HomeMy WebLinkAbout11A - 2ND READ ORD - THE HERITAGEREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
FEBRUARY 16, 2016
TITLE:
ORDINANCES - SECOND READING:
APPROVE AMENDMENT APPLICATION NO,
2014 -04 FOR SPECIFIC DEVELOPMENT NO.
88 (SD -88) AND DEVELOPMENT
AGREEMENT NO. 2015 -03 AS AMENDED
FOR THE HERITAGE MIXED -USE
DEVELOPMENT PROJECT — 2001 EAST
DYER ROAD
(STRAT PLAN N!� 1)
CITY MAN GER
RECOMMENDED ACTION
Place ordinances on second reading and adopt.
DISCUSSION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15' Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
On February 2, 2016, the following Ordinances were introduced for first reading and City Council
authorized publication of title by a vote of 6 -0 (Martinez absent):
ORDINANCE NO. NS -2892 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA REZONING THE HERITAGE PROPERTY LOCATED AT 2001 EAST DYER
ROAD FROM LIGHT INDUSTRIAL (M -1) TO SPECIFIC DEVELOPMENT NO. 88 (SD -88)
(AA NO. 2014 -04) AND ADOPTING SPECIFIC DEVELOPMENT NO. 88 (SD -88) FOR SAID
PROPERTY
ORDINANCE NO. NS -2893 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING A DEVELOPMENT AGREEMENT FOR THE PROPERTY
LOCATED AT 2001 EAST DYER ROAD, BETWEEN THE CITY OF SANTA ANA AND
HERITAGE VILLAGE OC, A DELAWARE LIMITED
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability,
Engagement & Sustainability, Objective #1 (Establish a comprehensive community engagement
initiative to expand access to information and create opportunities for stakeholders to play an
active role in discussing public policy and setting priorities).
11 A -1
Ordinances — Second Reading: The Heritage Mixed -Use Development Project
2001 East Dyer Road
February 16, 2016
Page 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
Maria D. Huizar, /
Clerk of the Council
EXHIBITS: 1. Ordinance No. NS -2892
2. Ordinance No. NS -2893
11 A -2
ORDINANCE NO, NS-
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA REZONING THE HERITAGE
PROPERTY LOCATED AT 2001 EAST DYER ROAD
FROM LIGHT INDUSTRIAL (M -1) TO SPECIFIC
DEVELOPMENT NO. 88 (SD -88) (AA NO. 2014 -04)
AND ADOPTING SPECIFIC DEVELOPMENT NO. 88
(SD -88) FOR SAID PROPERTY
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find,
determine and declare as follows:
A. Amendment Application No. 2014 -04 has been filed with the City of
Santa Ana to change the zoning district designation of certain real
property located at 2001 East Dyer Road from Light Industrial (M -1)
to Specific Development No. 88 (SD -88), The Specific Development
No. 88 zoning district (SD -88) would allow the development of The
Heritage mixed -use development project, which would include 1,221
apartment homes, 12,675 square feet of retail commercial space, and
5,415 square feet of restaurant space on an 18.84 acre parcel of
land.
B. The Planning Commission of the City of Santa Ana held a duly
noticed public hearing on October 12, 2015, on Amendment
Application No. 2014 -04 and decided to recommend that the City
Council adopt an ordinance approving Amendment Application No.
2014 -04, which is consistent with the General Plan, as amended by
General Plan Amendment No. 2015 -03.
C. This City Council, prior to taking action on this ordinance, held a duly
noticed public hearing on February 2, 2016.
D. The City Council also adopts as findings all facts presented in the
Request for Council Action dated February 2, 2016 accompanying
this matter.
E. For these reasons, and each of them, Amendment Application No.
2014 -04 is hereby found and determined to be consistent with the
General Plan of the City of Santa Ana and otherwise justified by the
public necessity, convenience, and general welfare.
11 A -3
Section 2. The City Council has reviewed and considered the information
contained in Final Environmental Impact Report No. 2015 -01 prepared with respect
to this project. The City Council has, as a result of its consideration of the record as
a whole and the evidence presented at the hearings on this matter, determined
that, as required pursuant to the California Environmental Quality Act (CEQA) and
the State CEQA Guidelines, Final Environmental Impact Report No. 2015 -01 meets
all requirements of CEQA.
Section 3. The real property located at 2001 East Dyer Road in Santa
Ana is hereby reclassified from Light Industrial (M -1) to Specific Development No.
88 (SD -88). An amended Sectional District Map, showing the above described
change in use district designation, is hereby approved and attached hereto as
Exhibit A and incorporated by this reference as though fully set forth herein.
Section 4. Specific Development No. 88 (SD -88) attached hereto as
Exhibit B and incorporated by this reference as though fully set forth herein is
approved and adopted in its entirety.
Section 5. This ordinance shall not be effective unless and until
Resolution No. 2015- (FEIR No. 2015 -01; GPA No. 2015 -03; and,
VTTM No. 2015 -03) and Ordinance No. 2015- _ (Development Agreement
No. 2015 -03) are adopted and become effective. If said resolution and ordinance
are for any reason held to be invalid or unconstitutional by the decision of any court
of competent jurisdiction, or otherwise does not go into effect for any reason, then
this ordinance shall be null and void and have no further force and effect.
Section 6. 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
11 A -4
2016.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By; z L — t- —1
Lisa Storck
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the
attached Ordinance No, NS- to be the original ordinance adopted by the
City Council of the City of Santa Ana on , 2016, and that said
ordinance was published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
11 A -5
Exhibit A
Sectional District Map
11 A -6
L
�FAv
15
® DYER RD
(A �
/ rT_rr
i
i
F\
\
•r\
\
yi
Santa Ana Zoning Designations 1 Description
At General AgricWlural
DT
DowNo.
