HomeMy WebLinkAboutNS-2979 - Approving Development Agreement No. 2018-01 Between City of Santa Ana and AC 2525 Main, LLC for Certain Real Property...ORDINANCE NO. NS-2979
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING DEVELOPMENT
AGREEMENT NO. 2018-01 BETWEEN THE CITY OF
SANTA ANA AND AC 2525 MAIN, LLC FOR CERTAIN
REAL PROPERTY LOCATED AT 2525 NORTH MAIN
STREET WITHIN THE CITY OF SANTA ANA PURSUANT
TO CALIFORNIA GOVERNMENT CODE SECTION 65864,
ET SEQ.
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:
WHEREAS, the City of Santa Ana ("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; and
WHEREAS, the City has found that development agreements strengthen the
public planning process, encourage private participation in comprehensive planning by
providing a greater degree of certainty in that process, reduce the economic costs of
development, allow for the orderly planning of public improvements and services,
allocate costs to achieve maximum utilization of public and private resources in the
development process, and ensure that appropriate measures to enhance and protect
the environment are achieved; and
WHEREAS, the City enters into this Development Agreement pursuant to the
provisions of the Government Code and applicable City policies; and
WHEREAS, AC 2525 Main, LLC ("Applicant") seeks to develop the Addington
Multi -Family Residential Project ("proposed Project"), originally proposed as a 496-unit
multi -family project on a 5.93-acre site at 2525 North Main Street in Santa Ana,
California ("Project Site"); and
WHEREAS, during the entitlement and environmental review process, and in
response to comments and concerns raised by the public and the City's elected
officials, the Applicant has proposed modifications to the original proposal; and
WHEREAS, the Project as currently proposed now entails, among other things,
(1) demolition of the existing 81,172 square foot vacant two-story office building and
442-space surface parking lot on the Project Site; (2) redevelopment of the 5.93-acre
site with 444,534 square feet of total development, including 277,281 square feet of
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residential buildings that would provide 256 for -rent multi -family residential units and a
167,253 square foot central parking structure and a 284 space surface level parking lot
with residential and commercial parking; (3) approval of Development Agreement No.
2018-01 between the City of Santa Ana ("City") and Applicant; (4) approval of General
Plan Amendment No. 2018-06, which would change the Project Site's existing land use
designation of Professional & Administration Office (PAO) to District Center (DC); and
(5) approval of Amendment Application No. 2018-10, which would change the zoning of
the Project Site from Professional (P) to Specific Development No. 93 (SD-93)
designation; and
WHEREAS, on August 27, 2018, the Planning Commission conducted a work
study session to overview the Project and thirty-two (32) verbal comments were
received (three (3) in support and twenty-nine (29) in opposition) and nine (9) written
comments were received (one (1) in support and eight (8) in opposition); and
WHEREAS, on November 26, 2018, the Planning Commission continued a duly
noticed public hearing for the project to January 14, 2019 and held a second study
session to overview the Project and fifty-eight (58) verbal comments were received
(twenty-five (25) in support; thirty-one (31) in opposition and two (2) neutral) and
eleven (11) written comments were received (two (2) in support and nine (9) in
opposition); and
WHEREAS, on January 14, 2019, the Planning Commission conducted a duly
noticed public hearing to consider the EIR, Development Agreement No. 2018-01,
General Plan Amendment No. 2018-06, and Amendment Application No. 2018-10 and
solicited comments on the EIR. At the meeting, seventy-nine (79).members of the
public spoke on the item, thirty (30) speakers supported the project, forty-eight (48)
opposed it and one speaker was neutral. After hearing all relevant testimony from staff,
the public and the City's consultant team, the Planning Commission voted to
recommend that the City Council does not certify the EIR, adopt the findings, the
statement of overriding considerations and the mitigation monitoring and reporting
program and deny the Project; and
WHEREAS, on February 5, 2019, the City Council conducted a duly noticed
public hearing to consider the EIR, Development Agreement No. 2018-01, General Plan
Amendment No. 2018-06, and Amendment Application No. 2018-10 and solicited
comments on the EIR. At the meeting, sixty-one (61) members of the public spoke on
the item, thirty-eight (38) speakers supported the project, twenty (20) speakers opposed
it and three (3) speakers were neutral and the public hearing was continued to the next
regular adjourned City Council meeting on February 19, 2019; and
WHEREAS, on February 19, 2019, the City Council continued to conduct a duly
noticed public hearing to consider the EIR, Development Agreement No. 2018-01,
General Plan Amendment No. 2018-06, and Amendment Application No. 2018-10 and
solicited comments on the EIR. At the meeting, one hundred and thirty-one (131)
members of the public spoke on the item, twenty-six (26) speakers supported the
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project and one hundred and five (105) speakers opposed it and one hundred and sixty-
six (166) written comments were received with nine (9) in support and one hundred and
fifty-seven (157) in opposition. After hearing all relevant testimony from staff, the public
and the City's consultant team, the City Council voted that the applications go back to
the Planning Commission for reconsideration after further consultation with the
community; and
WHEREAS, in June 2019, the applicant submitted a revised plan consisting of
development 347 multi -family units (59 dwelling units per acre), with 642 parking spaces
(1.85 parking spaces per unit) and parking capacity at 2.0 spaces per unit, within a 4-
story residential building wrapped around a five -level parking structure with an amenity
deck on the sixth -level, private open space, and redesigned the intersection of Main
Street and Walkie Way/Santiago Park Drive to provide access to the project on a 5.93-
acre site (the "June Revised Plan"); and
WHEREAS, on August 12, 2019, the Planning Commission conducted a duly
noticed public hearing to consider the June Revised Plan. At the meeting, seventy-seven
(77) members of the expressed opposition; nine (9) supported the project, and one
speaker was neutral. In addition, one -hundred (100) written comments were received with
six (6) in support and ninety-four (94) in opposition. After hearing all relevant testimony
from staff, the public and the City's consultant team, the Planning Commission vote
resulted in an impasse; and
WHEREAS, in October 2019, in response to comments received the applicant
submitted a further revised plan, including redevelopment of the 5.93-acre site with
444,534 square feet of total development, including 277,281 square feet of residential
buildings that would provide 256 for -rent multi -family residential units and a 167,253
square foot central parking structure and a 284 space surface level parking lot which
also reduced the Project's height, increased the Project's setbacks, and modified the
Project entrance ("October Modified Project"); and
WHEREAS, on October 28, 2019, the Planning Commission conducted a duly
noticed public hearing to consider the EIR, Development Agreement No. 2018-01,
General Plan Amendment No. 2018-06, and Amendment Application No. 2018-10 and
solicited comments on the EIR. At the meeting, sixty-two (62) expressed opposition and
two (2) in expressed support the project. In addition, ninety-eight (98) individuals
submitted comments with ninety-four (94) in opposition and four (4) in support; and
WHEREAS, after hearing all relevant testimony from staff, the public and the
City's consultant team, the Planning Commission by a vote of 3:2, voted to recommend
denial of the project. Since the entitlements require final action by the City Council, the
actions were forwarded to the City Council; and
WHEREAS, on November 8, 2019, the City gave public notice of a City Council
public hearing for consideration of Development Agreement No. 2018-01 by advertising
in the Orange County Register, a newspaper of general circulation, and by mailing to
owners of property and residents within 500 feet of the Project; and
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WHEREAS, on November 19, 2019, the City Council conducted a duly noticed
public hearing to consider the EIR, Development Agreement No. 2018-01, General
Plan Amendment No. 2018-06, and Amendment Application No. 2018-10 and
Environmental Impact Report for the Project, at which hearing members of the public
were afforded an opportunity to comment upon Development Agreement No. 2018-01;
and
WHEREAS, 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 2525 North Main Street 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; and
WHEREAS, the Project and the use that the Developer 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; and
WHEREAS, the City Council has determined that by entering into the
Development Agreement: (i) the City will promote orderly growth and quality
development on the Property in accordance with the goals and policies set forth in the
General Plan; and, (ii) significant benefits will be created for City residents and the
public generally from increased employment, housing, the installation of security fencing
under the Broadway overpass and 1-5 freeway overpass for neighborhood safety, and,
parks and/or park improvements; and
WHEREAS, Environmental Impact Report No. 2018-01 (State Clearinghouse
No. 2018021031) for the proposed Project was circulated between August 7, 2018 and
October 4, 2018; and
WHEREAS, the Environmental Impact Report analyzed the impacts related to
the proposed amendment to the zoning map and adoption of Specific Development
No. 93; and
WHEREAS, the City and Developer have reached mutual agreement and desire
to voluntarily enter into the Development Agreement to facilitate development of the
Project subject to the conditions and requirements set forth therein; and
WHEREAS, the terms and conditions of the Development Agreement have
undergone review by the City Council at a publicly noticed hearing and have been
found to be fair, just, and reasonable, and consistent with the General Plan; and
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WHEREAS, the proposed Project will not adversely affect the General Plan, as
amended by General Plan Amendment No. 2018-06, as is expressly set forth in the
Request for City Council Action dated November 19, 2019 and Request for Planning
Commission Action dated October 28, 2019, together with all supporting documents,
including but not limited to, proposed resolutions, which are incorporated herein by this
reference.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA
DOES RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS:
Section 2. CEQA. The requirements of the California Environmental Quality
Act have been satisfied in that a Final Environmental Impact Report and Mitigation
Monitoring and Reporting Program have been prepared for the Project, including the
Development Agreement.
Section 3. GENERAL PLAN CONSISTENCY. Pursuant to California
Government Code section 65867.5(b) and based on the entire record before the City
Council, including all written and oral evidence presented to the City Council, the City
Council hereby finds that the Development Agreement is compatible with the objectives,
policies, and general plan land use programs specified in the General Plan for the City
of Santa Ana in that:
A. The City of Santa Ana has officially adopted a General Plan.
B. The land uses authorized by the General Plan Amendment, and the
General Plan Amendment itself, are compatible with the objectives, policies,
general land uses, and programs specified in the General Plan, for the following
reasons:
i. The existing General Plan land use designation for the project is
Professional and Administrative Office (PAO), which allows business and
professional offices uses with a floor area ratio of 1.5. In order to facilitate the
construction of a multi -family housing project with a maximum floor area ratio
of 1.43, the general plan land use designation is proposed to be changed to
District Center (DC), which permits high intensity, mixed -use urban villages
and pedestrian -oriented experiences that support mid- to high-rise office
centers, commercial activity, and cultural activities with floor area ratios
ranging from 0.5 to 5.0. Focusing growth within District Centers and along
major corridors reduces the pressure for growth in low density residential
neighborhoods.
ii. The proposed Project will support several goals/objectives and policies of
the General Plan.
Housinq Element (HE) Goal 2: to create diversity of quality housing,
affordability levels, and living experiences that accommodate Santa
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Ana's residents and workforce of all household types, income levels,
and age groups to foster an inclusive community.
HE Policy 2.2 District Centers. Create high intensity, mixed -use urban
villages and pedestrian -oriented experiences that support the mid- to
high-rise office centers, commercial activity, and cultural activities in the
varied District Centers.
HE Policy 2.4 to facilitate diverse types, prices and sizes of housing.
Housing Element (HE) Goal 4: to provide adequate rental and
ownership housing opportunities and supportive services.
The Project will provide 256 rental housing units. The amendment will
expand the District Center designation and provide a connection
between the existing District Centers to the north and south of the site
by providing a residential development that will support a mixed -use
environment.
Land Use (LU) Element Goal 1: to promote a balance of land uses to
address basic community needs.
LU Policy 1.2 Maintain and foster a variety of residential land uses in
the City.
LU Policy 4.3 Support land uses which provide community and regional
economic and service benefits.
LU Policy 4.4 Encourage the development of projects which promote
the City's image as a regional activity center.
LU Policy 5.5 Encourage development which is compatible with, and
supportive of surrounding land uses.
LU Policy 5.7 Anticipate that the intensity of new development will not
exceed available infrastructure capacity.
Land Use (LU) Element Goal 6: to reduce residential overcrowding to
promote public health and safety.
