HomeMy WebLinkAbout88-18 Approving Development Agreement for Metro Pointe Phases 2 and 3ORDINANCE NO. 88-18
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF COSTA MESA, CALIFORNIA, APPROVING THE
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
COSTA MESA AND A&R PARCEL 4 AND R&A PARCEL 5
FOR METRO POINTE PHASES 2 AND 3.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES ORDAIN AS
FOLLOWS:
SECTION 1. The City Council finds and declares as follows:
1. A public hearing has been held before this City Council
pursuant to the procedures described in Council
Resolution No. 88-53. At the hearing, the City Council
has considered testimony presented by the public and the
Planning Commission's recommendation regarding the
proposed Development Agreement between the City of Costa
Mesa and A&R Parcel 4, a California Limited Partnership,
and R&A Parcel 5, a General Partnership.
2. The Development Agreement between the City of Costa Mesa
and A&R Parcel 4 and R&A Parcel 5 is:
(a) Consistent with the objectives, policies, general
land uses and programs specified in the General Plan
and with the General Plan as a whole;
(b) Compatible with the uses authorized in, and the
regulations prescribed for, the zoning district in
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which the real property is and will be located; and
(c) Is in conformity with and will promote public
convenience, general welfare and good land use
practice.
3. The Development Agreement between the City of Costa Mesa
and A&R Parcel 4 and R&A Parcel 5 will not:
(a) Be detrimental to the health, safety and general
welfare; and
(b) Adversely affect the orderly development of property
or the preservation of property values.
4. The Development Agreement between the City of Costa Mesa
and A&R Parcel 4 and R&A Parcel 5 will promote and
encourage the development of the proposed project, and
will ensure the public benefits promised in the
Development Agreement, by providing stability and
certainty to the developer.
5. EIR 1020 was prepared for the project and was certified
on August 20, 1984; in accordance with Section 15162(a)
of the CEQA Guidelines, no additional EIR need be
prepared for the following reasons: there are no changes
in the project or in the circumstances under which the
project is to be undertaken which will require important
revisions to EIR 1020; and the Metro Pointe Phase 2 and
2
Phase 3 Initial Studies and Traffic Analyses, prepared
in connection with General Plan Amendment GP -82-3A and
Final Development Plans PA -88-03 and PA -88-72, have shown
that there is no new information of substantial
importance that was not known and could not have been
known at the time the EIR was certified.
SECTION 2. The City Council hereby approves, adopts and
enters into the Development Agreement in the form attached hereto
and incorporates the Agreement herein by this reference.
Upon execution of the Development Agreement by all parties,
the City Clerk is directed to record the Development Agreement
pursuant to City of Costa Mesa Development Agreement Procedures and
Requirements.
SECTION 3. This Ordinance shall take effect and be in full
force thirty (30) days from and after the passage thereof, and
prior to the expiration of fifteen (15) days from its passage shall
be published once in the ORANGE COAST DAILY PILOT, a newspaper of
general circulation, printed and published in the City of Costa
Mesa or, in the alternative, the City Clerk may cause to be
published a summary.of this Ordinance and a certified copy of the
text of this Ordinance shall be posted in the office of the City
Clerk five (5) days prior to the date of adoption of this
Ordinance, and within fifteen (15) days after adoption, the City
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Clerk shall cause to be published the aforementioned summary and
shall post in the office of the City Clerk a certified copy of this
Ordinance together with the names of the members of the City
Council voting for and against the same.
PASSED AND ADOPTED this 7th day of November, 1988.
ATTEST:
G-1
City Clerk of the City of
Costa Mesa
APPROVED AS TO FORM:
City A orney
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May of the City of Costa Mesa
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, EILEEN P. PHINNEY, City Clerk and ex -officio Clerk of the
City Council of the City of Costa Mesa, hereby certify that the
above and ,foregoing Ordinance No. 88-18 was introduced and
considered section by section at a special and adjourned regular
meeting of said City Council held on the 31st day of October, 1988,
and thereafter passed and adopted as a whole at a regular meeting
of said City Council held on the 7th day of November, 1988, by the
following roll call vote:
AYES: COUNCIL MEMBERS: /� �/ A� 1
4UJU-d%7
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS: 17 x�
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
he Seal of the City of Costa Mesa this day of
1988.
-, City Clerk and ex -officio Cler
of the City Council of the Ci
of Costa Mesa
5
Recording Requested by: y(LTIM1
Eileen P. Phinney, City Clerk
City of Costa Mesa
P. O. Box 1200
Costa Mesa, California 92628-1200
and when recorded, please return
to City Clerk Eileen P. Phinney
EXEMF
C18
OFORANGE COUNTY. CAUFOORRNIA
:0SEC - 81988
'!:; . Q. vj'w'z moo" ER
Space Above This Line For Recorders Use
MRO POINTE DEVELOPMENT AGREEMENT
88-639006
TABLE OF CONTENTS
METRO POINTE DEVELOPMENT AGREEMENT
Page
I. RECITALS OF PREMISES, PURPOSE, AND INTENT...........
1
1.01
The Property ..................................
1
1.02
Description of the Project ....................
2
1.03
Public Objectives Served by the Agreement.....
3
1.03(a) Intent of the Parties ................
3
1.03(b) Comprehensive Planning Objectives....
4
1.03(c) Public Benefits in Return for
Assurance of Completion.. ..... o ......
4
1.04
Objectives of Owner ...........................
5
1.04(a) Risks and Uncertainties that Would
Deter or Prevent Commitment'to the
Project Absent this Agreement........
5
1.04(b) Assurances that Would Remove
Disincentives to Carry Out the
Project .............................
6
1.05
Reasonable Assurances of Completion...........
6
1.06
Enabling Statute ..............................
7
1.07
City Procedures ................................
7
1.08
Planning Commission/City Council
Hearings... o ....... o ........ o .................
7
1.09
Environmental Review.... ......................
8
II. AGREEMENT AND ASSURANCES ............................
9
2.01
Agreement and Assurances on the Part of
Owner.... o .......
9
2.01(a) Completion of the Project...........
9
88-639006
2.01(b)
Public Benefits .....................
10
2.02 Agreement and Assurances on the Part of City..
10
2.02(a)
Entitlement to Development..........
11
2.02(b)
Subsequent Review ...................
11
2.02(c)
Justifiable Reliance ................
12
2.02(d)
Finding of Consistency With
Laws in Force... o ............... o ....
12
2.02(e)
Integrated Project ..................
13
2.03 Regulations Governing The Development of
the Project ...................................
13
2.03(a)
Governing Policies... ... ....
13
(i) Permitted uses... .............
13
(ii) Density and Intensity.........
13
(iii) Maximum Height and Size of
Buildings.....................
13
(iv) Increase in Intensity or
Other Substantial Change......
14
(v) Density, Intensity, Height
and Size Decreases............
14
(vi) Timing of Development.........
15
(vii) Reservations and Dedication
:of Lands for Public Purposes..
15
(viii) Moratoria, Phasing of
Development. ... o ..............
15
(ix) Development Exactions.........
16
2.03(b)
Regulation of Development....:.......
17
(i) In General., .........
17
Vested Right., ... o ............
17
2.03(c)
Limitations, Reservations and
Exceptions ...........................
18
88-6390%
(i) Future Regulations............ 18
(ii) State and Federal Laws and
Regulations ..... ........ ..:... 18
(iii) Public Health and Safety......
19
(iv) Building Improvement Standards.