R4
Suburban Apanm rd
C1 Commuriy Cpmneraal
GC
Gowpmrent Center
RE
Residential Estate
CI -MD Commiiuiy Commarcial - Museum District
Mt
Light Industrial
SD
Specific Development
C2 General CommsrciM
M2
Heavy ktlustrial
SP
Specific plan
C4 Planted Shopping Center
0
Open Space
TV
Tramit Village
CS Adedal Commercial
P
professional
UC
Urban Center
CDR Corridor
Rt
Sirigle-Famly Residence
UNt
Urban Neighborhood1
CR Commercial Residential
R2
Tiw- Farnily Residence
UN2
Urban Neighborhood
GSM Saulh Main StreetCommercral District
R7
Multi ple�artily Residence
0 500
Feet
EXHIBIT A
11 A -7
Exhibit B
Specific Development No. 88 (SD -88)
11 A -8
SPECIFIC DEVELOPMENT PLAN NO. 88
The Heritage
SECTION I — APPLICABILITY OF ORDINANCE
The Specific Development zoning district No, 88 (SD -88) for The Heritage project site is
authorized by Chapter 41, Division 26 Section 41 -593 et seq, of the Santa Ana Municipal
Code, SD No. 88 contains the specific standards and regulations contained in the residential
and commercial districts, as herein amended, for the purpose of establishing land use
regulations and standards. All other applicable chapters, articles, and sections of the Santa
Ana Municipal Code are in effect unless superseded by regulations contained in this
ordinance.
SECTION 2 — PURPOSE
The Specific Development Plan No. 88 for The Heritage nixed -use development consists of
standards and regulations established for the purpose of protecting the health, safety, and
general welfare of the people of the City of Santa Ana by promoting and enhancing the value
of property and encouraging the orderly development of the property.
The Heritage Mixed Use Specific Development Plan No. 88 (SD -88) sets forth the
development and design criteria for a development consisting of approximately 18.84 acres.
The purpose of this specific development plan is to permit flexibility in site planning and
design to respond to market conditions while assuring high quality development, Specific
Development Plan No. SD -88 specifically establishes for the property the following:
Permitted uses.
• Development standards, including building height limits, required
setbacks, parking requirements, landscaping provisions and enforcement
policies.
Public Park requirements
• Maximum development intensity,
Dii ec Lly es
The objectives of The Heritage, mixed -use specific development plan include
provision of the following:
I . Development of a mixed -use project within a major freeway corridor.
2. Promotion of the City's image as a regional activity center.
3. Pedestrian access between commercial uses and residential neighborhoods
which are in close proximity.
EXHIBIT B
Page 'I of 6
11 A -9
4. A clean and safe environment for the City's residents, workers and visitors.
5. Pedestrian friendly and walkable streets between the residential, commercial and
office uses, thereby reducing the use of vehicles.
6. A visually harmonious development as viewed both internally and
externally.
7. Flexibility in development in response to market conditions while achieving
overall City and community goals.
SECTION 3 — Uses permitted in Specific Development No. 88
The following uses are permitted in the SD -88 district:
(a) Multiple- family dwellings
(b) Live /work lofts
(c) Retail and service uses
(d) Restaurants, cafes and eating establishments
(e) Office uses
(t) Other uses as deemed compatible by the Planning Manager or designee
SECTION 4 — Uses subject to a conditional use permit in Specific Development No. 88
(a) Establishments open at any time between the hours of 12:00 a.m. and 7:00 a.m.
(b) Establishments selling alcoholic beverages
(c) Laundromats
SECTION 5 — Maximum permitted building intensity
The maximum authorized building intensity for The Heritage is 2,209,227 gross square feet
(including the parking garages) or 1,495,301 square feet (exclusive of the parking garages)
for the mixture of uses in the project. The maximum number of residential units for the
project is 1,221, The maximum allowable office area is 56,000 gross square feet. The
maximum square footage for the retail and restaurant components is limited to '18,090 gross
square feet.
SECTION 6 — Minimum lot area in Specific Development No. 88
Developable lots for the project shall have a minimum lot area of 1.66 acres.
Page 2 of 6
11A -10
SECTION 7 — Minimum street frontage in Specific Development No. 88
Developable lots shall have a minimum street frontage of at least 200 feet.
SECTION 8 — Building height in Specific Development No. 88
No stricture shall exceed 100 feet in height, as measured from the lowest adjacent grade of a
structure to the top of the structure.
SECTION 9 — Lot coverage in Specific Development No. 88
No more than 60 percent of the lot shall be covered by strictures,
SECTION 10 —Development standards in Specific Development No. 88
The Heritage development shall be built as shown on the approved project plans included as
attachments to the SD. The plans shall govern in the event there is a conflict between the
SD with the project plans. In addition, the following standards are applicable to the project:
(a) Setbacks.
(1) A minimum setback of 20 feet shall be provided between the property line
and buildings on Redhill Avenue
(2) A minimum setback of 12 feet shall be provided between the property line
and buildings on Dyer Road.
(3) A minimum setback of 10 feet shall be provided along the northern and
western internal property lines
(4) A minimum 10 foot setback shall be provided the property line and
buildings fronting an interior street
(b) Parking and Circulation. The minimum off -street parking requirements for the
project are as follows:
1) A total of 1.71 parking spaces per unit
2) One guest space for every 10 unit
3) One space per 200 square feet for retail and restaurant uses
4) One space per 550 square feet for office uses
(c) Pedestrian Walkways and Open Space. The project will provide a
public park, trails and similar open spaces at a minimum of six acres.
The Pedestrian paseos and walkways shall be provided as shown on
approved plan.
Page 3 of 6
11A -11
(d) Walls /Fences.
A solid block wall with a minimum height of eight feet shall be
constructed along the north and west property lines.