The Project is within Y2 mile of existing transportation infrastructure
such as the Santa Ana (1-5) freeway and State Route 22 (SR 22)
highway which provide vehicular access to the region; the Orange
County Transportation Agency bus routes along Main Street which
connects to the Santa Ana Regional Transportation Center and the
Anaheim Regional Intermodal Center which provides rail service
throughout California; and the project is immediately adjacent to
Santiago Park and the Santiago Creek Bike Trail which connects to
regional bike trails.
Main Street, a major urban corridor with cultural, educational,
employment and retail destinations such as the Bowers Museum,
Discovery Science Center, Main Place Mall and in the City of
Orange; the Children's Hospital of Orange County and St. Joseph's
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Hospital of Orange County. Therefore, the residential development
and parking lot would be within close proximity to major employment
centers and retail establishments. The Project will also provide an
additional housing option for those seeking housing within the jobs
rich northern area of the City. The multi -storied development will
complement the nearby mid -rise office buildings located along Main
Street to the north and west of the site. Although the density will be
higher than the adjacent single-family residential neighborhood, the
residential use is consistent with the residential uses to the east and
south. In addition, multi -family uses are often used in planning and
zoning practice to buffer higher intensity uses like commercial or
industrial uses from single-family residential uses.
Urban Design (LID) Element Goal 1: to improve the physical
appearance of the City through development of districts that project a
sense of place, positive community image, and quality environment.
LID Policy 1.1. New development and redevelopment must have the
highest quality design, materials, finishes and construction.
LID Policy 1.11 Visual and physical links between districts, nodes, and
significant sites, landmarks and other points of interest, are to be
provided in all public and private projects.
The residential buildings are of high quality design and include high
quality materials such as stone veneer, brick veneers, metal panels,
and canopies. The building is designed with courtyards and
landscaped areas to reduce the mass of the building. The Project has
street frontage on Main Street which is identified as a major path in the
General Plan and supports the North Main Street Node described as
an opportunity for the establishment of a cohesive, height intensity,
mixed activity center with a strong presence in the region. The setback
along the east side of the project has been increased to 90 feet and the
setback from Edgewood Road has been increased to 134 feet to
minimize impacts to the neighboring single-family residences. The new
development will include public art and convey a sense of place and
contribute to the urban image for the City along a street corridor that
includes regional, local and cultural landmarks. The development will
be in scale with the buildings along Main Street to the north and west of
the site. In addition, the Urban Design Element of the General Plan
identifies the site as a Gateway; the Project promotes elements of a
Gateway by developing the site with a building with attractive
architectural features, projecting a positive image for the City of Santa
Ana.
C. The proposed Development Agreement will not adversely affect the
public health, safety, and welfare in that the Development Agreement will not
result in incompatible land uses on adjacent properties, inconsistencies with any
General Plan goals or policies, or adverse impacts to the environment.
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Section 4. The Development Agreement, a true and correct copy of which is
attached hereto as Exhibit A and incorporated herein by this reference, is hereby
recommended for City Council approval.
Section 5. The Development Agreement shall not be effective unless and until
Resolution No. 2019-108(Environmental Impact Report No. 2018-01), Resolution No.
2019-107 (General Plan Amendment No. 2018-06) and Ordinance No. NS-2980
(Amendment Application No. 2018-10) are adopted and become effective. If said
resolution and Development Agreement 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 the Development
Agreement shall be null and void and have no further force and effect.
Section 6. INDEMNIFICATION. The Developer shall indemnify, protect, defend
and hold the City and/or any of its officials, officers, employees, agents, departments,
agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all
claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal,
equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute
resolution procedures (including, but not limited to arbitrations, mediations, and such other
procedures), judgments, orders, and decisions (collectively "Actions"), brought against the
City and/or any of its officials, officers, employees, agents, departments, agencies, and
instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul,
any action of, or any permit or approval issued by the City and/or any of its officials,
officers, employees, agents, departments, agencies, and instrumentalities thereof
(including actions approved by the voters of the City) for or concerning the Project,
whether such Actions are brought under the Ralph M. Brown Act, California Environmental
Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil
Procedure sections 1085 or 1094.5, or any other federal, state or local constitution,
statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent
jurisdiction. It is expressly agreed that the City shall have the right to approve, which
approval will not be unreasonably withheld, the legal counsel providing the City's defense,
and that Developer shall reimburse the City for any costs and expenses directly and
necessarily incurred by the City in the course of the defense. City shall promptly notify the
Developer of any Action brought and City shall cooperate with Developer in the defense of
the Action.
Section 7. SEVERABILITY. If any section, subsection, sentence, clause,
phrase or portion of this ordinance 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.
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Section 8 . CITY COUNCIL ACTION. The City Council hereby takes the
following action:
1. The City Council approves Development Agreement No. 2018-01,
attached hereto and incorporated herein as Exhibit A, as follows:
A. The Development Agreement shall not take effect unless and until
Environmental Impact Report No. 2018-01 is certified by the City
Council, and General Plan Amendment No. 2018-06 and Amendment
Application No. 2018-10 are each approved by the City Council.
Section 9. EXECUTION OF ORDINANCE. The Mayor shall sign this Ordinance
and the Clerk of the Council shall attest and certify to the adoption thereof.
ADOPTED this 215t day of January, 2020.
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:64
Lisa Storck
Assistant City Attorney
AYES:
NOES:
U M-3 I F.Al
NOT PRESENT:
Councilmembers
Councilmembers
Councilmembers
Councilmembers
Iglesias, Penaloza, Sarmiento, Solorio (4)
Bacerra. Pulido, Villegas (3)
None (0)
None (0)
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CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify that the attached
Ordinance No. NS-2979 to be the original ordinance adopted by the City Council of the
City of Santa Ana on January 21, 2020 and that said ordinance was published in
accordance with the Charter of the City of Santa Ana.
Date: L o -3-d-O )
Daisy Gomez
Clerk of the Council;
City of Santa Ana
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EXHIBIT A
RECORDED AT REQUEST OF )
AND WHEN RECORDED RETURN TO: )
)
City of Santa Ana )
20 Civic Center Plaza (M-30) )
Santa Ana, CA 92702 )
Attention: Clerk of the Council )
Exempt from filing fees pursuant to Govertunent Code §27383
DEVELOPMENT AGREETVIENT NO.2018.01
THE ADDISON PROJECT AT 2525 N. MAIN STREET, SANTA ANA
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF SANTA ANA
and
AC 2525 MAIN,
A DELAWARE LIMITED LIABILITY COMPANY
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DEVELOPMENT AGREEMENT NO.2018-01
This Development Agreement (hereinafter "Agreement") is entered into as of this IT" day of
December, 2019 by and between the City of Santa Ana, California (hereinafter "CITY"), and AC 2525
Main, it Delaware limited liability company (hereinafter "OWNER").
RECITALS:
WHEREAS, CITY is authorized to enter into binding development agreements with persons having
legal or equitable interests in real property for the development of such property, pursuant to Section 65864,
et seq. of the Government Code; and
WHEREAS, this Agreement constitutes a current exercise of CITY'S police powers to provide
predictability to OWNER in the development approval process by vesting the permitted uses, density,
intensity of use, and timing and phasing of development consistent with the Development Plan fit exchange
for OWNER'S commitment to provide significant public benefits to CITY as set forth in Section 4, below.
WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings
have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, the best interests of the citizens of the City of Santa Ana and the public health, safety
and welfare will be served by entering into this Agreement; and
WHEREAS, the City Council hereby finds and determines that this Agreement is of major
significance because it will enable the CITY to fund much needed capital improvements and provide much
needed public services and will therefore also have a major, beneficial economic impact on the CITY; and
WHEREAS, the provision by OWNER of the public benefits allows the CITY to realize significant
economic, recreational, park, open space, educational, social andpublic facilities benefits. The public
benefits will advance the interests and meet the needs of Santa Ana residents and visitors to a significantly
greater extent than would development of the Property without this Agreement.
WHEREAS, the physical effects, if any, of the Project and this Agreement have been analyzed
pursuant to California Environmental Quality Act as amended to date and as documented in the Final
Environmental Impact Report entitled "Magnolia at the Park Multi -Family Residential Project" (State
Clearinghouse House No, 2018021031 and City of Santa Ana DP No. 2017.34); and
WHEREAS, this Agreement and the Project are consistent with the Santa Ana General Plan and
any specific plan applicable thereto; and
WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in
accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other
procedural matters; and
WHEREAS, development of the Property in accordance with this Agreement will provide
substantial benefits to CITY and will farther important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly
development of the Property, ensure progressive installation of necessary improvements, provide for public
services appropriate to the development of the Project, and generally serve the purposes for which
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development agreements under Section 65864, et sect' of the Government Code are intended.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter
contained and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
DEFINITIONS AND EXFIIB�TS,
1.1 Definitions. The following teens when used in this Agreement shall be defined as follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "CITY" means the City of Santa Ana, a charter city and California municipal
corporation.
1.1.3 "City Council" means the duly elected city council of the City of Santa Ana.
L 1.4 "Commencement Date" means the date the Term of this Agreement commences,
1.1.5 "Development" means the improvement of the Property for the purposes of
completing the structures, improvements and facilities comprising the Project
including, but not limited to: grading; the construction of infrastructure and public
facilities related to the Project whether located within or outside the Property; the
construction of buildings and structures; and the installation of landscaping.
"Development" does not include the maintenance, repair, reconstruction or
redevelopment of any building, structure, improvement or facility after the
construction and completion thereof.
1.1.6 "Development Exaction" means any requirement. of CITY in connection with or
pursuant to any Land Use Regulation or development approval for the dedication
of land, the construction of improvements or public facilities, or the payment of
fees in order to lessen, offset, mitigate or compensate for the impacts of
development on the environment or other public interests.
1.1.7 "Development Impact Pee" a monetary exaction other than a tax or special
assessment, whether established for a broad class of projects by legislation of
general applicability or imposed on a specific project on an ad hoc basis, that is
charged by a local agency to the applicant in connection with approval of a
development project for the purpose of defraying all or a portion of the cost of
public facilities related to the development project, but does not include park "in
lieu" fees specified in Government Code Section 66477, fees for processing
applications for governmental regulatory actions or approvals, or fees collected
under development agreements adopted pursuant to Article 2.5 of the Government
Code (commencing with Section 65864) of Chapter 4.
1.1.8 "Development Plan" means the plan for development of the Properly as set forth
in Exhibit "C".
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1.1.9 "Discretionary Actiou(s)" or "Discretionary Approval(s)" means an action which
requires the exercise of judgment, deliberation or discretion on the part of the City,
including any board, agency, commission or department and any officer at -
employee thereof, in the process of approving or disapproving Development of the
Project, as distinguished from an activity which is defined herein as a Ministerial
Permit or Ministerial Approval.
1.1.10 "Effective Date" means the date the ordinance approving and authorizing this
Agreement becomes effective.
Ll.l 1 "Existing Land Use Regulations" means all ordinances, laws, resolutions, codes,
rules, regulations, policies, requirements, guidelines or other actions of City,
including but not limited to the provisions set forth in the City's General Plan,
Municipal Code which affect, govern or apply to the Development of the Project
and use of the Property in a manner consistent with this Agreement, including,
without liniltation, the permitted use of land, tine density or intensity of use,
subdivision requirements, the maximum height and size of proposed buildings, the
provisions for reservation or dedication of land for public proposes, and the design,
improvement and construction standards and specifications applicable to the
Development of the Property, subject to the terms of this Agreement, whether
adopted by the City Council or the voters in an initiative, which are in effect on
the Effective Date, pursuant to California Government Code Section 65866.
1.1.12 "Existing Project Approvals" means all Project Approvals approved or issued on
or before the Effective Date.
L1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules,
regulations and official policies. of CITY governing the development and use of
land, including, without limitation, the permitted use of land, the density or
intensity of use, subdivision requirements, the maximum height and size of
proposed buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and
specifications applicable to the development of the Property. "Land Use
Regulations" does not include any CITY ordinance, resolution, code, rule,
regulation or official policy, governing;
(a) the conduct of businesses, professions, and occupations;
(b) taxes (special or general) and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and
interests that provide for the use of or the entry upon public property;
(e) the exercise of the power of eminent domain.