20
(v) Full Extent of Law............
20
III. GENERAL PROVISION ..................................
20
3.01
Effective Date of Agreement ..................
21
3.02
Duration of Agreement ........................
21
3.03
Implementation ...............................
21
3.04
Single Agreement .............................
21
3.05
Periodic Review ..............................
21
3.06
Relationship of Parties ......................
23
3.07
Hold Harmless., ........ o..o ..................
23
3.08.
Notices., .... o .... o ........ o ............. o ...
24
3.09
Severability .................................
24
3.10
Time of Essence.............. ...............
25
3.11
Modification .................................
25
3.12
Waiver.....-, ... ...... 6 ...
26
3.13
Successors and Assigns......... ..............
26
EXHIBITS
•
88=639006
METRO POINTE
DEVELOPMENT AGREEMENT
THIS AGREEMENT is executed this 3 O -i-h day of NO V C w1,
19819, by and between the CITY OF COSTA MESA, ("City"), and A
& R PARCEL FOUR, a California limited partnership, and R & A,
PARCEL FIVE, a general partnership (hereinafter referred to
as "Owner"). Unless otherwise indicated herein, all exhibits
and attachments referred to are incorporated by reference
into the Agreement.
I. RECITALS OF PREMISES, PURPOSE, AND INTENT.
1.01 The Property.
Owner has a legal interest in certain real property
which is comprised of approximately 22.15 undeveloped acres
(the "Property") in a triangular area bounded by the San
Diego Freeway (I-405), South Coast Drive, and Bear Street, in
the City of Costa Mesa, County of Orange, State of
California, more particularly described as follows: South
Westerly portion of the 900 block of South Coast Drive, City
of Costa Mesa, County of Orange, State of California - Parcel
No's 4 and 5 of Parcel Map 84-389, as shown on the Location
Map which is attached hereto as Exhibit "A" and by this
reference incorporated herein and more particularly shown on
the Phase 2 Site Map and Phase 3 Site Map which are attached
hereto as Exhibits "A-1" and "A-211, respectively, and by this
reference incorporated herein.
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88-639006 t
1.02 Description of the Project. ,
Owner seeks to develop the Property as a planned
commercial development in accordance with the development
approvals previously approved or granted by City in
connection with the development of the Property,
("Development Approvals") as more particularly described in
Exhibit "B" attached hereto and by this reference
incorporated herein, which are consistent with the City's
General Plan (the "General Plan"). Pursuant to General Plan
Amendment GP -82-3A Revised ("GP -82-3A") the development of a
master planned project was approved in seven phases which
have been combined as follows: The initial phase of the
development of the master planned project ("Phase 111), which
has been completed, encompassed phase I as described in GP -
82 -3A; additional phases of the development of the master
planned project which are the subject of this Agreement
consist of (i) a second phase of development of the Master
Planned project ("Phase 211), which will encompass phases VI
and a portion of VII as described in GP -82-3A, and (ii) a
third phase of the development of the Property ("Phase 311),
which will encompass phases II, III, V and a portion of VII
as described in GP -82-3A. "Phase 2" and "Phase 3" constitute
the "Project." A future phase ("Phase 411), not a part of
this Project, will encompass phase IV as described in GP -82-
3A and may include a 500 room hotel and approximately 120,000
square feet of commercial uses; Phase 4 is not a subject of
this Development Agreement. The major components of Phase 2
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are set forth in Exhibit "C" attached hereto and by this
reference incorporated herein. The major components of Phase
3 are set forth in 'Exhibit "D" attached hereto and by this
reference incorporated herein.
1.03 Public Objectives Served by the Agreement.
In accordance with the legislative findings set forth in
Government Code Section 65864, City wishes to attain certain
public objectives that will be furthered by this Agreement.
These objectives are set forth in subsections 1.03(a),
1.03(b) and 1.03(c) below.
1.03(a) Intent of the' -Parties.
The Parties desire to enter into this
Agreement in conformity with the applicable provisions of the
Government Code, the Costa Mesa Municipal Code and City
policies, rules and regulations to achieve the development of
commercial land uses permitted under Exhibit "C" and Exhibit
"D" hereto and to provide for public services, public uses,
and urban infrastructure pursuant to Section 1.03(b) hereof
and Exhibit "E" hereto, all in the promotion of the public
health, safety, and general welfare of -the City of Costa
Mesa. It is the intent of the parties that on execution of
this Agreement, Owner will be bound to provide the public
benefits referred to in Section 2.01(b) hereof and more
particularly described in Exhibit "E" hereto and that Owner
shall have the right to complete -the Project described in
Section 1.02 hereof.
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88-639005
1.03(b) -Comprehensive Planning Objectives.
City wishes to facilitate the implementation
of the General Plan of the City of Costa Mesa. The
completion of the Project, a major development within the
City, will provide a long term sourcez of employment service
opportunities for the residents of the City in furtherance of
the comprehensive planning objectives contained within the
General Plan including the following objectives:
(1) Objective IV -A: Establish and maintain a
balance of land uses;
(2) Objective VI -E: Ensure integration of
utility system considerations into land
use planning and development processes;
(3) Objective VI -C:. Ensure the long-term
productivity and viability of the
community's economic base.
1.03(c) Public Benefits in Return for Assurance of
Completion.
The means of attaining the aforementioned ob-
jectives and the public benefits (See Exhibit "E" attached
hereto and by this reference incorporated herein) to be
received as a result of the development of the Project
through this Agreement include the following,_among others:
(1) Development of a major business center
within the City. of Costa Mesa pro-
viding a long-term source of employment
opportunities;
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88-639006
(2) Development of a quality project which
will enhance the image and stature of the
City of Costa Mesa.
(3) Owner's participation in a housing plan
described in Exhibit "Elf.
(4) Owner's participation in a fire station
described in Exhibit "E".
(5) Owner's participation in the provision of
a traffic improvement program described
in Exhibit 11E.11
1.04 Objectives of Owner
1.04(a) Risks and Uncertainties that Would Deter or
Prevent Commitment to the Project Absent this
Agreement.
The following are some of the development
risks and uncertainties that would, in the absence of this
Agreement, deter and discourage Owner from making a long-term
commitment to the implementation of the Project: The costs
of the public benefits to be provided by Owner, directly or
indirectly, might be incurred in advance of the completion of
the private income-producing components of the Project which
would provide the economic return required to justify and
offset the total dollar investment in providing those public
benefits. That investment would be at risk in that, absent
this Agreement, the Owner would have no assurance that the
private income-producing components could ever -be built.
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88-639006,
1.04(b) Assurances that Would Remove Disincentives to
Carry Out the Project. .
Assurances are required to offset or remove
thedisincentives to the completion of the Project created by
the potential risk possibilities cited in Section 1.04(a)
above. These assurances include assurances regarding the
ordinances, regulations and rules that will be applicable to
the development of the Property, including, but not limited
tothose relating to timing, density and intensity of
development and development exactions that will justify the
undertakings and commitments of Owner.
1.05 Reasonable Assurances of Completion.
The entire Project has been designed to be carried out
in an environmentally responsible manner with the provision
of major public benefits, including those set forth in
Section 1.03 above. Development of the Project shall be in
accordance with the Development Approvals, land -use
ordinances, resolutions, policies and regulations adopted by
the City Council of the City and the Planning Commission of
the City which govern the permitted uses of land, the density
and intensity of use, the design, improvement and
construction standards (other than Uniform Codes) applicable
to the development of the Project and requirements for
dedication •of property or payment of fees and exactions
(hereinafter „Land Use Regulations") in effect on the date of
execution of this Agreement (hereinafter "Existing Land Use
Regulations"). The development of the Project will also
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provide the public benefits at an, earlier stage in the
development of the Project than could otherwise be required
under Existing Land Use Regulations.