(e) Landscapine
Detailed landscaping plans shall be submitted to and be approved by the City of
Santa Ana Planning Division prior to issuance of a building permit and installed
as required in the approved phasing plan. The landscape plan shall include
approximately 31 percent (31 5,456 square feet) of open space (courtyards,
common area amenities, roof terraces and perimeter plazas and open space)
within the ,project site including the Central Park with an outdoor theatre and
putting green and Par Course/Walking Trail located along the northerly end of
the site.
Private open space recreation and amenities for residents shall include a resort
style saltwater pool and spa, private cabanas, fire pits, dog park with washing
stations, outdoor barbeque and lounges, fitness area, community center with
billiards, shuffleboard, table tennis, kitchen demonstration area for cooking
classes and a screening room, tennis and basketball courts and children's play
area. Each building shall have a common area rooftop deck with outdoor
kitchen and seating areas.
(f) Architectural and Design Features.
(1) Exterior materials. Exterior materials and finishes for the
project shall comply with the approved materials board
submitted for the project. All trash enclosures and similar
ancillary structures shall match the texture, material and
color of the building.
(2) Flardscape materials. Enhanced paving materials shall be
installed at the driveway entrances, the project main entrance
and the public park area. The actual paving materials shall be
approved by the Planning Division.
(3) Lighting standards /fixtures. The light fixtures are to
integrate design elements of the building and landscape
architecture. Lighting is to be designed to confine the direct
rays of the artificial lighting within the boundaries of the
development. Specifications of light standards /fixtures and
photometrics plan shall be submitted to Planning Division
for approval.
(4) Gateway clement, A monument or similar design feature
identifying an entry point or gateway into Santa Ana shall be
installed.
Page 4 of 6
11A -12
SECTION I I — Signage standards in Specific Development No. 88
Lots in the SD No. 88 zoning district shall comply with the following standards:
(a) Signage shall comply with the standards set forth in sections 41 -850 through 41 -1000 of
the SAMC, with the exception of the standards identified below.
(b) A comprehensive sign program shall be submitted for review and approval by the
Planning Division. The sign program may include creative Signage where the sign
proposal is not consistent with existing Code provided it is designed to complement the
form and function of the building and contributes to the aesthetics of the project.
SECTION 12 — Landscape standards for Specific Development No. 88
In the SD No. 88 zoning district, all yards shall be landscaped. The site shall comply with
the landscape plans included as an exhibit to the SD. In addition, the landscape plans shall
comply with the following minimum requirements:
(a) Front /side yard facing a street:
(1) Two 24 -inch box canopy trees,
(2) All trees shall be double- staked.
(3) Six five - gallon size shrubs and 10 one - gallon size herbaceous perennials /shrubs
as a foundation planting.
(4) Turf or acceptable dry climate ground cover:
i. Turf shall be drought tolerant variety and planted as sod or hydroseed.
ii. Ground cover shall be well - rooted cuttings fiom flats and planted at
appropriate spacing for that particular plant material.
(b) Irrigation systems:
(1) A pop -up sprinkler type irrigation system shall be provided for all yards
(2) The use of "xcriphytic" or dry climate type plant materials is encouraged.
Irrigation systems may require special fittings to properly water dry climate
plantings.
Page 5 of 6
11A -13
(c) Screening;
(1) All meters shall be appropriately screened from public view with trellis work and
vines or a hedge type slu-ub or they shall be incorporated into the stricture.
(2) Any enclosed structure for utilities must not encroach into any required setback.
(d) Maintenance:
(1) All plant material shall be maintained per section 41 -609 of the Santa Ana
Municipal Code.
Page 6 of 6
11A -14
ORDINANCE NO. NS -XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING A DEVELOPMENT
AGREEMENT FOR THE PROPERTY LOCATED AT 2001
EAST DYER ROAD, BETWEEN THE CITY OF SANTA ANA
AND HERITAGE VILLAGE OC, A DELAWARE LIMITED
LIABILITY COMPANY
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City is authorized pursuant to Government Code Sections 65864
through 65869.5 to enter into development agreements with persons having legal or
equitable interests in real property for the purpose of establishing certainty for both City
and owner in the development process.
B. The City enters into this Development Agreement pursuant to the
provisions of the Government Code and applicable City policies.
C. This Development Agreement came before the Planning Commission for a
duly noticed public hearing on October 12, 2015. At that hearing, the Planning
Commission recommended that the City Council approve said Development
Agreement.
D. Entering into this Development Agreement would provide the City with
extraordinary and significant benefits that are of regional significance, relate to existing
deficiencies in public facilities, require the owner of The Heritage 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 project and the use that the owner proposes in connection with the
property have been extensively reviewed and considered by the City, and such
proposed development and use have been found to accommodate the City's
recommendations and suggestions in order to protect the public's interest to enhance
the desirability of such proposed development and use. The terms and conditions of
this Development Agreement have been found to be fair, just and reasonable, and the
City has concluded that the pursuit of the Project will serve the interests of the City.
F. The City Council, prior to taking action on this ordinance, held a duly
noticed public hearing on February 2, 2016.
G. Final Environmental Impact Report No. 2015 -01, including the Findings of
Fact, Statement of Overriding Considerations, and Mitigation Monitoring Program, have
Ordinance No. NS -XXX
Page 1 of 4
11A -15
been prepared and certified by this City Council by resolution simultaneously with the
introduction of this ordinance.
H. The proposed project will not adversely affect the General Plan, as
amended by General Plan Amendment No. 2015 -03, as is expressly set forth in the
Request for Council Action dated February 2, 2016, together with all supporting
documents, including but not limited to, proposed resolutions, which are incorporated
herein by this reference.
Section 2. The Development Agreement, a true and correct copy of which is
attached hereto as Exhibit A and incorporated herein by this reference, is hereby
approved, and the City Manager and Clerk of the Council are authorized to execute it on
behalf of the City with such non - substantive changes as may be authorized by the City
Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to
cause this Development Agreement to be recorded with the County Recorder's Office.