L 1.14 Reserved.
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1.1.15 "OWNER" means the persons and entities listed as OWNER on page I of this
Agreement and their successors in interest to all or any part of the Property.
1.1.16 "Ministerial Approvals(s)," or "Ministerial Act(s)" means any approval or act that
is not a Discretionary Approval.
1.1.17 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust
or any other security -device lender, and their successors and assigns.
1.1.18 "Project" means the development of the Property located at 2525 Main Street,
Santa Ann, CA, contemplated by the Development Plan as such Plan may he
further defined, enhanced or modified pursuant to the provisions of this
Agreement.
1.1.19 "Project Approvals" means all site -specific (meaning specifically applicable to the
Project only and not generally applicable to some or all other properties within the
City) plans, maps, permits, and entitlements to use of every kind and nature that
are sought or agreed to in writing by OWNER in its sole and absolute discretion to
Develop the Project and that have been approved by the City. Project Approvals
include, but are not limited to, general plan amendments, site plans, tentative and
final subdivision maps, design guidelines, variances, zoning designations,
conditional use permits, grading, building, and other similar permits, the site -
specific provisions of general plans, enviromnental assessments, including
environmental impact reports and negative declarations.
1.1.20 "Property" means the real property described on Exhibit "A" and shown. on Exhibit
"B" to this Agreement.
1.1.21 "Public Benefit' refers to those benefits provided to the CITY and the community
by OWNER pursuant to Section 4 below.
1.1,22 "Reservation of Rights" means the rights and authority excepted from the
assurances and rights provided to OWNER under this Agreement and reserved to
CITY under Section 3.3 of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of
this Agreement:
Exhibit "A"— Legal Description of the Property
Exhibit `B" — Map showing Property and its location
Exhibit "C" — Development Plan
Exhibit "D" — Development Impact Fees
Exhibit "E" - Reserved
Exhibit "F" — Santiago Park Access Rights
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Exhibit "G" -- Santiago Park Improvements
Exhibit "I3" — Park Santiago Patrol Area Map
Exhibit "I" — Conditions of Discretionary Approvals
Exhibit "J" — Safety Fencing
2. GENERALPROVISIONS.
2.1 Bindine_1;ffect of A •egi ement. The Property is hereby made subject to this Agreement.
Development of the Property is hereby authorized and shall be carried out in accordance
with the terms of the Development Plan and this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee
simple title to, or has an equitable interest in, the Property or a portion thereof.
2.3 City Council Findings. The City Council finds that:
2.3.1 This Agreement is consistent with the CITY'S General Plan.
2.3.2 This Agreement ensures a desirable and functional community environment,
provides effective and efficient development of public facilities, infrastructure, and
services appropriate for the development of the Project, enhances effective
utilization of resources within the City.
2.3.3 This Agreement provides public benefits beyond those which are necessary to
mitigate the development of the Project.
2.3.4 This Agreement strengthens the public planning process, encourages private
participation in comprehensive planning and reduces costs of development and
government.
2.3.5 The best interests of the citizens of the CITY and the public health, safety, and
welfare will be served by entering into this Agreement.
2.4 Tenn.
The term of this Agreement shall commence on the date (the "Commencement Date") that
is the Effective Date, and shall continue for a period of four (4) years thereafter, unless this
term is modified or extended pursuant to the provisions of this Agreement. Thereafter, the
OWNER shall have no vested right under this Agreement, regardless of whether or not
OWNER has paid any Development Impact Fee.
2.4.1 The Term of this Agreement may be extended upon the mutual written agreement
of the CITY' S City Manager and the OWNER for no more than two (2) additional
consecutive one (1) year periods ("Extension Term"). Notwithstanding the
immediately preceding sentence or any other part of this Agreement, in no event
shall the Development Agreement Period exceed 2160 consecutive calendar days
from the Effective Date. Prior to the CITY wanting each Extension Term:
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(a) OWNER shall demonstrate to the City Manager's reasonable satisfaction
that OWNER has and will continue to diligently pursue the development
of the Project;
(b) OWNER shall pay to the CITY Fifty Thousand Dollars ($50,000) to
partially compensate the CITY for the significant lost revenue to be
received by the CITY had the Project been completed.
2.4.2 If any party other than OWNER initiates litigation that challenges the Project or
She Existing Project Approvals, the OWNER will have the right to toll
commencement of the Term and any obligations of OWNER under the Agreement
during the period of such litigation. The tolling shall commence upon receipt by
the City of written notice firom OWNER invoking this right to tolling. The tolling
shall terminate when (1) a final order is issued in said litigation that upholds the
Project and the Existing Project Approvals or (2) the litigation is dismissed with
prejudice by all Parties; whichever occurs first.
2.5 Assignment.
2.5.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property
in whole or in part (provided that no such partial transfer shall violate the
Subdivision Map Act, Government Code Section 66410, at sM.) to any person,
partnership, joint venture, firm or corporation at any time during the term of this
Agreement; provided, however, that any such sale, transfer or assignment shall
include the assignment and assumption of the rights, duties and obligations arising
under or from this Agreement and be made in strict compliance with the following
conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer or
assignment of all or a part of the Property to which such rights or interests
apply, Any sale, transfer or assignment shall require the consent of the
CITY which shall not be unreasonably withheld, conditioned, or delayed.
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(b) Concurrent with any such sale, transfer or assignment, OWNER shall
notify CITY, in writing, of such sale, transfer or assignment and shall
provide CITY with an executed agreement ("Assignment and Assumption
Agreement"), in a form reasonably acceptable to CITY, by the purchaser,
transferee or assignee and providing therein that the purchaser, transferee
or assignee expressly and unconditionally assumes all the duties,
obligations, agreements, covenants, waivers of OWNER under this
Agreement, including, without limitation, the covenants not to sue and
waives contained un Sections T2 and 8.4 hereof.
(c) OWNER shall provide CITY with such infomnation reasonably requested
by CITY that demonstrates such transferee or assignee has sufficient
development experience and financial capability to complete the Project
and perform all obligations assumed.
(d) Any sale, transfer or assigmnent not made in strict compliance with the
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foregoing conditions shall constitute a default by OWNER under this
Agreement. Notwithstanding the failure of any purchaser, transferee or
assignee to execute the agreement required by Paragraph (b) of this
Subsection 2.5.1, the burdens of this Agreement shall be binding upon
such purchaser, transferee or assignee, but the benefits of this Agreement
shall not inure to such purchaser, transferee or assignee until and unless
such agreement is executed.
(e) The Executive Director for the Planning and Building Agency shall have
the administrative authority to determine that OWNER has complied with
the above conditions. Such determination shall not be unreasonably
withheld or delayed.
2.5.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment,
a transferring OWNER shall continue to be obligated under this Agreement with
respect to the transferred Property or any transferred portion thereof, unless such
transferring OWNER is given a release in writing by CITY, which release shall be
provided by CITY upon the full satisfaction by such transferring OWNER of the
following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the
Property subject to the transfer.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement
required under Paragraph (b) of Subsection 2.5.1 above.
(d) The purchaser, transferee or assignee provides CITY with security
equivalent to any security previously provided by OWNER to secure
performance of its obligations hereunder,
2.5.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after air
initial sale, transfer or assignment shall be made only in accordance with and
subject to the terms and conditions of this Section.
2.5.4 Utilities. The Project shall be connected to all utilities necessary to provide
adequate water, sewer, gas, electric, and other utility service to the Project, prior
to the issuance of final approval for occupancy or the certificate of occupancy for
any portion of the Project.
2.5.5 Sale to Public and Completion of Construction. The provisions of Subsection 2.5.1
shall not apply to the sale or lease (for a period longer than one year) of any lot
that has been finally subdivided and is individually (and not in "bulk") sold or
leased to a member of the public or other ultimate user. This Agreement shall
terminate with respect to any lot and such lot shall be released and no longer be
subject to this Agreement without the execution or recordation of any further
document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in "bulk")
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sold or leased (for a period longer than one year) to a member of the public
or other ultimate user; and
(b) City final approval for occupancy or the certificate of occupancy has been
issued for a building on the lot, and the fees for such lot set forth in this
Agreement have been paid.
2.6 Amendment or Cancellation of Agreenment. This Agreement may be amended or canceled
hm whole or in part only by written consent of all parties in the manner provided for in
Govenunent Code Section 65868. This provision shall not limit any remedy of CITY or
OWNER as provided by this Agreement.
2.7 Termination. This Agreement shall be deemed terminated and of uo further effect upon the
occurrence of any of the following events:
(a) Expiration of the stated Term of this Agreement as set forth in Section 2.4.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the
ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance
approving this Agreement.
(1) Within five (5) days of receipt of a referendum petition by the CITY, OWNER
shall deposit Fifty Thousand Dollars ($50,000) ("Referendum Deposit") with the
CITY. CITY may use the funds to pay any and all costs associated with said
referendum measure. If at any time the Referendum Deposit account has Five
Thousand Dollars ($5000) or less remaining, OWNER shall, within three (3) hays
of receiving notice from the CITY, deposit with the CITY additional funds as
requested by the CITY to cover all costs and expenses associated with processing
the referendum and holding the related election. Following certification of the
election results, any foods remaining in the Referendum Deposit account shall be
returned to the OWNER.
(d) Completion of the Project in accordance with the terns of this Agreement
including issuance of all required occupancy permits, final approval for occupancy
by the CITY, and acceptance by CITY or applicable public agency of all required
dedications.
(e) Termination of this Agreement shall not constitute termination of any other land
use entitlements approved for the Property. Upon the expiration of the Tenn of
this Agreement, no party shall have any father right or obligation hereunder
except with respect to any obligation to have been performed prior to such
termination or with respect to any default in the performance of the provisions of
this Agreement that has occurred prior to such termination or with respect to any
obligations that are specifically set forth as surviving this Agreement. Upon such
termination, any Development hnpact Fees paid by OWNER to CITY for
residential units on which construction has not yet begun shalt be refunded to
OWNER by CITY. OWNER agrees that notwithstanding the termination of this
Agreement by its term or default, those provisions which by their language or
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intent, including but not limited to, the release and indenmity provisions, as set
forth in Sections 7.2 and 8 shall survive termination of this Agreement.
2.8 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the
communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other comununicationrequired or
permitted hereunder.
(b) All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or (ii) on the date of delivery
shown on the return receipt, after deposit in the United States trail in a sealed
envelope as either registered or certified mail with return receipt requested, and
postage and postal charges prepaid, and addressed to the recipient named below;
or (iii) on the date of delivery shown in the records of the telegraph company after
transm ssion by telegraph to the recipient named below. All notices shall be
addressed as follows:
If to CITY
City Clerk
20 Civic Center Plaza, 8°i Floor
PO Box 1988, M-30
Santa Ana, Ca 92702
Copy to:
City Manager
City Attorney
Executive Director of Planning and Building Agency
If to OWNER:
AC 2525 MAIN, LLC
240 Newport Center Drive, Suite 200
Newport Beach, CA. 92660
Attn: Manager
Telephone: [310-343-1831]
(c) Either party may, by notice given at any time, require subsequent notices to be
given to another person or entity, whether a party or an officer or representative of
a party, or to a different address, or both. Notices given before actual receipt of
notice of change shall not be invalidated by the change.
DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of
Rights, OWNER shall have a vested right to develop the Property in accordance with, and
to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project
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shall remain subject to all Existing Land Use Regulations and Development Approvals.
Except as otherwise provided in this Agreement, and notwithstanding the authority of the
CITY to further revise the Land Use Regulations pursuant to Government Code section
65866, the permitted uses of the Property, the density and intensity of use, the maximum
height and size of proposed buildings, and provisions for reservation and dedication of land
for public purposes shall be those set forth in the Land Existing Use Regulations and
Development Approvals. OWNER shall comply with all mitigation measures required to
be undertaken pursuant to any document prepared in compliance with the California
Environments] Quality Act with respect to the Project.