1.06 Enabling Statute.
Government Code Sections 65864 et seq. authorize and
provide that a Development Agreement is a means by which to
obtain such assurance of completion as summarized in Section
1.05 above.
1.07 City Procedures.
Pursuant to the authorization set forth in California
Government Code Sections" '65864 et seq., City adopted
Resolution No. 88-53 on July 19, 1988, establishing
procedures and requirements for consideration of Development
Agreements. In accordance with such rules and regulations,
City has undertaken the necessary proceedings, has found and
determined that this Agreement is consistent with the intent
of the City of Costa Mesa General Plan and with the
Development Approvals, and has adopted Ordinance No. 88-18
approving this Agreement which ordinance becomes effective on
December 8, 1988. All conditions of the Development
Approvals shall remain in effect except to the extent
modified by Exhibit "E" hereto. -
1.08 Planning Commission/City Council Hearings.
On September 26, 1988, the Planning Commission of the
City of Costa Mesa, after giving due notice pursuant to
Government Code Sections 65854, 65854.5 and. 65856, held a
public hearing on Owner's application for approval of this
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88-639006
Agreement. On October 31, 1988, the City Council of the City
of Costa Mesa, after providing public notice as required by
law, also held a public hearing to consider Owner's
application for this Agreement.
1.09 Environmental Review.
In preparing and adopting this Agreement, the General
Plan Amendment GP -82-3A, Zoning Ordinance Amendment 84-36,
Parcel Map No. S-84-389, Final Development Plan Phase 1 which
was approved as Zone Exception Permit ZE-84-187 and Zone
Exception Permit ZE-84-193, Final Development Plan PA -88-03
(Phase 2), Final Development Plan PA -88-72 (Phase 3), Vesting
Tentative Map No. 13452 and Vesting Tentative Map No. 13470,
City considered the health, safety and welfare of existing
and future residents and populations of the City and prepared
in this regard Environmental Impact Report 1020, certified on
August 20, 1984, as well as extensive traffic impact reports
including Metro Pointe Phase 2 Traffic Analysis, Metro Pointe
Phase 3 Traffic Analysis and other studies. The City Council
has found that Environmental Impact Report No. 1020 and Metro
Point Phase 2 and Phase 3 Traffic Analyses prepared in
connection with General Plan Amendment GP -82-3A and Final
Development Plans PA -88-03 (Phase 2) and PA -88-72 (Phase 3)
constitute adequate environmental documentation for the
Project and for this Agreement based on the following: (1)
the Project incorporates mitigation measures identified in
the EIR and Traffic Analyses, and (2) the Initial Studies for
the Phase 2 and Phase 3 Final Development Plans disclosed no
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substantial changes in the Project or the circumstances under
which it will be undertaken and no new information of
substantial importance to the Project has become available.
After making appropriate findings, the City Council .adopted
Resolutions Nos. 88-13 and 88-65, certifying the environ-
mental Initial Studies for the Project in compliance with
CEQA, on February 18, 1988, and August 15, 1988,
respectively.
II. AGREEMENT AND ASSURANCES
2.01 Agreement and Assurances on the Part of Owner.
In consideration of the premises, purposes, and inten-
tions set forth in Section I (Sections 1.01 -1.06) -above, and
in consideration of the assurances for completion of. the
Project pursuant to the terms and conditions of City assur-
ances set forth in Section 2.02 below, Owner, in entering
into this Development Agreement, hereby agrees and acknowl-
edges that:
2.01(a) Completion of the Project.
Owner, in accordance with its sound business
judgment, agrees to carry out the Project as described in the
Development Approvals in accordance with the Regulations
Governing the Development of the Project as set forth in
Section 1.02, including, all major components of Phase 2 as
described in Exhibit "C" and all major components of Phase 3
as described in Exhibit ''D", provided, however, that in the
sole discretion of Owner the densities and intensities of
uses and heights and sizes of .buildings may be less than the
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88-639006
maximums specified in this Agreement as set forth in Section
2.03(a)(v). Building locations may not be substantially
changed without prior approval of the Development Services
Director. Owner represents that it intends to pursue
development of the Project in accordance with this Agreement
with reasonable diligence as it deems appropriate in its
sound business judgment, in light of market conditions, and
agrees that it shall not unreasonably delay pursuing such
development of the Project.
2.01(b) Public Benefits.
The public benefits to be provided by Owner
are as set forth in Exhibit "E." Owner agrees to provide all
such public benefits and to exercise due diligence to
complete, in a timely manner, all things necessary on its
part to provide those benefits. This promise by Owner
constitutes the chief consideration for City's entering into
this Development Agreement with Owner.
2.02 Agreement and Assurances on the Part of City.
In order to -effectuate the premises, purposes and
intentions set forth in Section I (Sections 1.01-1.06) above,
and as an inducement for Owner to obligate itself to carry
out the covenants and conditions set forth in the preceding
Section 2.01 of this Agreement, City hereby agrees that Owner
will be permitted to carry out and complete the entire
Project, as specifically described and set forth in
subsection 1.021 -,in accordance with the Regulations Governing
the Development of the Project as set forth in Section 2.03,
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while this Agreement is in effect. In furtherance of such
agreement and assurance, and pursuant to the authority and
provisions set forth in California Government Code Sections
65864 et seq., City, in entering into this Development
Agreement, hereby agrees and acknowledges as follows:
2.02(a) Entitlement to Develop.
City agrees that the Owner has the right,
while this Agreement is in effect, to develop all phases of
the Project as set forth and described in Section 1.02 and
the Development Approvals in accordance with the Regulations
Governing the Development ..and finds the Project consistent
with the City of Costa Mesa General Plan and the applicable
Existing Land Use Regulations. With respect to Government
Code Section 65865.2, and as more fully set forth in Section
2.03, the development regulations governing subsequent
discretionary actions are:
(1) The Development Approvals, and
(2) The Existing Land Use Regulations.
As provided in Government Code Section. 65865.2, any subse-
quent discretionary actions by City or any conditions, terms,
restrictions and requirements for such discretionary actions
by City, shall not prevent development of the Project for the
uses and to the maximum density or intensity of develop-
ment set forth in this Agreement and the existing development
approvals and land use regulations.
2.02(b) Subsequent Review.
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88-639006
All subsequent review of development of the
Project shall be subject to the terms and conditions of this
Agreement and the provisions of Government Code Sections
65865.4 and 65866. As provided in Government Code Section
65866, the rules, regulations, and official policies govern-
ing permitted uses of the land, density, design, improvement,
and construction applicable to development of the Project
shall be those rules, regulations, and official policies in
force as of the date of execution of this Agreement, except
as specifically set forth in Section 2.03.
2.02(c) Justifiable Reliance.
City acknowledges that, in investing money and
planning effort in and to the Project, in contributing the
public benefits hereunder, and in undertaking completion of
the Project, Owner will be doing so in reliance upon City's
covenants contained in this Agreement and upon the
enforceability of this Agreement, and City agrees that Owner
may and will be reasonably and justifiably relying upon
City's covenants contained in this Development Agreement and
the enforceability hereof in so doing.
2.02(d) Finding of Consistency with Laws in Force.