Section 3. This ordinance shall not be effective unless and until Resolution No.
2015- (FEIR No. 2015 -01; GPA No. 2015 -03; and, VTTM No. 2015 -03) and
Ordinance No. 2015- (AA No. 2014 -04) are adopted and become effective. If said
resolution and ordinance are for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, or otherwise does 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 2016.
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By: ✓t� i c Cam" ��`'
Lisa Storck
Assistant City Attorney
Miguel A. Pulido
Mayor
11A -16
Ordinance No. NS -XXX
Page 2 of 4
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, 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 , 2016 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
11A -17
Ordinance No. NS -XXX
Page 3 of 4
EXHIBIT A
DEVELOPMENT AGREEMENT
Ordinance No. NS -XXX
Page 4 of 4
11A -18
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code §§ 6103 and 27383
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
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
HERITAGE VILLAGE OC, LLC,
Dated: FEBRUARY 2, 2016
11A -19
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
HERITAGE VILLAGE OC, LLC,
a Delaware limited liability company
This 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 Heritage Village OC, LLC, a Delaware
limited liability company ( "Owner "). The City and Owner are referred to jointly within this
Development Agreement as the "Parties" and individually as a "Party."
RECITALS. The Development Agreement is entered into with reference to the
following facts:
1.1 The Property. The real property which is the subject of this Development
Agreement is located at 2001 East Dyer Road in Santa Ana, California
("Property"). The Property is more particularly described in Exhibits A and
B to this Development Agreement.
The Property is an 18.84 acre parcel that is located at the northwesterly
corner of East Dyer Road and Red Hill Avenue. The property contains a
single building approximately 355,000 square feet in size that was
constructed in 1972. The building is currently occupied by a variety of
uses, including a data center that is occupying approximately 10,000
square feet, and various temporary uses utilizing a small portion of the
existing warehouse space. Approximately 430 parking spaces are
currently on -site. Regional access to the project site is generally provided
via State Route 55 at the Dyer Road exit. Access to the project site is
provided by Red Hill Avenue and Dyer Road, the latter of which becomes
Barranca Parkway in the City of Irvine. The project site is located within
the City of Santa Ana limits; however it is adjacent to the Cities of Irvine
and Tustin. Areas across from Red Hill Avenue (to the east) are within the
City of Tustin and are part of the former Tustin Marine Corps Air Station,
now known as the Tustin Legacy. Areas across from Dyer Road (to the
south) are in the City of Irvine within the Irvine Business Complex.
1.2 Purpose of this Development Agreement.
(a) The purpose of this Development Agreement is to facilitate the
development of the Property.
(b) Owner's proposed project would redevelop the project site to
provide three mixed used buildings that would provide 1,221 multi-
family apartments, 12,675 square feet of retail commercial space
and 5,415 square feet of restaurant space. The existing 355,000
square foot officelwarehouse building would be reduced in size by
removing the warehouse portion of the structure to provide a two-
11A-20
story 56,000 square foot office building and a 102 space surface
parking lot. The exterior of the office building would be renovated
to be consistent with the proposed architectural design of the new
mixed -use buildings. The existing office portion of the structure
provides 36,000 square feet of employee generating space and
20,000 square feet of data center use that contains only computer
equipment.
(c) The residential units would range in size from 512 square foot
studios to 1,290 square foot one- bedroom and two - bedroom units.
Three parking structures would also be developed, one structure for
each mixed -use building, The proposed project includes both
public and private (for residents) open space and recreational
facilities on the project site. A 1.01 acre public central park,
including various amenities, would be developed and would
connect to open space areas along the northern and eastern
boundaries. In addition, approximately 327,302 square feet of
private open space, as well as private recreation amenities would
be provided for residents.
1.3 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 Development Agreement
pursuant to the provisions of the Government Code and applicable City
policies. The Parties acknowledge:
(a) This Development Agreement is intended to assure adequate
public facilities at the time of development.
(b) This Development Agreement is intended to assure development in
accordance with City's General Plan, and any applicable Specific
Plans.
(c) This Development Agreement will permit achievement of goals and
objectives as reflected in the City's General Plan, and any and all
applicable Specific Plans.
(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 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.
11 A -21
(f) Many of the extraordinary and significant benefits identified as
consideration to City for entering into this 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.
1.4 Ownership, Owner represents and warrants that it has a legal or
equitable interest in the Property.
1.5 Interest of Owner. Owner represents that it has approved this
Development Agreement and is authorized to enter into this Development
Agreement.
1.6 Public Hearings. The Development Agreement was the subject of the
following public hearings:
(a) Planning Commission, On October 12, 2015, 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 Development Agreement and the
environmental documentation evaluating the potential impacts of
the proposed project.
(b) City Council. On February 2, 2016, the City Council, after
providing notice as required by law, held a public hearing to
consider Owner's application for this Development Agreement and
the proposed project.
(c) Environmental Analysis. Before approving this Development
Agreement, the Planning Commission and the City Council
reviewed the Environmental Impact Report, and the City Council
certified Final Environmental Impact Report No. 2015 -01.
1.7 City Council Findings. The City Council finds that this Development
Agreement is consistent with the General Plan, as amended by General
Plan Amendment No. 2015 -03, applicable specific plan(s), applicable
zoning regulations, and all other applicable ordinances, plans, policies and
regulations of the City.
1.8 City Ordinance. On February 2, 2016, the City Council adopted
Ordinance No. NS- approving this Development Agreement.
That ordinance becomes effective thirty (30) days after the date of
adoption.
2. DEFINITIONS. In this Development Agreement, unless the context otherwise
requires:
11 A -22
2.1 "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 ( "SAMC "), Specific Development
Plan No. 88 as adopted by Amendment Application No. 2014 -04, this
Development Agreement and the Entitlements, as defined below.
2.2 "Effective Date" means March 17, 2016, the date upon which the
ordinance approving the Development Agreement becomes effective.