3.2 Effect of Aureement on Land Use Regulations. Except as otherwise provided under the
terms of this Agreement including the Reservation of Rights, the rules, regulations and
official policies governing permitted uses of tine Property, the density and intensity of use
of the Property, the maxhmun height and size of proposed buildings, and the design,
improvement and construction standards and specifications applicable to development of
the Property shall be the Existing Land Use Regulations and Development Approvals. In
connection with any subsequently adopted Project Approvals and except as specifically
provided otherwise herein, CITY may exercise its discretion in accordance with the Land
Use Regulations then in effect, as provided by this Agreement, including, but not limited
to, the Reservation of Rights. CITY shall accept for processing, review and action all
applications for subsequent Project Approvals, and such applications shall be processed in
the same manner and the CITY shall exercise its discretion, when required or authorized
to do so, to the same extent it would otherwise be entitled in the absence of this Agreement.
3.3 Reservation of Rights.
3.3.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of
this Agreement, the following regulations shall apply to the development of the
Property:
(a) Processing fees and charges of every kind and nature imposed by CITY to
cover the actual costs to CITY of processing applications for Development
Approvals or for monitoring compliance with any Development
Approvals granted or issued,
(b) Procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
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(c) Regulations, policies and rules governing engineering and construction
standards and specifications applicable to public and private
improvements, including, without limitation, all uniform codes adopted by
the CITY and any local amendments to those codes adopted by the CITY,
including, without limitation, the CITY's Building Code, Plumbing Code,
Mechanical Code, Electrical Code, and Grading Ordinance.
(d) Regulations imposing Development Exactions; provided, however, that no
such Development Exaction adopted after tine Effective Date shall apply
to development of the Property under this Agreement unless agreed to by
OWNER. In the event any such subsequently adopted Development
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Exaction, agreed to by OWNER, fulfills the same purposes, in whole or in
part, as the fees set forth in Section 4 of this Agreement, CITY shall allow
a credit against such subsequently adopted Development Exaction for the
fees paid under Section 4 of this Agreement to the extent such fees fulfill
the same purposes.
(e) Regulations that may be in material conflict with this Agreement but that
are reasonably necessary to protect the residents of the project or the
immediate community from a condition perilous to their health or safety.
To the extent possible, any such regulations shall be applied and construed
so as to provide OWNER with the rights and assurances provided under
this Agreement.
(f) Regulations that are not in material conflict with this Agreement or the
Development Plan. Any regulation, whether adopted by initiative or
otherwise, limiting the rate or tinting of development of the Property shall
be deemed to materially conflict with the Development Plan and shall
therefore not be applicable to the development of the Property.
(g) Regulations that are in material conflict with the Development Plan;
provided OWNER has given written consent to the application of such
regulations to development of that Property in which the OWNER has a
legal or equitable interest.
(h) Regulations that impose, levy, alter or amend fees, or charges relating to
consumers or end users, including, without limitation, trash can
placement, service charges and limitations on vehicle parking.
(i) Regulations of other public agencies, including Development Impact Fees
adopted or imposed by such other public agencies, although collected by
CITY.
33.2 Subsequent Project Approvals, This Agreement shall not prevent CITY, in acthrg
on subsequent Project Approvals and to the same extent it would otherwise be
authorized to do so absent this Agreement, from applying subsequently adopted or
amended Land Use Regulations that do not materially conflict with this
Agreement.
3.3.3 Modification or Suspension by tate or Federal Law. In the event that State,
County or Federal laws or regulations, enacted after the Effective Date of this
Agreement, prevent or preclude compliance with one or more of the provisions of
this Agreement, such provisions of this Agreement shall be modified or suspended
as may be necessary to comply with such State or Federal laws or regulations;
provided, however, that this Agreement shall remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions impractical to enforce.
3.3.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority
to limit certain aspects of its police power by contract slid that the foregoing
limitations, reservations and exceptions are intended to reserve to CITY all of its
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Police power that cannot be or are not expressly so limited. This Agreement shall
be construed, contrary to its stated terms if necessary, to reserve to CITY all such
power and authority that cannot be or is not by this Agreement's express terms so
restricted.
3.4 Regulation by Other Public A eacios. It is acknowledged by the Parties that other public
agencies not within the control.. of CITY may possess authority to regulate aspects of tire,
development of the Property separately from orjohntly with CITY and this Agreement does
not limit the authority of such other public agencies.
3.5 Tinting of Development. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal, 3d 465 (1984), that the failure of the parties
in that case to provide for the tinting of development resulted in a later -adopted initiative
restricting the timing of development to prevail over the parties' agreement, it is the
specific intent of the Parties to provide for the timing of the Project in this Agreement. To
do so, the Parties acknowledge and provide that OWNER shall have the right, but not the
obligation, to complete the Project in such order, at such rate, at such times, and in as many
development phases and sub -phases as OWNER deems appropriate in its sole subjective
business judgmom
3.6 Conditions, Covenants and Restnetions
3A 1 OWNER shall have the ability to reserve and record such covenants, conditions,
and restrictions (CC&Rs) against the Property as OWNER deems appropriate, in
its sole and absolute discretion. Such CC&Rs may not conflict with this
Agreement or the General Plan, Before recording any CC&Rs, OWNER shall
provide a copy of the CC&Rs to the CITY for review and approval by the City
Attomey, whose approval shall not be unreasonably withheld.
3.6.2 The City Attorney's review shall be limited to determining if the CC&Rs
substantially comply with this Agreement and Project's conditions of approval as
approved by the City Council and that the CC&Rs incorporate and reference the
following information regarding ire approved development:
(a) The Parking Management Plan
(b) The Overcrowding Mitigation Implementation Plan
(c) The Property Maintenance Agreement
(d) The Project Conditions of Approval
3.6.3 Within thirty (30) days after receiving a copy of the proposed CC&Rs from
OWNER, the City Attorney shall provide OWNER with either (i) a statement that
the CC&Rs comply with this Agreement ("CC&R Approval") or (ii) written
continents identifying each aspect of the CC&Rs which the City Attorney believes
not to be in compliance with this Agreement (a "Statement of Non -Compliance").
If the City Attorney fails to provide OWNER with either CC&R Approval or a
Statement of Non -Compliance within thirty (30) days following a written request
by OWNER, City shall be deemed to have denied the CC&Rs and OWNER may
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not record the CC&Rs against the Property. If the City Attorney provides a
Statement of Non -Compliance, OWNER shall have thirty (30) days in which to
respond to the Statement of Non -Compliance. Upon submittal of OWNER'S
response, the procedure described above for the initial submittal slid City Attorney
review of proposed CC&Rs shall again be followed. This procedure shall be
followed until OWNER either (1) receives CC&R Approval, (2) submits the
compliance issues to binding arbitration pursuant to the rules of the American
Arbitration Association, (3) files an action for declaratory relief in Orange County
Superior Corot seeking ajudicial determination of the compliance of the proposed
CC&Rs, or (4) agreement is otherwise reached between the Parties allowing for
the recording of the CC&Rs. The CC&Rs shall ran with the land and bind
OWNER'S successors and assigns. Except as provided above, any dispute
between the Parties regarding the CITY'S approval or rejection of the CC&Rs
shall be subject to immediate and binding arbitration pursuant to the rules of the
American Arbitration Association.
3.7 Moratoria. Except as specifically set forth in this section, CITY agrees that no moratorium
or other similar limitation (whether relating to the rate, timing, or sequencing of the
development of the Proj ect or any part thereof and whether or not enacted by local initiative
or otherwise) affecting subdivision/tract maps, grading or building permits, occupancy
certificates, or other entitlements approved, issued, or granted within the CITY, after the
Effective Date of this Agreement, shall apply to the Project. OWNER acknowledges and
agrees that the provisions hereof shall not preclude the application to the Project of a
moratorium or other similar limitation (of the type described in the preceding sentence)
enacted in order to protect an imminent threat to the public health or safety.
3.8 Development Aereemen[/Proj ect Approvals. hi the event of any inconsistency between any
Existing Land Use Regulation and a Project Approval, the provisions of the Project
Approval shall control. In the event of any inconsistency between any Existing Land Use
Regulation, any Project Approval and this Agreement, the provisions of this Agreement
shall control.
3.9 LEED Certification, OWNER shall design and construct the building to achieve not less
than a Leadership in Energy and Environmental Design ("LEED') Silver Standard
equivalent. OWNER shall focus design efforts to ensure the Project meets the
environmental needs of the community, as well as, the Project, itself, maintains an eco-
friendly design. It is anticipated the Project will include, but is not limited to, drought
tolerant landscaping and irrigation systems, solar and EV systems, and reclaimed water.
4. PUBLIC BENEFITS.
4.1 Iintent. The Parties acknowledge and agree that development of the Property will result in
substantial public needs that will not be fully met by the Development Plan and further
acknowledge and agree that this Agreement confers substantial private benefits on
OWNER that should be balanced by commensurate public benefits.
4.2 Public Benefits. OWNER has committed by this Agreement to contribute to the
acquisition, construction and maintenance of certain "Public Benefits" as provided below:
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4.2.1 CITY Facilities. OWNER shall provide the following benefits towards the
acquisition, construction and maintenance of the CITY Facilities, as follows:
(a) Public Art. OWNER shall create, install, and maintain a public art project
with a value equivalent to one-half of one percent (0.5%) of the total
construction cost of the Project. Total construction cost shall mean all
design, engineering and construction costs. OWNER shall prepare and
submit to the CITY, no later than one hundred eighty (180) days before
final approval for occupancy or the issuance of a certificate of occupancy,
a public art plan that is consistent with Chapter 15 of the Citywide Design
Guidelines, Public Art Guidelines. The approved art shall be installedprior
to final approval for occupancy or the issuance of a Certificate of
Occupancy for the Project.
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(b) Santiago Park Improvement Construction. OWNER shall, prior to
issuance of the first building permit, pay to CITY $700,000.00 to
construct the Santiago Park Phase lI Park Improvements ("Park
Improvements"). The Park Improvements shall include, but are not
bruited to design, engineering, permitting, construction, and installation
of irrigation, landscaping, security lighting and bike trail etdiancement,
as described in more detail on Exhibit "G".
(c) Park Santiago Neighborhood Benefits. OWNER shall provide the
following, which shall also be included in the Property Maintenance
Agreement which must be recorded against the Property. The execution.
and recordation of the Property Maintenance Agreement shall be a
condition precedent to the issuance of final approval for any construction
permit.
(1) Limited access to onsite amenities in a manner to be determined
by OWNER as reasonably acceptable to Planning and Building
Agency Executive Director,
(2) Security patrol in the residential neighborhood and Santiago Park
Patrol area: Project, Park Santiago and Park Santiago area
as depicted on attached Exhibit "II"
b. Type of patrol: Periodic roving security twenty-four (24)
hours a day, seven days per week.
Term: 55 years subject to annual review during which
review it may be determined that such tern shall end
earlier.
(3) This section and these benefits shall survive expiration of
the Term of this Agreement.
(d) Park Santiago Public Improvements and Traffic Calming. Subject to the
approval by the Executive Director of Public Works Agency and the
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Executive Director of Planning and Building Agency and meeting CITY
design specifications and standards, OWNER shall pay for the design and
construction of the public improvements identified below prior to final
approval for occupancy or the issuance of a Certificate of Occupancy.
CITY shall be solely responsible for all aspects of the public
improvements including, but not limited to, the analysis, design,
engineering, construction and inspection/administration of:
(1) Santiago Park neighborhood improvements at up to three
locations on Edgewood and/or Bush Street to achieve traffic
calming. Improvements may be based on input from the Santiago
Park Neighborhood Association and may include, but not be
limited to, bulb -outs, traffic circles and medians within the
neighborhood streets.
(2) Sheet lighting enhancements by replacing all existing non -LED
lights and/or fixtures with LED lights and/or fixtures throughout
the Santiago Park Neighborhood.
(3) A sheet light at the Santiago Park Drive / Main Street intersection.
(4) Decorative concrete pavement within the intersection of Main
StreetAVaWe Way and Main Street/Santiago Park Drive.