The City Council of City has found, based upon
all information made available to the City prior to or
concurrently with the execution of this Agreement, that the
Agreement is consistent with the General Plan of City and all
other applicable plans, rules, regulations,- policies and
ordinances of City.
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2.02(e) Integrated Project.
City acknowledges by executing this Agreement
-for the Project as a whole, that the Project is and shall be
considered a single, integrated development project, and that
each phase of the Project is dependent upon the completion
and occupancy of the other phase, and that the viability of
each phase of the Project is and shall be dependent upon the
completion and occupancy of the other phase and the full
performance of this Agreement.
2.03 Regulations Governing The Development of the Project
2.03(a) Governing Policies
The following policies set forth in this
Section 2.03(a) are consistent with and/or are provided for
in the General Plan of the City, the Existing Land Use
Regulations, and the Development Approvals:.
(i) Permitted Uses.
The uses permitted hereunder in accordance with the
Existing Land Use Ordinances are as set forth in the
Development Approvals and include, without. limitation,
commercial uses including conventional retail uses,
business, professional and administrative offices,
restaurant uses and parking structures.
(ii) Density and Intensity.
The density and intensity of the commercial uses
shall be as set forth in Exhibit "C" and Exhibit "D."
Maximum Height and Size of Buildings.
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88-639006.
The maximum height of commercial, office or other
non-residential buildings within the Project is as set
forth in Exhibit "C" and Exhibit "D". The maximum size
of any such building shall be as set forth in Exhibit
"C" and Exhibit "D". The maximum height of any parking
structure within the Project as set forth in Exhibit
and Exhibit "D". The -maximum size of any such parking
structure is as set forth in Exhibit C and Exhibit D.
(iv) Increase in Intensity or Other Substantial
Change.
Any application by Owner for an increase in.
the intensity of the Project, as compared with what has
been approved as of the time this ..Agreement is executed,,
or for any substantial change in the Project other than
a decrease as provided for in paragraph 2.03(a)(v) shall
be reviewed under and shall be subject to the laws,
policies and regulations then in force, regardless of
whether or not such laws, policies and regulations are
consistent with the terms of this Agreement.
(v) Density, Intensity, Height and Size Decreases.
The densities and intensities of uses and the
heights and sizes of buildings specified in this
Agreement are intended by City and Owner.to be maximums
and nothing herein shall be construed as a covenant or
promise by Owner to construct the major components of
Phase 2 or Phase 3 to their maximum permitted densities,
intensities, heights, and/or sizes. City and Owner
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88-639006
agree that Owner in its sole discretion may proceed with
development of the Project at densities, intensities,
heights and sizes which are less than the maximum
provided for under this Agreement.
(vi) Timing of Development.
The parties acknowledge that the most efficient and
economic development of the Project depends upon
numerous factors such as market orientation and demand, -
interest rates, competition and similar factors and that
generally it will be most economically beneficial to the
ultimate purchasers to have the rate of development
determined by Owner. Accordingly, the timing,
sequencing and phasing of Development shall be as
determined by Owner in its sole subjective business
judgment and discretion except that the rate of
development shall be in accordance with the Existing
Land Use Regulations and the other terms and conditions
of this Agreement, subject to the Reservations of
Authority provided in Section 2.03(c).
(vii) Reservations and Dedication of Lands For
Public Purposes.
In accordance with the Development Approvals Owner
has undertaken to dedicate certain lands and construct
and convey to the public certain public facilities.
(viii) Moratoria; Phasing of Development.
The parties acknowledge and agree that the
Governing Policies set forth in this Section 2.03
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88-639006
provide for the phasing of the Development of the
Project and that except as expressly provided in this
Section 2.03, no moratorium, ordinance, resolution, or
other land use regulation or limitation on the
conditioning, rate, timing or sequencing of the
development. of the Project or any portion thereof shall
apply to or govern the development of the Project during
the term hereof whether affecting parcel or subdivision
maps (whether tentative, vesting tentative, or final),
building permits, occupancy permits or other
entitlements to use issued or granted by City.
(ix) Development Exactions.
In addition to and not in limitation of the
foregoing, or the provisions of Section 2.03, except and
subject to the Reservations of Authority, City shall not
levy or require:
(a) any further development exactions except
those provided for in Section 2.03(c) or which are
provided for or required by the Existing Land Use
Regulations (including, but not limited to the existing
General Plan and the Development Approvals), which
include, but are not limited to, development exactions
which may be required by City in accordance with its
current subdivision standards and policies (including,
without limitation, as to the amount, and method of
payment), excluding processing and permit -fees; or
-16-
(b) any further traffic -related development
exactions.
This shall not preclude the formation of a Mello -Roos
Community Facilities District or other benefit
assessment district. In addition, this Agreement does
not apply to any exaction that is levied by any other
public agency, utility, district or joint powers
authority, including but not limited to the San Joaquin
Hills Transportation Corridor Agency, Newport -Mesa
Unified School District, Costa Mesa Sanitary District,
and Mesa Consolidated:Water District.
2.03(b) Regulation of Development.
(i) In General.
Notwithstanding any future action of City,
whether by ordinance, resolution, initiative or
otherwise, during the term of this Agreement, the rules,
regulations and official policies applicable to and
governing the Development of the Project shall be the
Existing Land Use Regulations together with amendments
and additions adopted pursuant to the Reservations of
Authority of City provided in Section.2.03(c).
(ii) Vested Right.
In developing the Project, Owner is provided
and assured the vested right to require that the Land
Use Regulations of City applicable to and governing the
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88-639006
,Development of,the Project during the term hereof shall
be as provided in this Section 2.03(b).
2.03(c) Limitations, Reservations and Exceptions.
Notwithstanding anything to the contrary set
forth in Section 2.03(a) or 2.03(b) hereinabove, in addition
to the Existing. Land Use Regulations, only the following land
use regulations adopted by City hereafter shall apply to and
govern the Development of the Project ("Reservations of
Authority"):
(i) Future Regulations.
Future City land use regulations which are not
in conflict with the Governing Policies or which,
are in conflict with the Governing Policies and the
application of which to the development of the
Project has been consented to in writing by Owner;
(ii) State and Federal Laws and Regulations.
Existing and future State and Federal laws and
regulations, together with any City Land Use
Regulations, programs and actions, or inaction,
which are reasonably (taking into consideration,
among other -things, the assurances provided to
Owner hereunder) adopted or undertaken by City in
order to comply with State and Federal laws and
regulations; provided, that in the event that State
or Federal laws and regulations prevent or preclude
compliance with one or more provisions of this
Agreement, such provisions shall be modified or
-is-
88-639006
suspended as may be necessary to comply with such
State and Federal. laws and regulations, in which
event this Agreement shall remain in full force and
effect to the extent that it is not inconsistent
with such laws and regulations and that performance
of the remaining provisions would not be
inconsistent with the intent and purposes of this
Agreement;
(iii) Public Health and Safety.
Land Use Regulations which are adopted by City,
which may be in.conflict with the Governing Policies and
the application of which to the Development of the
Project is reasonably necessary, in order to protect the
public health and safety taking into consideration:
(a) .the importance of the public interest
that the regulation is intended to protect; the extent
to which such regulation substantially impairs the
rights of Owner under Section 2.03(a) and 2.03(b) and is
(i) to be unreasonably borne only by Owner and ,the
Project rather than being borne by other lands and
interests, or (ii) unreasonable taking into
consideration other reasonable, and practicable
alternatives; and
(b) whether the concerns which are the
subject of proposed Land Use Regulation were considered
and/or provided for in the adoption of the Existing Land
Use Regulations.