2.3 "Entitlements" means this Development Agreement No. 2015 -03, Final
Environmental Impact Report No. 2015 -01, General Plan Amendment No.
2015 -03, Vesting Tentative Tract Map No. 2015 -03, Amendment
Application No. 2014 -04, and any changes to these to which Owner has
consented in writing.
2.4 "Owner" means Heritage Village OC, LLC, a Delaware limited liability
company.
2.5 "Project" is the development on the Property of a 1,221 -unit multiple
family residential apartment development, 12,675 square feet of retail
commercial space, and 5,415 square feet of restaurant space, as
generally set forth in the Entitlements.
2.6 "Property" means the real property described in Exhibit A and referred to
in Exhibit B.
17 "Public Art" is defined in Section 5.1.7.
2.8 "Public Art Fee" is defined in Section 5.1.7.
2.9 "Public Art Plan" is set forth in Exhibit C to this Development Agreement.
2.10 "Reserved Powers" means the rights and authority excepted from this
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 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; or (d) relate to increases in development impact fees occurring
after the Effective Date.
2.11 "Uniform Codes" means those building, electrical, mechanical, fire and
other similar regulations which are based on recommendations of a multi-
11 A -23
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).
2.12 "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 Development Agreement
are attached to this Development Agreement and are identified as follows;
Exhibit
Designation
Description
Referred to
in Section
A
Property Legal Description
1.1, 2.6
B
Property Graphical Description
1.1
C
Public Art Plan
2.g, 5.1.7
4. GENERAL PROVISIONS.
4.1 Term of Development Agreement ( "Term "). This Development
Agreement shall have a six (6) year term beginning on the Effective Date
of March 17, 2016, and ending on March 17, 2022, The Term shall be
automatically extended for an additional three (3) years if Phase 1 and
Phase 2 are deemed complete. In order to be deemed complete, all
permits must have been finalized, utilities should have been released and
a Certificate of Compliance must have been issued for Phase 1 and
Phase 2. If a building permit has not been issued for Phase 3 prior to the
end of the initial 6 year term of the Development Agreement, the
architectural, fagade treatment and landscaping plans for Phase 3 shall be
subject to Staff level design review prior to issuance of the building permit
for Phase 3 to determine whether the exterior design needs any updating.
Should updates be required by the Executive Director, the Owner shall
prepare plans accordingly, which may be administratively approved by the
Director. The Executive Director shall also have the authority to approve
any necessary minor modifications to the project requested at the time of
the Term extension. Any dispute pertaining to any extension shall be
11 A -24
brought before the Planning Commission for review and City Council for
final determination.
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 Development Agreement; provided, however, the rights of Owner
under this Development 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 Development Agreement
shall include in writing the assumption of the duties, obligations, and
liabilities arising from this 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 Development Agreement
shall be wholly void and of no force and effect unless such written consent
thereto be obtained from the City Council. A transfer or assignment of the
rights under this Development Agreement without the consent of the City
Council 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 Development Agreement, any approved assignee
or transferee of the rights under this Development Agreement shall
observe and perform all of the duties and obligations of Owner contained
in this 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
Development 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 Development Agreement. Upon assignment or transfer of the rights of
Owner under this 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 Development Agreement,
4.2.1 Permitted Assignments. The prohibition against transfer
of ownership of the Property as defined in section 4.2
above, shall not apply to, and the City hereby consents to
the following:
a. Transfers to associations, including limited partnerships, limited
liability companies, or joint ventures with other entities for the
1 11 -25
purpose of performing the Owner's obligations under this
Agreement, provided Owner may be in common control with the
transferee or retains primary operational and managerial control
of the transferee so long as the Owner retains at least 51 %
interest at all times.
b. Easements or temporary permits to facilitate the development of
the Property.
c. Deeds of trust or other financing documents executed for the
purpose of securing loans to Owner made to finance
development of the Property, and transfers to any person or
entity pursuant to a foreclosure or deed in lieu of foreclosure of
such deed of trust or other, similar financing documents and any
subsequent transfer by any such person or entity.
4.3 Amendment or Cancellation of Development Agreement. This
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.
4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this
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 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,
attorney's fees, restitution, judicial or (to the extent legally possible)
equitable relief arising out of claims for personal injury, including death,
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 2.5, 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 Development Agreement.
Notwithstanding any other provision of this Development Agreement, this
indemnity and duty to defend shall be limited as follows:
7
11 A -26
(a) In the event of any Litigation the parties agree to affirmatively
cooperate in defending said action.
(b) 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 attorney's fees and costs).
(i) 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.
(c) 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 attorney's fees to plaintiff /petitioner incurred prior to the
effective date of termination.
4.6 Binding Effect of Development Agreement, To the extent not otherwise
provided in Section 4.2 of this Development Agreement, the burdens of
this Development Agreement bind, and the benefits of the Development
Agreement inure, to the parties' successors in interest, transferees and
assigns.
4.7 Relationship of the Parties. The contractual relationship between City
and Owner arising out of this Development Agreement is one of
independent contractor and not agency. This Development Agreement
does not create any third party beneficiary rights.
4.8 Notices. Any notice, tender, demand, delivery, or other communication
pursuant to this 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.O. Box 1988
Santa Ana, California 92702
11 A -27
and
City Attorney, City of Santa Ana
20 Civic Center Plaza M -29
P.O. Box 1988
Santa Ana, California 92702
If to Owner, to:
Heritage Village OC
1945 Port Chelsea Place
Newport Beach, CA 92660
Attention: General Counsel
BE
Allen Matkins
1900 Main Street, 5'" Floor
Irvine, CA 92614
Attention: William R. Devine
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 telefacsimile 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 City Obligations. In consideration for Owner entering into this
Development Agreement and performing its obligations hereunder, and in
order to effectuate the purposes and intentions set forth in this
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
11 A -28
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 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
Development Agreement. In the event that state or federal
laws or regulations enacted after this Development
Agreement has been entered into, prevent or preclude
compliance with one or more provisions of this
Development Agreement, such provisions of this
Development Agreement shall be modified or suspended as
may be necessary to comply with such state or federal
laws or regulations.