4.2.2 Safety Fencing. At the time of issuance of the first building permit, OWNER shall
pay the CITY $150,000.00 to reimburse the CITY for the installation and
maintenance of security fencing under the I-5 freeway and Broadway overpass for
neighborhood safety (see Exhibit "J" - Safety Fencing).
4.2.3 Graffiti Removal. OWNER shall install and maintain graffiti protection on all new
surfaces and shall, within 24 hours of receiving notice of graffiti, cause it to be
removed and associated restorations completed throughout the Project.
4.3 Development Impact Fees
4.3.1 Amount of Fee. The Development Impact Fees set forth in Exhibit "D" shall be
charged to the Project. These fee amounts are estimated and will be subject to
change based on the fee rate applicable at the time of issuance of the Building
Permit.
4.3.2 Time of Payment. The fees required pursuant to Subsection 4.3.1 shall be paid to
CITY prior to the issuance of the first building permit for the Development,
4.3.3 Reserved.
4.3.4 Future Development Impact Fee Program Changes. The Parties hereby agree that,
in addition to the Development Impact Fees included in Exhibit "D", the Project
shall be subject to any increase in fees, or amendment or alteration, of
Development Impact Fee programs in effect on the Effective Date.
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4.3.5 Pre a nicnt. In no event shall the prepayment of any Development Impact Fees
required hereunder establish a vested right on the part of OWNER or any other
owner of the Property or any person or entity with an interest therein to develop
the Project or the Property following the expiration, cancellation or termination of
the Term of this Agreement. Following the expiration, cancellation or termination
of this Agreement, all Development Impact Fees then in effect shall be applicable
to the Project and Property notwithstanding any provision of this Agreement and
notwithstanding the prepayment of the Development Impact Fees set forth in
Exhibit "D", any increase or amendment of any Development Impact Fee, or any
combination thereof.
4.4 Dedication of On -Site Easements and Rights of Way. OWNER shall dedicate to CITY all
on -site rights of way and easements deemed necessary for public improvements as
indicated on the approved Development Plan for the Project within 15 days of receipt of
written demand from CITY.
4.5 Tuning of Construction of Off -Site Infrastructure. Approval of any issuance of final
approval for occupancy on the Property shall be conditioned upon CITY's determination,
in its sole discretion, that sufficient progress is being made on construction of off -site
infrastructure serving development of OWNER's Property.
4.6 Santiago Park Access. OWNER shall grant the CITY a public use, access, ingress, and
egress easement in perpetuity on and within the Development to provide public access to
Santiago Park. The scope, location, and all aspects of the easement shall meet the
requirements reasonably set forth by the City as determined by the Executive Directors of
the Parks, Recreation and Community Services, Public Works, and the Planning and
Building Agency and consistent with the conceptual design as described/depicted on
Exhibit "F".
4.6.1 OWNER shall be responsible for the ongoing maintenance of the easement area.
The easement area shall be maintained consistent with CITY standards and to
CITY'S reasonable satisfaction at all times.
4.6.2 Reserved.
4.6.3 Reserved.
4.7 Housing Opportunity Ordinance. Project shall comply with the requirements of the
Housing Opportunity Ordinance (the "H00") in effect on the Effective Date,
4.8 Overcrowding Mitigation Implementation Plan. Based. on U.S. Census figures, the City of
Santa Ana has one of the highest average number of people per household in the nation at
4.34 people per household. OWNER cornmits to limit occupancy of the residential units
within the project site to levels in compliance with local, state and federal fair mousing
standards. Prior to applying to the CITY for occupancy permit, the OWNER shall submit
to the CITY an Overcrowding Mitigating Implementation Platt. Prior to changing or
revising the implementation plan, Owner shall provide a 60-day minimum written notice
to the City Community Development Agency and the Planning and Building Agency
informing of any proposed changes or revisions.
4.9 Local Live -Work Preference. Prior to issuance of any Building Permits, OWNER shall
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develop and submit to the City Manager or his/her designee, a local live -work plan for
the Project targeting, to the extent feasible and consistent with state and federal fair
housing laws, a preference or priority for persons who currently either live or work in the
City of Santa Ana for the rental of units at the Project.
4.10 Local Sourcing Plan. OWNER agrees to make a good faith effort to encourage
contractors and suppliers to hire and procure locally, to the extent that it is cost effective
and does not delay the overall project development schedule. Prior to issuance of any
Building Permits, OWNER shall develop and submit to the Planning and Building
Agency (the "PBA") a local sourcing plan for the Project targeting, to the extent feasible,
the hiring of qualified workers, construction contractors, or the purchasing of goods
locally within the City of Santa Ana. The plan must be reviewed in a timely manner and
approved by the PBA and be implemented for the construction of the project prior to
issuance of any Building Permits. Such approval shall not be unreasonably withheld.
5. FINANCING & MAINTENANCE OF PUBLIC IMPROVEMENTS AND SERVICES
OWNER may propose, and if requested by CITY shall cooperate in, the fannation of any special assessment
district, cmmnmrity facilities district or alternate financing mechanism to pay for the construction and/or
maintenance and operation of public infrastructure facilities required as part of the Development Plan by
providing up to $50,000 toward the costs of CITY in preparing a study to determine the need for any such
districtor alternate financing mechanism. To the extent any such district or otber financing entity is formed
and sells bonds in order to finance such reimbursements, OWNER may be reimbursed to the extent that
OWNER spends funds or dedicates land for the establishment of public facilities. If such a district or other
financing entity is proposed OWNER agrees not to oppose such formation. Notwithstanding the foregoing,
it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as
requiring CITY or the City Council to form any such district or other financing entity or to issue and sell
bonds. In addition, it is acknowledged and agreed by the parties that nothing contained in this Agreement
shall be construed as requiring OWNER to vote in support of or annex to such district or other financing
entity. It shall be the sole right of OWNER to determine whether to be in or out of any such district or other
financing entity.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic Review. The CITY shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the compliance by OWNER with
the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a
form acceptable to the City Manager, within thirty (30) days after written notice from the
City Manager. The Annual Monitoring Report shall be accompanied by an annual review
and administration fee sufficient to defray the estimated costs of review and administration
of the Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council,
6.2 Special Review. The City Council may order a special review of compliance with this
Agreement at any time. The City Manager, or his or her designee, shall conduct such
special reviews.
6.3 Procedure.
(a) During either a periodic review or a special review, OWNER shall be required to
demonstrate good faith compliance with the terms of the Agreement. The burden
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Of proof on this issue shall be on OWNER, at OWNER's sole expense
(b) Upon completion of a periodic review or a special review, the City Manager, or
his or her designee, shall submit a report to the Planting Commission setting forth
the evidence concerning good faith compliance by OWNER with the terns of this
Agreement and his or her recommended fording on that issue.
(c) If the Planning Commission finds and determines on the basis of substantial
evidence that OWNER has complied in good faith with the terms and conditions
of this Agreement, the review shall be concluded,
(d) If the Planning Conmmission finds and determines on the basis of substantial
evidence that OWNER has not complied in good faith with the terns and
conditions of this Agreement, the Commission shall provide written notice to
OWNER of such findings setting forth the nature of the problem and the actions,
if any, required by OWNER to cure such problem and, where the problem can be
cured, OWNER has failed to take such actions and cure such problem within thirty
(30) days after the effective date of such notice or, in the event that such problem
cannot be cured within such thirty (30) day period but can be cured within a longer
time, has failed to commence the actions necessary to cure such problem within
such thirty (30) day period and to diligently proceed to complete such actions and
cure such problem. If OWNER fails to take the necessary actions, the Conunission
may recommend to the City Council modification or termination of this
Agreement. OWNER may appeal a Plamming Commission determination pursuant
to this Section 6.3(d) pursuant to CITY's rules for consideration of appeals in
zoning matters then in effect. Notice of default as provided under Section 7.3 of
this Agreement shall be given to OWNER prior to or concurrent with proceedings
under Section 6.4 and Section 6.5.
6.4 Proceedines UnonModificationorTermination, If, upon a finding under Section 6.3, CITY
determines to proceed with modification or termination of this Agreement, CITY shall give
written notice to OWNER of its intention so to do. The notice shall be given at least ten
(10) calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing
(b) A statement as to whether or not CITY proposes to terminate or to modify the
Agreement, and,
(c) Such other information that the CITY considers necessary to inform OWNER of
the nature of the proceeding.
6.5 Hearing on Modification or Termination. At the time and place set for the hearing on
modification or termination, OWNER shall be given an opportunity to be heard. OWNER
shall be required to demonstrate good faith compliance with the terms and conditions of
this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council
finds, based upon substantial evidence, that OWNER has not complied in good faith with
the terms or conditions of the Agreement, the City Council may terminate this Agreement
or modify this Agreement and impose such conditions as are reasonably necessary to
protect the interests of the CITY. The decision of the City Council shall be final.
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6.6 Certificate ofAare emeat Compliance. If, at the conclusion of a Periodic or Special Review,
OWNER is found to be in compliance with this Agreement, CTTY shall, upon request by
OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating
that after the most recent Periodic or Special Review and based upon the information
known or made known to the City Manager and City Council that: (1) this Agreement
remains in effect; and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record notice of the
finding of compliance, shall state whether the Certificate is issued after a Periodic or
Special Review and shall state the anticipated date of commencement of the next Periodic
Review. OWNER may record the Certificate with the County Recorder.
6.6.1 Whether or not the Certificate is relied upon by assignees or other transferees or
OWNER, CITY shall not be bound by a Certificate if a default existed at the time
of the Periodic or Special Review, but was concealed from or otherwise not known
to the City Manager or City Council.
6.7 Conditions of Discretionary Approvals. The requirements imposed as conditions of any
discretionary approval receivedthrough the City's existing regulatory process shall be
governed by the terns of those approvals, and in no event shall such conditions be
affected bythe termination, cancellation, rescission, revocation, or default or expiration
of this Development Agreement (although such conditions must comply with the
Applicable Rules), The Conditions of Approval are incorporated herein by reference and
attached as Exhibit "I"
7. DEFAULT AND REMEDIES,
7.1 Remedies in Geneeal. It is acknowledged by the parties that CITY would not have entered
into this Agreement if it were to be liable in damages under this Agreement, or with respect
to this Agreement or the application thereof, hi general, each of the parties hereto may
pursue any remedy at law or equity available for the breach of any provision of this
Agreement, except that CITY shall not be liable in damages to OWNER, or to any
successor in interest of OWNER, or to any other person, slid OWNER covenants not to
sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action that arises out of this
Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or
provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the
application or interpretation or effect of the provisions of this Agreement.
7.2 Release. Except for non -monetary remedies, OWNER, for itself, its successors and
assignees, hereby releases CITY, its officers, agents and employees from any and all
claims, demands, actions, or suits of any kind or nature arising out of any liability, known
or unknown, present or future, including, but not limited to, any claim or liability, based or
asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth and
Fourteenth Amendments to the United States Constitution, or any other law or ordinance
which seeks to impose any other liability or damage, whatsoever, upon CITY because it
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entered into this Agreement or because of the terms of this Agreement. OWNER hereby
acknowledges that it has read and is familiar with the provisions of California Civil Code
Section 1542, which is set forth below:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR
OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN
BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, OWNER HEREBY WAIVES THE PROVISIONS OF
SECTION 1542 IN CONNECTION WITH THE MATTERS THAT ARE THE SUBJECT
OF THE FOREGOING WAIVERS AND RELEASES.
OWNER'S Initials
7.3 Termination or Modification of Agreement for Default of O WNER. CITY may terminate
or modify this Agreement for any failure of OWNER to perform any material duty or
obligation of OWNER under this Agreement, or to comply in good faith with the terms of
this Agreement (hereinafter referred to as "default"); provided, however, CITY may
terminate or modify this Agreement pursuant to this Section only after providing written
notice to OWNER of default setting forth the nature of the default and the actions, if any,
required by OWNER to cure such defardt and, where the default can be cured, OWNER
has failed to take such actions and cure such default within sixty (60) days after the
effective date of such notice or, in the event that such default cannot be cured within such
sixty (60) day period but can be cured within a longer time, has failed to commence the
actions necessary to cure such default within such sixty (60) day period and to diligently
proceed to complete such actions and cure such default.