-19-
88-639006
The burden of proof that a Land Use Regulation
adopted pursuant to this Section 2.03(c)(iii) is
reasonable as applied to the Project shall be on City.
The greater the severity of such Land Use Regulation's
adverse impact on Owner, the greater the showing
required of City that the' concerns addressed are
legitimate and that such Land Use Regulation is
reasonable;
(iv). Building and Improvement Standards.
Present and future Building and Improvement
Standards, except that (taking into consideration the
assurances to Owner in this Section 2.03) any future
amendment thereto which significantly reduces the amount
of land within the Project which can be utilized for
structures and improvements or significantly increases
the amount of open space within the Project under the
Development Approvals shall not be considered a
provision of any of the Building and Improvement
Standards included within the exception provided by this
Paragraph.2.03(c)(iv) and shall not apply to and govern
the development of the Project unless it complies with
another exception under this Section 2.03(c); and,
(v) Full Extent of Law.
The parties acknowledge and agree that City is
restricted in its authority to limit its police power by
contract -,and that the foregoing, limitations,
reservations and exceptions are intended to reserve to
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88-639006
City all of its police power which cannot be so limited.
Notwithstanding the foregoing, this Agreement shall be
construed, contrary to its stated terms if necessary, to
reserve to City all such power and authority which
cannot be restricted by contract.
III. GENERAL PROVISION.
3.01 Effective Date of Agreement.
This agreement shall be effective after its execution by
a duly authorized representative of both parties and the
recording of this Agreement pursuant to Government Code
Section 65868.5.
3.02 Duration of Agreement.
This Agreement shall remain in effect for a term of
twenty (20) years, unless otherwise extended by the parties,
subject to earlier termination upon the completion,
performance and discharge of all obligations hereunder.
3.03 Implementation.
The Owner represents that it intends to pursue develop-
ment of the major components of the Project with reasonable
diligence as it deems appropriate in its sound business
judgment, in light of market conditions, and other similar
factors influencing a business decision to commence
development.
3.04 Single Agreement.
-21-
86-639006 -
City and Owner agree there shall be no more than one
Development Agreement covering Property in effect at the same
time.
3.05 Periodic Review.
City and Owner shall review the parties' respective
performance of this Agreement as provided for in Government
Code Section 65865.1, the City's Development Agreement
Procedures and Requirements and as further provided in this
section as follows: The City's Planning Commission shall
review the Agreement at least every twelve (12) months from
the date the Agreement is entered into until expiration of
the term of the Agreement. The City's Director of
Development Services shall give Owner at least thirty (30)
days advance notice of the time at which the Planning
Commission will review the Agreement. The Planning
Commission shall hold a public hearing and shall make a
report and recommendation to the City Council of Owner's
demonstration of good faith compliance with the terms of the
Agreement. If, as a result of such periodic review, the
Planning Commission finds and determines, on the basis of
substantial evidence, that Owner has not complied in good
faith with the terms or conditions of the Agreement, the
Planning Commission may recommend to the City Council
commencement of proceedings to enforce, modify, or terminate
the Agreement. After the Planning .Commission has made its
recommendation, a public hearing shall be set before the City
Council. If the City Council finds and determines on the
-22-
88-639006
basis of substantial evidence that Owner has complied in good
faith with the terms and conditions of the Agreement during
the period under review, the review for that period is
concluded. -If the City Council finds and determines on the
basis of substantial evidence that Owner has not complied in
good faith with the terms and conditions of the Agreement
during the period under review, the City Council may modify
or terminate the Agreement, as set forth in the City's
Development Agreement Procedures and Requirements.
3.06 Relationship of Parties.
It is understood that the contractual relationship
between the parties created hereunder is that Owner is an
independent contractor and not an agent of the City.
3.07 Hold Harmless.
In the event any person not a party to this Agreement
shall institute an action against the City concerning the
validity, interpretation, or enforceability of this
Agreement, City may, at its sole option; elect to tender the
defense of such action to Owner. In that event Owner shall
accept such a tender and shall protect, defend, indemnify,
and hold City harmless from any and all claims, actions,
suits, liabilities and judgments, including all defense and
investigation expenses and attorneys' fees, incurred in the
defense. of such matter. In the event of any substantial
conflict of interest between Owner and City, City shall be
entitled to separate and independent legal counsel acceptable
-23-
OB -639006
both to Owner and City, and Owner shall pay and bear the cost
of such separate legal counsel. City agrees that it shall
fully cooperate with Owner in the defense of such matter and
shall take all reasonable steps necessary to assist Owner in
defending such action. In the event City elects not to
tender the defense of such matter to Owner, City shall bear
its own costs and expenses incurred in the defense of such
matter.
3.08 Notices.
All notice under this Agreement shall be given to the
following representatives of the parties at the addresses
indicated below:
If to City: City of Costa Mesa
77 Fair Drive
Post Office Box 1200
Costa Mesa, CA 92628-1200
Attn: City Manager
If to Owner: A & R PARCEL 4, R & A PARCEL 5
c/o Arnel Development
950 South Coast Drive
Costa Mesa, CA 92626
Attn: President of Arnel
Either party may change its address by giving notice in
writing to the other party.
3.09 Severability.
If any provision of this Agreement should be determined
by a court to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered
unenforceable according to the terms of any law which becomes
effective after the date of this Agreement, either party to
-24-
88-639005
the Agreement may elect to declare subject to this Section
that, the Agreement shall become null and void as to all
obligations then remaining unperformed and the Agreement
shall be terminated, unless extended by the parties by mutual
consent. If either party so elects to declare a termination
of the Agreement, the other party -may contest the election
and declaration in an appropriate court of law within thirty
(30) days of receiving a "Notice of Termination" from the
party electing termination. If no action is filed within the
thirty (30) day time period, the Agreement shall be deemed
terminated ,as of that date.,, In the event that a "Notice of
Termination" is contested through judicial review, the burden
of proof shall be on the party alleging termination to
demonstrate that the provision of the Agreement previously
determined to be invalid or unenforceable materially affects
the consideration for the entire Agreement as set forth in
the Agreement.
The above provisions are subject to meeting the notice
requirements of Government Code Section 65868.
3.10 Time of Essence.
Time is of the essence for each provision of this Agree-
ment of which time is an element.
3.11 Modification.
Except as otherwise provided in Section 3.05, no
modification, amendment, cancellation or other change in this
Agreement or any..provisions hereof shall be effective for any
purpose unless specifically set forth in a writing signed by
-25-
88-639006.
duly authorized representatives of both parties and referring
expressly to this Section.
This Agreement may be amended, cancelled or modified in
whole or in part in the manner set forth in Government Code
Sections 65867, 658,67.5 and 65868 and City's Development
Agreement Procedures and Requirements.
3.12 Waiver.
No waiver of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized
representative of the party against whom enforcement of a
waiver is sought and referring expressly to this Section. No
waiver of any right or remedy in respect of any occurrence or
event shall be deemed a waiver of any right or remedy in
respect of any other occurrence or event.
3.13 Successors and Assigns.
The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors and assigns. Upon written notification to City
thirty (30) days in advance of assignment, Owner may assign
this Agreement in whole or in part to any Iperson, partner,
joint venture or other entity ("Assignee") that agrees to be
bound hereby, provided said- Assignee provides to City
certification from a financial institution or a certified
public accountant that Assignee has a market value net worth
of a minimum of Fifteen Million Dollars ($15,000,000.00).