5.1.3 Agreed Changes and Other Reserved Powers. This
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.
5.1A 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.
5.1.5 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,
11 A -29
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 or
federal law, such ordinance, resolution or other measure
shall not apply to the Project, Property or this Development
Agreement, unless such changes are adopted pursuant to
the City's exercise of its Reserved Powers or other
applicable provision of this 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 5.8, 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.
5.1.7 Development, Construction, and Completion of Public
Art. Owner shall include within the Project a single or
grouped permanent work of public art consistent with the
Public Art Plan (collectively, "Public Art "), attached herewith
and Incorporated herein as Exhibit C, at a cost of not less
than one half of 1 % of the total construction costs which is
approximately One Million Three Hundred Twelve
Thousand Dollars ($1,312,000) (the "Public Art Fee "). The
actual amount of the Public Art Fee shall be determined at
building plan check submittal.
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, City
retains the right to enact police power regulations on matters not
covered by Section 5.1 of this Development Agreement, including
without limitation:
11 A- 30
(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 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 Development Agreement;
• Building, electrical, mechanical, fire and similar codes based
upon uniform codes incorporated by reference into the Santa
Ana Municipal Code;
• 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.
5.4 FAA and ALUC Approval. Owner shall obtain and maintain, during
the term of this Development Agreement, any and all necessary
approvals from the Federal Aviation Administration (FAA) and the
Airport Land Use Commission (ALUC) 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 Development Agreement.
5.4.1 Avigation Easement, The Owner shall, prior to issuance of the first
building permit for the Project, execute an avigation easement in a form
approved by the City Attorney, which shall be recorded with the Orange
County Recorder's Office. The avigation easement shall prohibit any and
all claims, actions or lawsuits of any kind or type for nuisance or
interference with use and enjoyment of the underlying Property or the
Project, including but not limited to noise, sound, vibration, fumes, fuel
particles, dust, discomfort or other environmental effects incident to
aircraft operations as well as any inconvenience or annoyances caused by
11 A -31
the operations of the John Wayne Airport (SNA). The avigation easement
shall grant the right to enter or penetrate into or transmit through the
airspace above, on or in the vicinity of the 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 Property that may be, or may
be alleged to be, incident to or resulting from the use of said airspace and
any and all related aircraft and airport operation. The City shall be the
benefited party in the avigation easement, but said easement shall be
assignable by the City to a third party, including but not limited to John
Wayne Airport (SNA), without consent of Owner.
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 Development
Agreement, shall apply to the development of the Property.
5.6 Amendments or Additions to Citywide Fee Programs. This
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 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
Development Agreement,
5.7 Open Space. All common area open space on Lots A and B of Vesting
Tentative Tract Map No, 17962 must be built in the first phase.
5.8 Phasing of Project. The parties agree and acknowledge that the Project
may be built in three (3) phases, 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. Additionally,
Owner shall build all private streets and the central park in the first phase.
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 Executive Director of the Planning and Building Agency. The
proposed Phasing Plan shall contain those items Owner deems
11 A -32
necessary, but shall include the timing for first and second phase
construction and interim site improvements (i.e., landscaping, internal
circulation) between the phases. The approved Phasing Plan must be
implemented within six (6) months after completion of the first phase (i.e.,
issuance of first Utility Release). Generally, the phases shall proceed as
follows:
Phase I
The first phase of the project would consist of 335 apartment homes within
two five -story apartment buildings wrapping a parking structure. This
phase would be built on the south side of the parcel facing Dyer Road.
Five different unit types and nine different floor plans are proposed for the
project, with the units ranging from studio to three bedroom units. This
phase also includes approximately 9,700 square feet of commercial and
restaurant space. The units would be wrapped around a 6' /z -level garage
that will contain 646 parking spaces, with another 18 spaces on the private
drive. Parking is provided at a rate of approximately 1.9 parking stalls per
unit, which includes guest and commercial parking.
Also to be renovated within this phase is the two- story, 56,000 square foot
office building that will house the current data center tenant as well as
other future office uses. A total of 102 parking spaces have been
allocated to this component of the project.
Phase 2
The second phase of the project would consist of 403 apartment units
situated within two five -story buildings wrapping a parking garage. This
phase would be built on the west side of the parcel with the southern
elevation facing Dyer Road. Six different unit types and nine different floor
plans are proposed for the project, with units ranging from studio to three
bedroom units. In addition, approximately 4,100 square feet of
commercial and restaurant space would be incorporated into this phase of
the project. The units would be wrapped around a 6 -level garage
containing 722 parking spaces, with another 15 spaces to be located on
the private drive. Parking for this phase has been provided at a rate of
approximately 1.83 parking stalls per unit, which includes guest parking.
Phase 3
The third and final phase of the project would consist of 483 apartment
homes within three five -story apartment buildings wrapping a parking
garage. This phase would be built at the northern area of the parcel, with
the eastern elevation facing Redhill Avenue. Six different unit types and
nine different floor plans are proposed for the project. The project units
would consist of studio, live /work, and one to three bedroom units. The
11 A -33
units would be wrapped around a 6 Y2 -level garage that would contain 609
parking spaces, with another 21 spaces to be located on the private drive.
Parking for this phase has been provided at a rate of approximately 1.72
parking stalls per unit, which includes guest parking.
5.9 Inclusionary Housing. Owner's project qualifies as a "pipeline project"
under the amended Housing Opportunity Ordinance (Article XVIII.I of
Chapter 41 of the Santa Ana Municipal Code) and shall pay the City an in-
lieu fee of $9.35 per square foot of habitable space in order to fulfill the
inclusionary housing requirement. Owner may express a preference for
how these funds may be used, but the final decision regarding use of the
inclusionary housing funds lies solely with the Executive Director of the
Community Development Agency.