7.4 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement
only in the event of a default by CITY in the performance of a material term of this
Agreement and only after providing written notice to CITY of default setting forth the
nature of the default and the actions, if any, required by CITY to cure such default and,
where the default can be cured, CITY has failed to take such actions and cure such default
within sixty (60) days after the effective date of such notice or, is the event that such default
cannot be cured within such sixty (60) day period but can be cured within a longer time,
has failed to commence the actions necessary to cure such default within such sixty (60)
day period and to diligently proceed to complete such actions and cure such default.
8. LITIGATION.
8.1 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense,
including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and
employees from any claim, action or proceeding against CITY, its agents, officers, or
employees to attack, set aside, void, or annul the approval of this Agreement, or the
approval of any permit or entitlement granted pursuant to this Agreement. CITY shall
promptly notify OWNER of any claim, action, proceeding or determination included
within this Section 8.1, and CITY shall cooperate in the defense. II CITY fails to promptly
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notify OWNER of any such claim, action, proceeding or determination, or if CITY fails to
cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify,
or hold harmless CITY. CITY may in its discretion participate in the defense of any such
claim, action, proceeding or determination.
8.2 Environmental Assurances. OWNER shall indemnify, and hold CITY, its officers, agents,
and employees free and harmless from any liability, based or asserted, upon any act or
omission of OWNER, its officers, agents, employees, subcontractors, predecessors in
interest, successors, assigns and independent contractors for any violation of any federal,
state or local law, ordinance or regulation relating to industrial hygiene or to environmental
conditions on, under or about the Property, including, but not limited to, soil and
groundwater conditions, and OWNER shall defend, at its expense, including attorneys'
fees, CITY, its officers, agents and employees in any action based or asserted upon any
such alleged act or omission. CITY may inits discretion participate in the defense of any
such action.
8.3 Reservation of Rights. With respect to Section 8.1 and Section 8.2 herein, CiPY reserves,
the tight to either (1) approve the attorney(s) that the indetmnifying party selects, hires or
otherwise engages to defend the indemnified party hereunder, which approval shall not be
unreasonably withheld, or (2) conduct its own defense; provided, however, that the
indemnifying patty shall reimburse the indemnified party forthwith for any and all
reasonable expenses incurred for such defense, including attorneys' fees, upon billing and
accounting therefor.
8.4 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement,
OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and
covenants not to sue or otherwise challenge any land use approval affecting the Property
and in effect as of the Effective Date. Such agreement and covenant includes, without
limitation, the covenant against any direct suit by OWNER or its successor in interest, or
any participation, encouragement or involvement whatsoever that is adverse to CITY by
OWNER or its successor in interest, other than as part of required response to lawfiil orders
of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on
behalf of itself and its successors in interest, any claim or challenge to any land use
approval affecting the Property and in effect as of the Effective Date.
OWNER hereby acknowledges that it has read and is familiar with the provisions of
California Civil Code Section 1542, which is set forth below:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
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BY INITIALING BELOW, OWNER FIEREBY WAIVES THE PROVISIONS
OF SECTION 1542 IN CONNECTION WITH THE MATTERS THAT
ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES,
OWNER'S Initials
8.5 Survival. The provisions of Sections 8.1 through 8.4, inclusive, shall survive the
termination of this Agreement.
9. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit OWNER, in any matmer, at
OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement
thereon by any mortgage, deed of trust or other security device securing financing with respect to the
Property, CITY acknowledges that the lenders providing such financing may require certain Agreement
interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and
representatives of such tenders to negotiate in good faith any such request for interpretation or modification.
CITY will not unreasonably withhold its consent to any such requested interpretation or modification
providedsuch interpretation or modification is consistent with the intent and purposes of this Agreement.
Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render
invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless
otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part
thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein
for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in
the performance of OWNER's obligations under this Agreement,
(c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of
default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to
the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have
the right, but not the obligation, to cure the default during the remaining cure period allowed such party
under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant
to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property,
or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform
any of OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such
performance; provided, however, that to the extent that any covenant to be performed by OWNER is a
condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to
be a condition precedent to CITY's performance hereunder, and further provided that any sale, transfer or
assignment by any Mortgagee in possession shalt be subject to the provisions of Section 2.5 of this
Agreement.
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10. MISCELLANEOUS PROVISIONS.
10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof
shall be recorded with the Orange County Recorder by the Clerk of the City Council within
ten (10) days after the CITY enters into the Agreement, in accordance with Section 65868.5
of the Government Code, If the Parties to this Agreement or their successors in interest
amend or cancel this Agreement, or if the CITY terminates or modifies this Agreement as
provided herein for failure of the OWNER to comply in good faith with the terms and
conditions of this Agreement, the City Clerk shall have notice of such action recorded with
the Orange County Recorder.
10.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and
agreement of the parties, and there are no oral or written representations, understandings
or ancillary covenants, undertakings or agreements that are not contained or expressly
referred to herein. No testimony or evidence of any such representations, understandings
or covenants shall be admissible in any proceeding of any kind or nature to interpret or
determine the terms or conditions of this Agreement.
10.3 Severabilitv. 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 Agreement. Notwithstanding the
foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement,
including the payment of the Development Impact Fees set forth therein, are essential
elements of this Agreement and CITY would not have entered into this Agreement but for
such provisions, mid therefore in the event such provisions are determined to be invalid,
void or unenforceable, this entire Agreement shall be null and void and of no force and
effect whatsoever.
10.4 Interpretation and Governing Law. Tlus Agreement and any dispute arising hereunder
shall be governed and interpreted in accordance with the laws of the State of California,
with venue in Orange County. 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 Agreement, all parties having
been represented by counsel in the negotiation and preparation hereof.
10.5 Section Headings. All section headings and subheadings are inserted for convenience only
and shall not affect any construction or interpretation of this Agreement.
10.6 Sin r ar and Plural. As used herein, the singular of any word includes the plural.
10.7 Joint and Several Obligations. If at any time during the Term of this Agreement the
Property is owned, in whole or in part, by more than one OWNER, all obligations of such
OWNERS under this Agreement shall be joint and several, and the default of any such
OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no
OWNER of a single lot that has been finally subdivided and sold to such OWNER as a
member of the general public or otherwise as an ultimate user shall have any obligation
under this Agreement except as expressly provided for herein,
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10.8 Time of Essence, Time is of the essence in the performance of the provisions of this
Agreement as to which time is an element.
10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of
this Agreement by the other patty, or the failure by a party to exercise its rights upon the
default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
10.10 No Third Pady Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the parties and their successors and assigns. No other person shall
have any tight of action based upon any provision of this Agreement.
10.11 Force Maieure. 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: (t) strikes,
lockouts or labor disputes; (2) inability to obtain labor or materials or reasonable substitutes
therefor; (3) inclement weather which delays or precludes construction; (4) acts of God,
including but not linuted to earthquakes, or the public enemy or civil cormnolion;
(5) condemnation, (6) fire or other casualty; (7) shortage of fuel, electricity or natural gas;
(8) action or non -action of public utilities or of local, state or federal governments,
affecting the work, hncludung, but not limited to, any delays in the permitting process as a
result of the action or inaction or such governnental authorities; (9) criminal acts or acts
of terrorism; or (10) other conditions similar to those enumerated above which are beyond
the reasonable anticipation or control of such Party, or other causes beyond the Party's
reasonable control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, , provided that the
Term of this Agreement shall not be extended under any circumstances for more than five
(5) years.
10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party.
10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the
benefits of this Agreement shall inure to, all successors in interest to the Parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes
and constitute covenants running with the land, Each covenant to do or refrain from doing
some act hereunder with regard to development of the Property: (a) is for the benefit of and
is a burden upon every portion of the Property; (b) runs with the Property and each portion
thereof; and (c) is binding upon each party and each successor in interest during ownership
of the Property or any portion thereof,
10.14 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.
10.15 Jurisdiction and Venue. Any action at law or in equity arising under this 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.
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10.16 Proect as a Private Undertaking. It is specifically understood and agreed by and between
the parties hereto that the development of the Project is a private development, that neither
party is acting as the agent of the other in any respect hereunder, and that each patty is an
independent contracting entity with respect to the terns, covenants and conditions
contained in this Agreement. No partnership,johnt venture or other association of any kind
is formed by this Agreement. The only relationship between CITY and OWNER is that of
a government entity regulating the development of private property and the owner of such
property.
10.17 Further Actions and Instruments, Each of the Parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of Cho conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly
execute and file or record such required instruments and writings and take any actions as
may be reasonably necessary under the terms of this Agreement to carry out the intent and
to fulfill the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict
the exercise by CITY of its power of eminent domain.
10.19 Anent for Service of Process. hi the event OWNER is not a resident of the State of
California or it is an association, partnership or joint venture without a member, partner or
joint venturer resident of the State of California, or it is a foreign corporation, then in any
such event, OWNER shall file with the City Manager, upon its execution of this
Agreement, a designation of a natural person residing in the State of California, giving his
or her name, residence and business addresses, as its agent for the purpose of service of
process in any court action arising out of or based upon this Agreement, and the delivery
to such agent of a copy of any process in any such action shall constitute valid service upon
OWNER. If for any reason service of such process upon such agent is not feasible, then in
such event OWNER may be personally served with such process and such service shall
constitute valid service upon OWNER. OWNER is amenable to the process so served,
submits to the jurisdiction of the Court so obtained and waives any and all objections and
protests thereto.
10.20 Certificate of Compliance, At any time during the term of this Agreement, any lender or
either Party may request either Party to this Agreement to confirm that (1) this Agreement
is unmodified and in full force and effect (or if there have been modifications hereto, that
this Agreement is in Rill force and effect as modified and stating the date and nature of
such modifications); (2) to the best of such Party's knowledge, no defaults exist under this
Agreement or if defaults do exist, to describe the nature of such defaults; and (3) any other
information reasonably requested. Each Party hereby agrees to provide a Certificate to
such lender or other Party within thirty (30) days of receipt of the written request therefor.
10.21 Authority to Execute. The person or persons executing this Agreement on behalf of
OWNER warrants and represents that Ire or she/they have the authority to execute this
Agreement on behalf of his or her/their corporation, partnership or business entity and
warrants and represents that he or she/they has/have the authority to bind OWNER to the
performance of its obligations hereunder.
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IN WITNESS WHEREOF, this Development Agreement has been executed by the CITY of Santa Ana
and by OWNER.
Dated this day of . 2019.
ATTEST:
Daisy Gomez, Clerk of the Council
APPROVED AS TO FORM:
Sonia Ca valho, City Attorney
Lisa Storek, Assistant City Attorney
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THE CITY OF SANTA ANA
Kristine Ridge, City Manager
AC 2525 MAIN, LLC
a Delaware limited liability company
By: Chris Lee
Signature:___
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EXI-IIBlf "A"
(Legal Description of the Property)
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GXHHiIT "B"
(Map of the Property)
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EXHIBIT "C"
Development Plans
Development Plans and entitlement applications as presented in the City Staff Report Dated December
17, 2019 are incorporated herein by reference. Project entitlements and applications include, but may not
be limited to the following entitlements:
1. Development Agreement No, 2018-01
2. General Plan Amendment No. 2018-06
3. Amendment Application No. 2018-10
4. Specific Development No. 93
5. Final Enviromnental Impact Report No, 2018-01
55394.00002V31553187.13
Ordinance NS-2979
Page 40 of 59
EXHIBIT "D"
Development Impact Fees (Estimated)
The estimated amount of Development Impact Fees associated with the project based upon the site plan
documentation submitted as part of the Project Approvals include but are not limited to the following fees
and deposits; applicable sewer fee, street fee, storm drain fee, traffic fee, deposits, and all applicable fees
associated with demolition of existing structures, drainage, site development, and construction are based
on actual square footage of any commercial development and number of residential units.