Any successor in interest to City shall be. subject to the
-26-
88-639006
provisions set forth in Government Code Sections 65865.4 and
65868.5.
IN WITNESS WHEREOF, the parties have each executed this
Agreement on the date first above written.
CITY TA ME A
By. ,
OF THE CITY OF
88-639006
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On this 5th day of December, 1988, before me, Florine T.
Reichle, Notary Public in and for the County of Orange,
State of California, personally appeared Donn Hall, Mayor of
the City of Costa Mesa, a public agency, and Eileen P.
Phinney, City Clerk of the City of Costa Mesa, a public
agency, and known to me to be the persons who executed the
within instrument on behalf of said public agency and
acknowledged to me that the public agency executed same.
WITNESS my hand and official seal.
OFFICIAL SEAL
FLORINE T. REICHLE ' V.
-. NOTARY PUBLIC CALIFURNIA; Notary Public In and for
PRINCIPAL OFFICE IN t
■ ORANGE C:OUNrY ■ said County and State
My Commisslom Expires !uy 17.1992 a
ry i ker
Sec -r ary
R & A, \PMCP3T-\JIVE, a cLeneral
By:
9�NU. Argyros
General Partn
is Ge ral Partner
88-539006
STATE OF CALIFORNIA
ss.
COUNTY OF
On the a�L odaY of ,�ai�i,?8�2." , 1988, before
me, the undersigned, a NotaryPublic, in and for said State
and County, personally appeared GEORGE L. ARGYROS, personally
known to me (or proved to me on the basis of satisfactory
evidence) to be the President of AMER, INC., a California
corporation, known to me to be the person who executed the
within instrument on behalf of said corporation, said
corporation being known to me to be the general partner of
A & R PARCEL FOUR, a California limited partnership, and
acknowledged to me that said corporation executed the same as
such partner pursuant to its bylaws or a resolution of its
board of directors and that such limited partnership executed
the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
BE J. FAZEKAS
NODkRYY PUBLIC CALIFORNIA
ORANGE COUNTY
MY CaaMWm Expires OCL 23,1992
STATE OF CALIFORNIA )
ss.
COUNTY OF
Notary XiblicT
On the y6�0day of zro�/x r3e'e , 1988, before
me, the undersigned, a Notary Public, in an�Ic�for said State
and County, personally appeared HARRY S. RINKER, personally
known to me (or proved to me on the basis of satisfactory
evidence) to be the Secretary of ARKER, INC., a California
corporation, known to me to be the person who executed the
within instrument on behalf of said corporation, said
corporation being known to me to be the general partner of
A & R PARCEL FOUR, a California limited partnership, and
acknowledged to me that said corporation executed the same as
such partner pursuant to its by]�Aws or a resolution of its
board of directors and that such limited partnership executed
the same.
WITNESS my hand and official seal.
--------------------
OFFICIAL SEAL
EM eErm I mAKAC
JEERM NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY
My Commission Expires OCL 23,1992
M / I
88-639006
STATE OF CALIFORNIA )
).ss.
COUNTY OF be-4AK-Ir- )
On the day of ' evE� ,� , 1988, before
me, the undersigned, a Notary Public in an for said State
and County, personally appeared GEORGE L. ARGYROS, personally
known to me (or proved to me on the basis of satisfactory
evidence) to be one of the general partners of R a A, PARCEL
FIVE, a general partnership, the general partnership that
executed the within instrument, and acknowledged that such
partnership executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
BETTE J. FAZEKAS
NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY
My Commission Expires Oct. 23, 1992
STATE OF CALIFORNIA
) ss.
COUNTY OF 4- fu G'C )
��/il���� 1988, before
On the ��day of _
me, the undersigned, a Notary Public in an for said State
and County, personally appeared HARRY S. RINKER, personally
known to me (or proved to me on the basis of satisfactory
evidence) to be one of the general partners of R a A, PARCEL
FIVE, a general partnership, the general partnership that
executed the within instrument, and acknowledged that such
partnership executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
BETTE J. FAZEKAS'
NOTARY PUBLIC - CALIFORNIA
ORANGE COUNT
My.Commission Exoire� .t ?? ..
Notary "Pj�nicw
j
I
88-639006
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EXHIBIT "A"
88-fi39006'
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INTEMETRO Po PHASE 2
ARNEL DEVELOPMENT COWANY 950 SOUTH COAST DRIVE. '200 COSTA KSA, CA 92626 714-241-4900
ALBERT C MARTIN APD ASSOCaTES PLANNING I ARCHITECTURE 1 ENGNEERNG 2809 MAN ST i1VNE. CA 97714 714.474-0101
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INTEMETRO Po PHASE 2
ARNEL DEVELOPMENT COWANY 950 SOUTH COAST DRIVE. '200 COSTA KSA, CA 92626 714-241-4900
ALBERT C MARTIN APD ASSOCaTES PLANNING I ARCHITECTURE 1 ENGNEERNG 2809 MAN ST i1VNE. CA 97714 714.474-0101
E OMIT "A-1" —
FUTURE PHASE 4
M.-
88-639008
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AWL DEVELC NT COMPANY •
ALUNT C. HAAT AADASSOCIATES K V$0 SOUTH COAST DANE. 8200 COSTA IDSA • CA 92626 "' • 7 W-241-4900
MACH N. W88 ; W I ARCHITECTURE I EN NEAD'S 2800 MAN ST . IIVK. CA. 927 M ?M.474-0101
SCALE X0 W.0 • 87080.50.300 D 00 .P K
EXHIBIT "A-2"
88-639006
EXHIBIT B
DEVELOPMENT APPROVALS
1. General Plan Amendment GP -82-3A Revised approved
August 20, 1984.
2. Zoning Ordinance Amendment 84-36 approved August
20, 1984.
3. Final Development Plan for Phase I approved as Zone
Exception Permit ZE-84-187 and Zone Exception
-Permit ZE-84-193 on December 3, 1984.
4. Parcel Map No. S-84-389 approved November 13, 1985.
5. Final Development Plan PA -88-03 (Phase 2) approved
February 16, 1988.
6. Final Development Plan PA -88-72 (Phase 3) approved
August 15, 1988.
7. Vesting Tentative Map No. 13452 approved March 14,
1988.
8. Vesting Tentative Map No. 13470 approved August 15,
1988.
88-639006
EXHIBIT C
PHASE 2
1. Site Area Acres
Total 12.3 534,481 sq.ft.
2. Office Building Height and Areas Gross
a. 4 Story Office Building 83,600 sq.ft.
b. 6 Story Office Building 125,400
c. 12 Story Office Building 250,800
Total 459,800 sq.ft.
3. Parking
a. Parking Structure A
(4 Level)
860
Stalls
b. Parking Structure B
(6 Level)
1,416
'c. Future Phase Parking
Allocation
_898
d. Surface Parking
84
Total
1,462
Stalls
Parking Required per 1000
-
a. 83,600 4
334
Stalls
b. 125,400 3
376
c. 250,800 3
752
Total
1,462
Stalls
Page 1 of Exhibit C
88=639006
4. Parking Breakup
a. Full Size 1,085 Stalls
b. Compact 365 25%
c. Handicapped 12
Total 1,462 Stalls
5. Site Coverage
Office Building Coverage (Footprint)
a. 4 Story Office Building 21,065
b. 6 Story Office Building 21,065
c. 12 Story Office Building 21,065
Total Coverage 63,195 12%
Parking structure Coverage (Footprint only)
a. Parking Structure A
(4 Level) 64,255
b. Parking Structure B
(6 Level) 88,155
Total Coverage 152,410 29%
a. Surface Parking & Drives 113,207 21%
b. Plaza & Landscaping Area 205,865 39%
Total Site Coverage 534,677 100%
6. Landscaping Required
Area of 25' Setback 27,.778
84 Surface Stalls at 25 SF/Stall 2,100
Total Required 29,878 sq.ft.