5.10 Covenants, Conditions, and Restrictions. 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. Those CC &R's must be approved by the
Executive Director of the Planning and Building Agency. 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:
(a) 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.
(b) 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; and (ii) the flight path for
the airport.
(c) The release of the City from all claims which may arise from or
relate to the urban character of the City and this area.
(d) The need for the approval of the City to any proposed modifications
to the provisions of the CC &R's identified in this Section 5.10.
5.11 Conditions of Discretionary Approvals. The requirements imposed as
conditions of any discretionary approval received through the City's
existing regulatory process shall be governed by the terms of those
approvals, and in no event shall such conditions be affected by the
termination, cancellation, rescission, revocation, or default or expiration
of this Development Agreement (although such conditions must comply
with the Applicable Rules),
5.12 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,
11 d -34
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 Cade§ 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 Development Agreement, review the extent
of good faith substantial compliance by Owner with the terms of this
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 Development
Agreement at the periodic review.
6.2 Review Letter, If Owner is found to be in compliance with this
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 Executive Director of the
Planning and Building Agency, this 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
Development Agreement shall not constitute or be asserted by any Party
as a breach of this Development Agreement by Owner or City.
DEFAULT.
7.1 Events of Default. Owner is in default under this Development
Agreement upon the happening of one or more of the following events or
conditions:
11 A -35
(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 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 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 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 Development Agreement
in accordance with the procedure adopted by the City should at any
time Owner fail 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.
(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 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 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
11 A' -36
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 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 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 Development Agreement, or to enjoin any threatened or
attempted violation of this Development Agreement; or to obtain any
remedies consistent with the purpose of this 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,
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 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 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 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 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 effect 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
11 A -37
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 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 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 Development Agreement, nor shall any covenant
or any other provision in this Development Agreement be construed to
obligate such Mortgagee. Nothing in this 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 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 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 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
Development Agreement prior to the expiration of the Term (except as
expressly provided above) or (b) change any provision of this
Development Agreement which, by its terms, is specifically for the benefit
of Mortgagees. No amendment to this 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.
11 A -38
8.6 Condemnation or Insurance Proceeds. Nothing in this 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 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
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-
11 A -39
applicability of the provisions of this 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 Development Agreement.
8.12 Conflicts. If there is any conflict between this Section 8 and any other
provision contained in this 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 Development Agreement, their
obligations are joint and several.
9.2 Entire Agreement, Waivers and Amendments. This Development
Agreement constitutes the entire understanding and agreement of the
Parties with respect to the matters set forth in this Development
Agreement. This Development Agreement supersedes all negotiation or
previous agreements between the Parties respecting this Development
Agreement. All waivers of any provision of this Development Agreement
must be in writing and signed by the appropriate authorities of City or of
Owner. All amendments to this 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 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 Development Agreement.
9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this
Development Agreement are part of this Development Agreement.
11 A -40
9.5 Captions. The captions of this Development 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 Development Agreement.
9.6 Consent. Where the consent or approval of a Party is required by or
necessary under this 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 Development
Agreement.
9.8 Time of Essence. Time is of the essence for each provision of this
Development Agreement of which time is an element.
9.9 Force Majeure. Neither Party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this
Agreement is caused by floods, earthquakes, other Acts of God, fires,
wars, riots or similar hostilities, government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the
Party's control. If any such events shall occur, the Term of this Agreement
and the time for performance by either Party of any of its obligations
hereunder may be extended by the written agreement of the Parties for
the period of time that such events prevented such performance, provided
that the Term of this Agreement shall not be extended under any
circumstances for more than five (5) years.
9.10 Conflicts of Law. In the event that state or federal laws or
regulations enacted after this 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 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 Development Agreement. The Parties shall,
within thirty (30) days, meet and confer in good faith in a reasonable
attempt to modify this 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 Development Agreement, the matter shall be
scheduled for hearing before the City 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
11 A -41
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.
9.11 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the
remainder of this Agreement shall not be affected thereby to the extent
such remaining provisions are not rendered impractical to perform taking
into consideration the purposes of this Development Agreement.
9.12 Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as
a whole according to its fair language and common meaning to achieve
the objectives and purposes of the Parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved against the
drafting Party shall not be employed in interpreting this Development
Agreement, all Parties having been represented by counsel in the
negotiation and preparation hereof.
9.13 Jurisdiction and Venue. Any action at law or in equity arising under this
Development Agreement or brought by a Party hereto for the purpose of
enforcing, construing or determining the validity of any provision of this
Agreement shall be filed and tried in the Superior Court of the County of
Orange, State of California, and the Parties hereto waive all provisions of
law providing for the filing, removal or change of venue to any other court.
9.14 Counterparts. This Agreement may be executed by the Parties in
counterparts, which counterparts shall be construed together and have the
same effect as if all of the Parties had executed the same instrument.
9.15 Recording. The City Clerk shall cause a copy of this Development
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 Development Agreement.
11 A -42
IN WITNESS WHEREOF, this Development Agreement has been executed by the City
of Santa Ana and by Owner.
Dated this day of .12016.
ATTEST: THE CITY OF SANTA ANA
Maria Huizar, Clerk of the Council
APPROVED AS TO FORM:
Lisa Storck, Assistant City Attorney
David Cavazos, City Manager
HERITAGE VILLAGE OC, LLC
a Delaware limited liability company
as
Title:
11 A -43
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On , 2016 before me, a Notary
Public in for said state, personally appeared , who proved to me on the basis of
satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter
city that executed the within instrument, known to me to be the person who executed
the within instrument on behalf of the municipal corporation therein named, and
acknowledged to me that such municipal corporation executed the within instrument
pursuant to its bylaws or a resolution of its City Council.
