN DEED RECORDED
SEPTEMBER 18; 1990 AS INSTRUMENT No. 90- 493896, OF OFFICIAL RECORDS,
Orange County Assessor's Parcel Number 400- 081 -08
96761 +9\54488320 Exhibit A -1
Property Site Plan
067619\54488320 Exhibit B � I
1, The Public Art shall be designed, constructed, and Installed by Owner.
2. A Final Design Plan for the Public Art 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 unit of the 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.
The installation shall occur no later than 180 days after the first utility release for
the Project. Owner shall expend not less than One Hundred Twenty Five Thousand
Dollars ($125,000) in total in connection with the Public Art.
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 visible 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.
5, No Public Art shall include advertising of any type, including but not limited to
products, service, or businesses,
7. All Public Art shall be properly maintained at all times, be free of any graffiti, and
shall not Incorporate any flashing or distracting form of illumination.
8. The Owner may assign ownership, maintenance and /or repair responsibilities of
the Public Art to one or more Owners' Association(s),
9. All Public Art shall remain on the Property and may not be removed without the
approval of the Planning Commission.
% Expenses not included in the Public Art Fee.
a. Expenses to locate the artist(s) (e.g„ airfare for artist interviews, etc.)
b, Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
069619',54,M320 Exhibit C -1
c. 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,
d. Utility fees associated with activating electronic or water generated artwork.
e. Lighting elements not integral to the illumination of the Public Art.
f, Publicity, 'public relations, photographs, educational materials, business
letterhead or logos bearing artwork image.
g. Dedication ceremonies, including sculpture unveilings or grand openings.
06761%S448V20 Exhibit C -2
14AIR -01
Additional Offsite Mitigation Measures
Improvement
Location
Pay fair share of all costs to acquire
required right of way for and construct
Fourth Street at Southbound SR-55 on-
°fus
eastbound right turn lane
ramp ( #in Avenue to SR-55)
In order to implement & satisfy mitigation
measure MM 4.12 2, construct raised
First Street and Cabrillo along the
"Pork- chop" island to Public Works
project frontage
Agency specifications
Note; For offsite public improvements constructed by Owner (i.e., "pork -chop" island), it
shall pay all workers employed in connection with the work not less than the prevailing
rates of wages, as provided in the statutes applicable to public works contracts,
including without limitation §§ 1770 -1780 of the California Labor Code,
067e19\5448832Y5 f xhlbh D -I