Page 2 of Exhibit C
88=639006.
7. Floor - Area Ratio 0.86
a. Office Building Areas Total 459,800 sq.ft.
b. Site Area Total 534,481 sq.ft.
Page 3 of Exhibit C
EXHIBIT D
88=639006
PHASE 3
1. Site Area Acres
Total 9.85 429,066 Sq. Ft.
2. Building Areas Gross
a. Office Building Area 795,256 Sq. Ft.
b. Commercial Building Area 30,000
Total 825,256 Sq. Ft.
3. Parking
Parking Totals Submitted
a. Parking Structure C (6
Level)
1,180
Stalls
b. Parking Structure D (6
Level)
875
c. Future Phase Parking Allocation
-443
d. Surface Parking
40
e. Allocated from previous
phase
898
Total
2,550
Stalls
Parking Required per 1000
a. 195,256
3
556
Stalls.
b• 300,000
3
900
C. 300,000
3
900
d• 30,000
4
120
Total
2,506
Stalls
Page 1 of Exhibit D
88=639006-
4. Parking Breakup
a. Full Size 1,888 Stalls
b. Compact 638 25%
c. Handicapped 24
Total 2,550 Stalls
5. Building Height and Site Coverage
Office Building Coverage (Footprint)
6.
a. 10 Story Office Building 21,065
b. 15 Story Office Building 21,065
c. 15 Story Office Building 21,065
d. 2 Story Commercial Building 15,000
. Total Coverage 78,195 18%
Parking Structure Coverage (Footprint only)
a. Parking
Structure C
(6 Level)
58,532
b. Parking
Structure D
(6 Level)
42,275
Total
Coverage
100,807 23%
a. Surface
Parking & Drives
62,309 15%
b. Plaza &
Landscaping
Area
187,776 44%
Total Site Coverage 429,087 100%
Landscaping Required
Area of 25' Setback 22,500
40 Surface Stalls at 25 SF/Stall 1,000
Total Required 23,500 Sq. Ft.
Page 2 of Exhibit D
7. Floor Area Ratio
a. Office Building Areas Total
b. Commercial Building Area
c. Total Building Area
d. Site Area Total
Page 3 of Exhibit D
88-639006
1.92
795,256
Sq. Ft.
30,000
Sq. Ft.
825,256
Sq. Ft.
429,066
Sq. Ft.
88-639005
PUBLIC BENEFITS
(2.01(b))
The public benefits to be received by the City of Costa Mesa
as a result of the development of the Project are as follows:
1. Major Business and Employment Center.
Owner will develop a major business center within the
City of Costa Mesa providing a long term source of employment
opportunities that will enhance the image and stature of the
City of Costa Mesa.
2. Metro Pointe Housing Plan.
Owner has agreed and hereby continues to agree to the
incorporation into its Project of a.Housing Plan to be known
as the Metro Pointe Housing Plan. Under the General Plan and
rezone changes accomplished for Metro Pointe and South Pointe
there was a net increase of 140 housing units. Under maximum
build out of the entire Metro Pointe development, including
Phase 4, which has not yet received final approval, a Housing
demand of 752 units will be created. Owner has constructed
the housing required under the General Plan in anticipation
of the commercial development encompassed by Phases 2 and 3,
and the housing provided remains ahead of the demand created
by the Project for housing. In order to insure a
jobs/housing balance developer herein agrees to complete 736
units, comprised of 296 units at Metro Pointe - the Cape and
440 units at South Pointe, prior to occupancy of any
buildings in Phases 2 or 3. This- will insure in place
housing prior to the creation of the demand for it by
Project.
3. Fire Station Contribution.
Owner shall participate on a fair share basis in funding
the cost of construction and basic fire fighting equipment in
conjunction with other benefitting new development in North
Costa Mesa. The Owner's pro rata share for Phase 2 is
$114,950, and for Phase 3 the Owner's pro rata share is
$206,300. Payment by Owner shall be made at time of
building permit issuance. Should, however, a community
facilities district or other similar financing mechanism be
utilized to provide a fire station, Owner shall join such
assessment district to finance their proportionate share in
lieu of a one time fee payment.
4. Metro Pointe Traffic Improvement Plan.
Owner hereby agrees to bear the cost of the needed
improvements to the traffic circulation system affected by
Page 1 of Exhibit E
88-639006
Phases 2 and 3 as itemized hereinbelow subject to the terms
and conditions set forth below.
Phase 2
The needed improvements affected by Phase 2 are the
following intersections:
1. Fairview/Baker
2. Bristol/Sunflower
3. Bear/Paularino
(Scope of work to
be completed is as
detailed in the
North Costa Mesa
Arterial Study)
The costs for the needed improvements for Phase 2 are as
follows:
A. Design costs.
City will contract:for and approve all final design
for Phase 2 improvements and Owner hereby agrees to pay the
actual costs incurred by City for design services, within
thirty (30) days of receiving written notification from City
of final approval of the intersection improvement plans,
estimated to total $258,480.00 in accordance with the
following schedule:
Estimated Estimated Design
Intersection Design Cost Completion Date
1. Fairview/Baker $ 100,000 January 1989
2. Bristol/Sunflower $ 100,000 March 1989
3. Bear/Paularino $ 58,480 April 1989
B. Right of Way acquisition costs including appraisal
costs.
City shall select and retain an appraiser with the
consent of Owner which shall not be unreasonably withheld,
to prepare an appraisal report on the property needed for
right of way acquisition (inclusive of any needed relocation
costs). Owner shall then deposit with City the appraiser's
fee and the amount of the appraisals within thirty (30) days
of written notification by City of said amounts, so that City
may proceed with the acquisition of said property. Upon
final determination of the actual cost of right of way
acquisition as agreed to by City and Owner, owner shall pay
the difference, if any, between the amount of the deposit and
the actual cost of appraisal and acquisition, within thirty
(30) days of written notification by City of said amounts.
City shall proceed with the appraisals, acquisi-
tions, and any relocation associated with the needed right of
way. Currently the estimated right-of-way acquisition costs
Page 2 of Exhibit E
'i i � • 11:�
are $897,000.00.
City estimates that it
will be prepared to
certify acquisition of the
right of way by the following
dates:
Estimated
Estimated
Estimated
Appraisal
Right -of -Way
Right -of -Way
Intersection
Cost
Cost
Certification Date
1. Fairview/
Baker
$ 80,000
$ 707,000
March, 1989
2. Bristol/
Sunflower
$ 40,000
$ 190,000
May, 1989
3. Bear/
Paularino
(no right of way needed)
C. Construction of improvements.
Owner shall put out for bid the construction of the
necessary improvements within thirty (30) days of the City's
certifying it has obtained the necessary right of way and has
finally approved all necessary street improvement plans or
such other plans as may be necessary to build the
improvement. After obtaining bids mutually acceptable to
Owner and City and entering into contracts, Owner shall
diligently proceed with construction of the necessary
improvements currently estimated to cost a total of
$902,800.00 as follows:
Intersection Estimated Construction Cost
I. Fairview/Baker $ 571,700
2. Bristol/Sunflower $ 245,500
3. Bear/Paularino $ 85,600
Phase 3
The needed improvements affected by Phase 3 are the
following intersections and interchanges:
1. Bear/Sunflower
2. South Coast/I-405
(New northbound offramp
construction and associated
Fairview offramp link
reconstruction)
(Scope of work to be
completed is as detailed
in the North Costa Mesa
Arterial Study and I-405
Project Study Report)
Page 3 of Exhibit E
Fairview/I-405 $ 58,900 Start.November 1988
(Southbound
Offramp)
B. Right of Way acquisition costs including appraisal,
costs.