WITNESS my hand and official seal.
Signature of Notary Public
11 A =44
EXHIBIT A
Property Legal Description
1114 -45
EXHIBIT n
LEGAI D5F31P1'10li
PANEL 2, AS S All ON EMMU1T "U -2" ATIIAOH°-D TO LO? LINE AWWL(ENT 87-02]
RECOROEO dAN3 11, 1893 A5 IAU'TRU *IT NO. M- 383021 ',F Ot l,;K REQORDS %A OOSI�l
cnuerr, vAUF,rana.
;,.V.FPt OY)SE POAMt,3 61)NYCtzo 111 THE CITY FF SANTA ANA 6, iRVIT DEEP RS;OPE'CO
7JNF I!, 2010 AE itiSnUNEN T NO 20i (MCI 1D3420 OF OFFiCLeL RECCR05,
E:c:9P IIdIO ALL OIL, OIL RI,NTS, WINALS, lVI'VAL F1')MN, NATURAL OAT RIGHTS AND 01HER
A IOROCAPMN'9 EY 'MAATSOE`RR NAME I:MOM THAT MAY BF 041HIit OR Ll AidC PA,',11
OF LA.NO HE+REINA2OYC DESCRIBED, TOOETIPR V991 THE PERPETUAL RIGHT OF ORIIJJMO,
MIMING, ENLORINC A00 OPERA ))III, YNENEAINi AN, 5TCAPI ", IN AO P.EUO'ANO Ede SAME
FROM SAID WID OR ANY OTHER LANG. DIOLU&NIG Tilt! MONT SO YMIPSLX2 OF
DIRESTIONAL(Y DRILL AR) MOTE FROIA LANDS OMER MAN TH(M MCKINAMIE D88CPJ0001.
OIL OR GAS 7IEI19, TUNKIS ANO SHAFTS IPI'T3, 1HROUCH OR ACN053 RIC WI:SURPASE OF
.. L;- lAfIONEREIlUIOO "E- Dk' 98! 19( 9;- AilYa" TY@ iTTbLt" 9' JCH" 41 PIIVilY7C $EO- 'Cfl_Di(^:CTAR73C7:'t'-''
DP.ILLEO 'WELLS, NMHELS AND SH.tE7S UaOE.R AND 8FM?A!I OR OCfGNO TL ESTER19C
UNITS THEREON- AM TO PEOR111, O.E)LY'liiT, EOJIP, AI.11NDO)l RVATP., DEEPEN AND
OPB.RAIE All? SUCK 'WELLS OR MINES YRNUT, HOVINSR ME RION7 TD OP,ILL, NINE, STORE,
unwr.'A. OR OF vnR OIkOUfki TIE SURFN'E INY DIE 11PPEl; DIY) FLT OF me
500SURFACE OR ME LAPIO HVEDWSOVT OE'i0MED, A! R &SPFNED DY NE IRVINE COMP,ASIY
IPM DEED WORDED OCTOUER IA, 1177 N OIYOE $241;% PACE 997 OF OFFICIAL REgOPOS,
4110 THE. IRVINE INDUS MIA[, D ARV P' A OEt:T RECCIMeD OECEMAEF. 2D, 1172 Ili lOIA.
102.11. PAD$ 391 OP OFFICIAL RECORDS.
ALSO VCEPENU FROM RUT '00101 ItCLUD775 VIID111'i PANEL 1, A7 110'Ntl Cl, A MAP
.'ILEO IPM 6roX Da, PAGE 34 OF PARM MAPS, ui tiff. OF'RGE OF 18F, rliq«iry RECORCER CF
ORAI;' ;E COPITY. CALIFORNIA, ANY A110 ALL VIATER RIiH73 OR INMESTS IN 'HAUL! RIGIM
AVID ANY APIO ,0.L DEDMERMAL NONTS OR DIffiCCM IN OEOMICONAL RI,H'rS, Ai0 Lmrm
}IOW AMUNOID BY NAME AND 0MUM UR USED OYY OR7,Nr011 III CCNFIEr,0pi1 1401 OR
MM P.ESFECT to TIE WIN(A, 1MIETHEP. 31JCH 12ATE,R RIOHT;' SHALL EE RIPAPLAN, O`SRLMUO.
APPFOPMADYE, PERIIMATINO, PRIMRWOV$ OR COUMAI NAL, OUT 'INiOIA H13-41 R, ANY
RP "HT TO ENTZR UPOrI OE SURFACE OF IH L4:10 IN THE V.-OCISE OF SU4'N F'IONii, A$
°.'d3V',''40 OY Tr8 IWAKE OOMPAW IN )c.O REOOFOEI3 000ARE•R 1;, I' x3 6d UI 110EI,
PAGE INA CF OF3D;IAL RM ti
:.11.11. A`��- .YI`.. 11, ,141;,1,'11..111 mn
11 A -46
EXHIBIT B
Property Site Plan
11 A -47
pI
s `iNY
¢gip
2�
s
�b
EXHIBIT B
zz
v� ff
LO
P
(R
11 A -48
4o
Zr.
co
h
U�
�u n
i�v,
r
EXHIBIT C
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 Executive Director
of the Planning and Building Agency within thirty (30) days prior to the issuance of
a Final Certificate of Occupancy for the first unit of the Project. The Executive
Director of the Planning and Building Agency shall have sole discretion to approve
or deny said Final Design Plan for the Public Art. 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 approximately One Million Three
Hundred Twelve Thousand Dollars ($1,312,000.00) in total in connection with the
Public Art. The actual amount shall be determined at building plan check submittal.
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.
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).
All Public Art shall remain on the Property and may not be removed without the
approval of the Executive Director of the Planning and Building Agency.
10. Expenses not included in the Public Art Fee:
a. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.)
11 A -49
b. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
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.
11 A -50