Based on 256 Residential Units, the Development Impact Fees are estimated at:
Pee
Estimated Total
Sewer
$199,344
Capital Facilities Capacity
Charges
(Orange County Sanitation
District Charges)
$607,279
Storm Drain
$55,776
Traffic
$305,009
Parks & Recreation
$974,250
Fire Facilities Fee
$252,326
Santa Ana Unified School Fees
$1,050,895
Estimated Total
$3,444,878
55394.00002\3 t553187.13
Ordinance NS-2979
Page 41 of 59
EXHIBIT "E" - Reserved
#21124v3
Ordinance NS-2979
Page 42 of 59
EXTIIBIT 'T"
Santiago Park Access Rights (Conceptual)
J
#211240
Ordinance NS-2979
Page 43 of 59
EXHIBIT "G"
r Design G Improvements(Conceptual)
\ % �
G `r�\o,
SANTIAGOCREEK TRAIL ACCESS
\ r ^
q!A!
Ordinance z B
Page
EXHIBIT H
Park Santiago Security Patrol Area Map (Conceptual)
#21124A
Ordinance NS-2979
Page 45 of 59
EXHIBIT 1
Conditions of Discretionary Approvals
2525 N. Main - Project Approval Conditions:
The project is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with
applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California
Building Standards Code, and all other applicable regulations. In addition, it shall meet the conditions of
approval articulated in the sections below.
The Applicant or Owner, or Owner's successor(s) or assignce(s) (collectively, "Applicant") with the City's
consent, which shall not be unreasonably withheld, must comply with each and every condition listed below
The Applicant must remain in compliance with all conditions listed below throughout the life of the
development project. Failure to comply with each and every condition may also result hi breach of the
Development Agreement.
GENERAL CONDITIONS
L Project Description and Entitlements: Approval of this application is to build (Insert Final
Approved Project Description and specific entitlements) with such additions, revisions, changes or
modifications as required by the Planning Commission as articulated in Planning Commission
Resolution No. XXXX, dated XXXX. Subsequent submittals for this project shall be consistent
with the Planning Commission's approval and in compliance with the applicable land use
regulations of the Santa Ana Municipal Code and any applicable State law and the associated plans
presented to the Planning Commission on (Insert PC hearing date) and on file with the City.
2. Ackowledgment of Conditions of Approval. The Applicant shall file an Acknowledgment of
Conditions of Approval with the Planning and Building Agency within 30 days of final approval
of all resolutions. The property Applicant shall be required to record the Acknowledgment of these
Conditions of Approval with the Office of the Orange County Recorder and proof of such
recordation shall be submitted to the Planning and Building Agency.
3, Enforcement of Conditions. In case of violation of any of the conditions of approval of applicable
law, the property owner and tenant will be issued a Notice of Correction pursuant City regulations
or pursuant to applicable terms of the Development Agreement, the Property Maintenance
Agreement, and the CC&Rs if said violation is not remedied in accordance with the specified period
of time and/or subsequent violations of the conditions of approval and/or City law occurs within
ninety days of any Notice of Correction, the property owner shall be held responsible to reimburse
the City for all Staff time directly attributable to enforcement of the conditions of approval,
mitigation measures as stipulated in the various agreements and/or City law including but not
limited to, revocation of the herein approvals.
4. Project Plans. Project plans for the development shall be subject to a complete code compliance
review with the Planning and Building Agency when the plans are submitted for plan check and
shall comply with all applicable City of Santa Ana ordinances, regulations, and policies prior to
building permit issuance, including, but not limited to, the requirements established or authorized
by Chapter 8 (Building and Structures) and Chapter 41(Zoning) ofthe City of Santa Ana. Municipal
Code.
#21124v3
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Page 46 of 69
LEGAL
Indemnity. The Applicant shall defend, indemnify, and hold harmless the City of Santa Ana, its
agents, officers, or employees from any claim, action or proceeding against the City or its agents,
officers or employees to attack, set aside, void or annul an approval of the City, its legislative body,
advisory agencies or administrative officers the subject application. The City will promptly notify
the Applicant of any such claim, action or proceeding against the City and the Applicant will either
undertake defense of the matter and pay the City's associated legal costs, or will advance funds to
pay for defense of the matter by the City. Notwithstanding the foregoing, the City retains the right
to settle or abandon the matter without the Applicant's consent, but should it do so, the City shall
waive the indenni fication herein, except the City's decision to settle or abandon a matter following
an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights
herein.
6. Approval Time Period. The approval of the entitlements herein shall be valid for a time period
consistent with the Development Agreement.
IMPACT FEES
7. Project Development Impact Fees. The following Development Impact Fees shall be charged to
the Project. These fee amounts are estimated and will be subject to change based on the fee rate
applicable at the time of issuance of the Building Permit.
Fee
Estimated Total
Sewer
$199,344
Capital Facilities
Capacity Charges
(Orange County
Sanitation District
Charges)
$607,279
Storm Drain
$55,776
Traffic
$305,009
Parks & Recreation
$974,250
Fire Facilities Fee
$252,326
Santa Ana Unified
School Fees
$1,050,895
Estimated Total
$3,444,878
1. City Invoices, All invoices the Applicant has received from the City shall be paid to a zero balance
prior final approval for occupancy by the City or issuance of a Certificate of Occupancy.
PROJECT DESIGN AND OPERATIONS
#21124v3
Ordinance NS-2979
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2. The approved project is a nmlti-fancily apartment rental project. Any proposal in the future
to convert the rental units m condominium ownership, the Owner shall comply with the
requirements for a condominium project in accordance with localand state zoning and subdivision
requirements,
3. Unit Mix: Number of family units to be a minimum of thirty percent (30%) of the proposed units
to contain 2 & 3 bedrooms.
4. Onsite Property Manager. The Project shall include the provision to have 24-hour on -site
Property Management services and personnel. Up-to-date 24-hour contact information for the on -
site personnel shall be provided to the following City Agencies on air ongoing basis:
(a) Police Department
(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
5. Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency
Evacuation Plan (the "EEP") from City Police and Fire Protection agencies prior to final approval
for occupancy or the issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency
contact information for the on -site personnel shall be provided to the City on an ongoing basis and
the approved EEP shall be kept onsite and also be submitted to the following City Agencies:
(a) Police Department
(b) Fire Department
(c) Planning and Building Agency
(d) Community Development Agency
6. Crime Free Housing Plan. Applicant shall work with City Staff to develop a crhne free housing
policy, procedure, and design plan (the "CFH Plan") and shall subrnit and obtain approval from the
Planning and Building Agency of the CFH Plan prior to final approval for occupancy or the
issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and
administered by Property Management.'rhe approved CFH Plan shall be implemented, adhered to,
and be enforced by the Project at all times.
Omsite Parking Management Plan. Developer shall provide onsite parking for residents and
visitors of the Project and actively monitor the parking demand of the Project site. Developer shall
continually monitor and take appropriate measures to manage the parking demand of the Project
site to mitigate the use of offsite parking spaces on private or public properties and/or right-of-way.
Prior to final approval for occupancy or the issuance of the Certificate of Occupancy, Developer
shall submit and obtain approval from the PBA a Parking Management Plan (the "PMP") meeting
the requirements of this Condition. The approved PMP shall be adhered to and be enforced by the
Project at all times.
8. Good Neighbor Policy. The Applicant shall submit for review and approval by the Planning
Division a good neighbor policy implementation plan that will provide a process for the
neighborhood to report nuisance issues to the property management to help manage and address
potential nuisance issues including but not thrilled to noise, lighting, property maintenance, parking
overflow into the street and neighborhood, and landscape maintenance.
#21124v3
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9. Parldug Ratio. Number of spaces and onsite ratio of parking shall be a minimum of two (2) spaces
per unit.
10. Privacy along east property line. To ensure maximum privacy screening between the project site
and the residential uses along the eastern property, the Applicant is constructing an eight (8) foot
tall property line decorative block wall, In addition to this wall, and installation and maintenance
of all existing mature trees along the eastern property line, all windows facing the eastern property
with a direct line of sight to the adjacent properties bordering the eastern property line shall be
design incorporating opaque view obscuring glass.
11. Protect and Preserve Existing Mature Trees along the Eastern Property Line. To ensure
maximum privacy screening between the project site and the residential uses along the eastern
property, the Applicant shall protect and preserve all existing mature trees along the east property
line.
12. Protect and Preserve Existing Mature Trees on the Property not Located Along the East
Property Line. To the extent feasible, the Applicant shall protect and preserve all other mature
trees on the property. If the perseveration of the existing matures trees in not feasible because of
the location of the approved structures on the property, the Applicant shall work with Staff to
evaluate the feasibility of relocating the trec(s) to other locations on the property.
13. Edgewood Street Improvements. Only one emergency vehicular access may be permitted along
Edgewood Street. No other vehicular access or curb approach openings will be approved on tivs
street for the project. In addition, mature canopy and vertical specimen trees shall be planted along
the souther property line between the building and the adjacent sidewalk to integrate the building
with the adjacent single-family development across the street,
14. Property Line Wall. The project Applicant shall install an 8-foot tall property line block wall
along the entire eastern edge of the Project as part of the site construction and preparation process
and prior installation of the foundation. The design of the wall shall be approved by the Planning
Manager and shall be decoratively designed to include a mix of decorative materials, colors, and
decorative pilasters.
15. Santiago Park Entrance and Interface. If approved by the City Council, the Applicant shall
design the Project and residential units to also front onto Santiago Park, Main Street, and Santiago
Street entrance. The Project facade along Santiago Park shall be consistent with and reflect the
natural, current state of the Park and include articulation of the building facade to include open
garden areas. The conceptual design is as shown in Attaclunent I to these conditions. The Santiago
Park Entrance design shall be subject to the review and approval of the City Planning, Public
Works, and Parks and Recreation Directors to ensure compliance with the Agreement. Approval
shall not be unreasonably withheld, delayed or conditioned.
16. Green Project Features. Alternative Transportation and Energy Source, Resource Conservation,
and LEED Certification. The project shall obtain Silver Standard or better LEED equivalent and
shall at the minimum, incorporate bike lockers, bike sharing programing, electric vehicle charging
stations, rain capturing systems, grey water capturing systems, and to the extent feasible,
automobile sharing programing.
17. Landscape Plan. A Landscape Plan (including Irrigation) prepared by a licensed landscape
architect shall be submitted to the Planning Division prior to the issuance of building permits. The
#2II24v3
Ordinance NS-2979
Page 49 of 69
Irrigation Plan shall include an irrigation system layout with the location of controllers and points
of connection with data on valve sizes and gallons per minute (G.P.M.), the size and location of
sleeves and all spray heads, including the location of conventional systems and drip systems; an
irrigation legend with complete specifications; irrigation notes and construction details of all
assemblies and components; a recommended irrigation schedule, preferably on an amoral basis;
and a smmnary block on the initial page of submitted plans that will present the above information
clearly and accurately. The City reserves the right to require subsequent checks, or approval of the
landscape plans prior to issuance of a grading pennit.
18. Water Conservation. Landscaping shall comply with the City's water conservation ordinances in
accordance with SAMC Section and the State mandated Model Water Efficient Landscape
Ordinance (MWELO) 2015 update.
19, Installation. Landscaping for the project shall be complete in phases by building and shall be
installed and inspected prior to occupancy of units within that building. The developer shall be
responsible for maintaining all common area landscaping within the development.
20. Landscape Details. The landscape plan shall include a Plant Legend containing: plant symbol,
scientific name of plant material, common name of plant material, plant container size, and plant
spacing. Very low, low and medium water usage plant materials are encouraged. The applicant
shall construct a landscape planter_ along the eastern property line. In this eastern planter, a
combination of vertical and canopy specimen trees shall be planted with minimum size of 60 inch
box. The landscape plan shall provide a cross section showing the planter at time of planting, after
five (5) years and at full maturity. The cross section shall demonstrate the landscaping will
adequately screen the project from the adjacent residential uses along the eastern portion of the
Property.
21, Minimum Tree Box Size. The applicant shall install minimum 36 inch box trees, when planting
trees for all required trees along street setbacks, open space areas and shared parking areas. All
other tree sizes may be dependent on the location, species and spacing. The final landscaping is
subject to the review and approval of the Planning Manager.