City shall select and retain an appraiser with the
consent of Owner, which shall not be unreasonably withheld,
to prepare an appraisal report on the property needed for
right of way acquisition (inclusive of any needed relocation
costs). Owner shall then deposit with City the appraiser's
fee and the amount of the appraisals, within thirty (30) days
of.written notification by City of said amounts, so that City
may proceed with the acquisition of said property. Upon
final determination of the actual cost of right of way
acquisition as agreed to by City and Owner, Owner shall pay
the difference, if any, between the amount of the deposit anj
the actual cost of appraisal and acquisition, within thirty
(30) days of written notification by City of said amounts.
Page 4 of Exhibit E
88-6 9006
3. Fairview/I-40
(Northbound offramp
widening and southbound
offramp widening)
The costs for the needed improvements for Phase 3 are as
follows:
A. Design costs.
Owner will at
its expense contract
for, and City
will expeditiously approve, all remaining
final design for
Phase 3 improvements
estimated to
total $278,100 in
accordance with the following schedule:
Intersection/
Estimated
Estimated Design
Interchange
Design Cost
Schedule
1. Bear/Sunflower
$ 75,800
Start December 1988
2. South Coast/I-405
$ 76,500
Currently in progress
(New Northbound
by Van Dell under
Offramp)
contract with Owner.
South Coast/I-405
$ 66,900
Start November 1988
(Northbound
Fairview Offramp
Link Reconstruction)
3. Fairview/I-405
(Completed)
Complete
(Northbound Offramp)
Fairview/I-405 $ 58,900 Start.November 1988
(Southbound
Offramp)
B. Right of Way acquisition costs including appraisal,
costs.
City shall select and retain an appraiser with the
consent of Owner, which shall not be unreasonably withheld,
to prepare an appraisal report on the property needed for
right of way acquisition (inclusive of any needed relocation
costs). Owner shall then deposit with City the appraiser's
fee and the amount of the appraisals, within thirty (30) days
of.written notification by City of said amounts, so that City
may proceed with the acquisition of said property. Upon
final determination of the actual cost of right of way
acquisition as agreed to by City and Owner, Owner shall pay
the difference, if any, between the amount of the deposit anj
the actual cost of appraisal and acquisition, within thirty
(30) days of written notification by City of said amounts.
Page 4 of Exhibit E
88-639006
City shall proceed with the appraisal and
acquisition and any relocation associated with the needed
right of way. Right-of-way acquisition for Bear/Sunflower is
estimated to cost $345,000.00 and the estimated cost of
appraisal services is $20,000.00.
C. Construction of Improvements.
Owner shall put out for bid the construction of the
necessary improvements for the Bear/Sunflower intersection
within thirty (30) days of the City's certifying it has
obtained the necessary right of way and has finally approved
all necessary street improvement plans or such other plans as
may be necessary to build the improvement. After obtaining
bids mutually acceptable to Owner and City and entering into
contracts, Owner shall diligently proceed with construction
of the necessary improvements currently estimated,to cost a
total of $455,000.
City shall, at Owner's expense, put out for bid the
construction of the necessary improvements for the South
Coast/I-405 and Fairview/I-405 interchanges within thirty
(30) days of certifying it has obtained the necessary right
of way or easements, if needed, and has finally approved all
necessary street improvement plans or such other plans as may
be necessary to build the improvement. After obtaining bids
mutually acceptable to Owner and City and entering into
contracts, City shall diligently proceed with construction of
the necessary improvements currently estimated to cost a
total $1,606,200. Owner shall deposit the cost of
construction of said improvements with City within thirty
(30) days of written notice by City.
Conditions Applicable To Phase 2 and 3 Improvements
City and Owner agree to the following conditions with
respect to all Phase 2 and 3 improvements set forth
hereinabove:
1. Owner shall receive credits for all monies expended
against its traffic impact fee as finally determined. It is
recognized that the current maximum fee of $668.00 may be
reduced pursuant to Resolution 88-10 and the elimination of
any North Costa Mesa Arterial Projects as the result of a
decrease in currently assumed densities or further
refinements to the plan made as a consequence of new
information or further financing alternatives approved by the
City which may reduce the traffic impact fee.
2. In those cases where public right-of-way is
necessary for Owner to construct the aforementioned public
improvements, Owner shall not be obligated to construct said
Page 5 of Exhibit E
88=639006
improvements prior to building occupancy if City does not
provide right-of-way to Owner in a timely fashion.
3. Upon completion of the improvements referred to
herein, Owner shall be deemed to have complied with PA -88-03
Condition No. 3 relating to all Phase 2 traffic improvements
and PA-88-72/VT-13470 Condition No. 51 with respect to all
Phase 3 traffic improvements.
4. Owner's total traffic impact fee obligation shall
be reduced in accordance with trip end reductions resulting
from a reduction in intensity Owner may make pursuant to
Paragraph 2.03(a)(V) or any changes in methodology used by
City in determining trip generation -rates until the date of
occupancy of the final building in the Project.
5. In the
less than the
improvements set
difference within
event Owner's total traffic impact fee is
total expenditures of Owner for the
forth hereinabove, City shall refund said
ninety (90) days of determination.
6. If the City increases intensities beyond the North
Costa Mesa Arterial Study (September 1988) or I-405 Project
Study Report (September 1988) assumptions, then the Project's
traffic impact fee shall be adjusted to account for the new
trip -ends. Any new improvements required by any project
increasing the intensities beyond that now identified in the
North Costa Mesa Arterial Study or I-405 Project Study Report
will not be funded by the current traffic impact fee program,
but will be project specific expenses.
7. It is recognized that Owner's total maximum Phases
2 and 3 traffic impact improvement fee could be $12,535,688
(multiply average daily trips (18,766) by $668.00) if not
otherwise reduced as set forth herein, and if otherwise
consistent with State law. It may, therefore, be necessary
for Owner to pay additional fees over and above those
advanced pursuant to this Agreement or to participate in a
Mello -Roos District or other funding program, or a
combination thereof pursuant to a further agreement mutually
acceptable to City and Owner.
S. In contracting for the construction of any public
improvements required by this Agreement to be constructed by
Owner, Owner shall comply to the maximum extent practicable
with all applicable City regulations and ordinances and State
laws relative to the procedures in awarding and form of
contract for construction of public improvements.
9. Owner may
above those advanced
into an assessment
Facilities District
Should a Community
satisfy any additional fees
pursuant to this Agreement by
district or Mello Roos
providing for the equivalent
Facilities District or other
Page 6 of Exhibit E
over and
entering
Community
monies.
similar
g6=639006:
mechanism be utilized, Owner shall similarly participate on a
fair share basis with other benefitting development.
Page 7 of Exhibit E