22. Maintenance of existing site. The site and the public R.O.W. adjacent to any portions of the site
shall be maintained in a condition which is free of debris while the property is vacant and
undergoing development and during and after the construction, addition or implementation of the
entitlements granted herein. All trash and refuse shall be disposed of in dumpsters and be removed
from the premises on an -as needed basis. Any surplus construction materials shall be screened from
public view when not actually in use and be removed from the property upon completion of
construction activities. The removal of all trash, debris, and refuse, whether during or subsequent
to construction shall be done only by the properly owner, the Applicant or by a permitted waste
contractor, who has been authorized by the City to provide collection, transportation, and disposal
of solid waste from residential, commercial, and construction areas within the City.
23. On Going Property Maintenance. Subject to review and applicability by the Planning and
Building Agency, the Corrummnity Development Agency, the Public Works Agency, and the City
Attorney to ensure that the property and all improvements located thereupon are properly
maintained, Developer (and the owner of the property upon which the authorized use and/or
authorized improvements are located if different from the Applicant) shall execute a Property
Maintenance Agreement with the City of Santa Ana which shall be. recorded against the property
and which shall be in a form reasonably satisfactory to the City Attorney. The Property
#21124v3
Ordinance NS-2979
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Maintenance Agreement shall contain covenants, conditions and restrictions relating to the
following:
(a) Compliance with operational conditions applicable during any period(s) of construction
or major repair (e.g, proper screening and securing of the construction site; implementation of
proper erosion control, dust control and noise mitigation measure; adherence to approved project
phasing etc.);
(b) Compliance with ongoing operational conditions, requirements and restrictions, as
applicable (including but not limited to hours of operation, sectaity requirements, the proper storage
and disposal of trash and debris, enforcement of the Parking Management Plan, enforcement of the
Overcrowding Mitigation Implementation Plan, and/or restrictions on certain uses, etc.)
(c) Ongoing compliance with approved design and construction parameters, signage
parameters and restrictions as well as landscape designs and maintenance, as applicable;
(d) Ongoing maintenance, repair and upkeep of the property and all improvements located
thereupon at all times (including but not limited to controls on the proliferation of trash and debris
aboutthe property; the proper and timely removal of graffiti; the timely maintenance, repair and
upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the
timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation
fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and
related landscape improvements and the like, as applicable);
(e) If Developer and the owner of the property are different (e.g., if the applicant is a tenant
or licensee of the property or any portion thereof), both the applicant and the owner of the property
shall be signatories to the maintenance agreement and both shall bo jointly and severally liable for
compliance with its terms.
(f) The Property Maintenance Agreement shall further provide that any party responsible
for complying with its terms shall not assi&nm its ownership interest in the property or any interest
in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to
assume all of the duties and obligations and responsibilities set forth under the maintenance
agreement.
(g) The Property Maintenance Agreement shall contain provisions relating to the
enforcement of its conditions by the City and shall also contain provisions authorizing the City to
recover costs and expenses which the City may incur arising out of any enforcement and/or
remediation efforts which the City may undertake in order to cure any deficiency in maintenance,
repair or upkeep or to enforce any restrictions or conditions upon the use of the property slid a 50%
administration fee. The maintenance agreement shall further provide that any umeimbursed costs
and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use
restrictions shall become a lien upon the property in an amount equivalent to the actual costs and
expense incurred by the City and a 50% administration fee.
(h) The execution and recordation of the Property Maintenance Agreement shall be a
condition precedent to the issuance of final approval for any construction permit related to this
entitlement.
#21124v3
Ordinance NS-2979
Page 51 of 59
LIGIITING
24. Site and Building Lighting. The developer shall submit for review by the Planning Division and
the Engineering Department, the design and specifications for all proposed lighting fixtures
proposed for the buildings, drive aisles, parkways, parking areas, pathways, and surrounding areas
within the development. The fixtures shall be reviewed for quality, aesthetics, illumination values,
sustainability values such as LED and shall be decoratively and architecturally consistent with the
building design. The number, location, height, style and design shall be reviewed and approved by
the Planning Division and Engineering Department prior to issuance of building permits.
UTILITIES
25. Undergrouuding of Utilities. All utility service lines shall be underground. This includes all
existing above ground wires that cross over the property that feed adjacent properties.
26. Composite Utility Plan. The applicantshall submit a composite utility plan depicting the location
of all above ground utility appurtenances. The exact location of the equipment shall be approved
by the Planning Division, during tire plan check process, and shall be installed as per approved
plans. They shall not be allowed within a required parking, turnaround and landscape areas or on
any fagade facing a public street.
27. Screening of Mechanical Equipment. All mechanical equipment placement and screening shall
— be included on the development plan and shall be reviewed and approved by the planningDivision
prior to installation. Where practicable and as shown on the plans approved by the Planning
Commission in the come of obtaining the requested entitlements, mechanical equipment, heating,
ventilation, air conditioning (HVAC) units, satellite dish systems, solar panels, thermal solar
heaters, utility meters, above ground utility and fire safety connections will be, screened, located
out of public view or be architectural integrated m to the project design.
CONSTRUCTION
28, Construction Information. During construction, the Applicant will display signs visible to the
public from the public right-of-way with a contact number of the construction superintendant to
address any questions or concerns about demolition, grading, and construction activities including
dust, noise and vibration.
29. Vehicles and Equipment. All construction vehicles or equipment, fixed or mobile, operated
within 1,000 feet of an existing dwelling shall be equipped with properly operating and maintained
mufflers.
30. Warning Devices. Replace backup audible warning devices with backup strobe lights or other
warning devices during evening construction activity to the extent permitted by the California
Division of Occupational Safety and Health.
31, Pest Control, The Applicant shall have rodent and pest controls on site during demolition and
grading activities to mitigate impacts to the surrounding properties and neighborhood.
#21124v3
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32, Perimeter Pence. Prior to demolition and construction, a perimeter security fence not exceeding
seven feet in height, shall be installed around the project site. The fencing shall include a green
screen material or approved equivalent. The femce/screen material shall be properly maintained and
be tree of rips, tears, fraying, graffiti, and any other damage or vandalism.
33. Site Maintenance. The site and the public R.O.W. adjacent to any portions of the site shall be
maintained in a condition which is free of debris, trash, weeds and overgrown vegetation both
during and after the construction, addition or implementation of the entitlements granted herein.
All trash and refuse shall be disposed of in dumpsters and be removed from the premises on an as
needed basis. Any surplus construction materials shall be stored so as to be screened from public
view when not actually in use and be retrieved from the property upon completion of construction
activities.
34. Construction Traffic Management Plan. A truck/traffic construction management plan is
required for this project pursuant to the City's Public Works Department. All construction traffic
regarding the movement of heavy equipment and graded materials are limited to off peak hours,
This plan shall be approved prior to the issuance of Building Permits,
35, Construction Staging. During the construction process all related activities, including but not
limited to, loading, unloading, storage of equipment and materials, and parking of employee
vehicles are prohibited within the public R.O.W. All such activities shall be conducted only on the
project site and not in the public R.O.W. All staging areas and storage of equipment and materials
shall be set back from adjacent residential uses.
36. Construction hours. In accordance with SAMC Section 18314(e), Demolition, grading, and
exterior building construction activities shall be limited to the hours of between 7:00 a.m. and 8:00
p.m. Monday through Saturday. No construction activity shall be allowed on Sundays or federal
holidays. Compliance with this measure is subject to field inspection by City Staff,
37. Noise. All onsite activities shall comply with the City of Santa Ana Noise Ordinance at all times.
38, Fire Protection. Fire protection facilities; including access, must be provided prior to and during
construction.
39, Fencing. Prior to commencing demolition and site preparation activities, the project site shall be
secured with a fence to prevent unauthorized access to the site and the fence shall contain a
screening material to screen construction activities from view. The temporary screening fence shall
be installed to the satisfaction of the Economic Development Department and shall be maintained
in good condition (free of tears, holes, crack lines, debris, etc.) at all times. At the primary entrance
to the site, the screening material shall be reduced to a maximum height of four feet to provide
visibility into the site at all times and for public safety purposes. The project site shall also have a
minimum of one sign of quality material depicting the proposed development, which shall include
renderings, project opening date, and City Council information. The signs shall be designed and
installed to the satisfaction of the Economic Development Department and maintained in good
condition (free of tears, graffiti, holes, cracks, fading, debris, etc.) at all times.
40. Fence Coordination. Prior to the demolition of any existing property line walls and/or fences and
construction of a new property line concrete block wall(s), the developer shall make reasonable
efforts to coordinate and obtain approval from neighboring property owner($) to remove ally
existing wall(s) and/or fence($). Written authorization from the neighboring property owner shall
i121124v3
Ordinance NS-2979
Page 53 of 59
be provided for the removal of an existing wall and construction of a new shared property line wall
upon submittal for plan check.
41. Pre -Construction Meeting. Prior to the commencement of construction on the site, the developer
shall schedule a pre -construction meeting between the general superintendent or field
representative and the Planing Division to discuss the approved plans and construction
requirements.
ENGINEERING
42, The Applicant shall submit Improvement Plans prepared by a Registered Civil Engineer for public
works (off -site) improvements, and on -site improvements. Plan check fees shall be paid in advance.
43. An on -site grading and drainage plan shall be prepared and submitted to the City Engineer for
approval. Plan shall be 24" x 36", with elevations to nearest 0.01 foot, minimum scale 1" = 20'.
Plan shall be prepared by Registered Civil Engineer. Public works improvements may be shown
on this plan. Grading plan check fees must be paid in advance.
44. Hydrologic and hydraulic calculations demonstrating adequate site drainage from a l0-year return
- frequency storm (25-year frequency in sump areas) prepared by a Registered Civil Engineer shall
be submitted with the Grading Plan.
45. Driveway slope shall be a rainfmum slope ofore for asphaltand.5°% for concrete.- - - - - - - - - -
46. If utility cuts are excessive in the street the street must have a grid and overlay placed on it per the
satisfaction of the City Engineer.
47, All existing off -site public improvements (sidewalk, curb and gutter, driveways, and street paving)
at the development sitewhich are in a damaged condition or demolished due to the proposed work
shall be reconstructed to the satisfaction of the City Engineer, and per OCPFRD Standard Plan.
48. A City Encroachment (Public Works) permit shall be taken out for all work in public right-of-way
prior to start of work. All work shall be done in accordance with APWA Standards and to the
satisfaction of the City Engineer and must be completed prior to foal approval for occupancy or
the issuance of Certificate of Occupancy.
49. A bond or surety device shall be posted with the City in an amount and type sufficient to cover the
amount of off -site work to be done, as approved by the City Engineer.
50. Pad certification by the Design Civil Engineer and Soil Engineer is required prior to the
commencement of structural construction.
51. Final compaction report prepared by a qualified Soil Engineer shall be submitted to the City
Engineer for review and approval prior to the commencement of structural construction.
52. Prior to the issuance of any grading or building permits or prior to recordation upon subdivision of
land if determined applicable by the City Building Official, the applicant shall submit to the City
for review and approval a Final Water Quality Management Plan (WQMP) that:
#21124v3
Ordinance NS-2979
Page 54 of 59
• Addresses Site Design BMPs (Best Management Practices) such as minimizing impervious
areas, maximizing permeability, minimizing directly connected impervious areas, creating
reduced or "zero discharge" areas, and conserving natural areas.
• incorporates the applicable Routine Source Control BMPs as defined in the DAMP,
• Incorporates Treatment Control BMPs as defined in the DAMP.
• Generally describes the long-term operation and maintenance requirements for the Treatment
Control BMPs.
• Identifies the entity that will be responsible for long-term operation and maintenance of the
Treatment Control BMPs.
• Describes the mechanism for finding the long -tern operation and maintenance of the
Treatment Control BMPs.
#211240
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Page 65 of 59
Attachment 1
Building Articulation and Setback Along Santiago Park (Conceptual)
#211203
Ordinance NS-2979
Page 56 of 59
EXHIBIT "P'
Security Fencing
#211240
Ordinance NS-2979
Page 57 of 59
Exhibit J
Ordinance NS-2979
Page 58 of 59
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Ordinance NS-2979
Page 59 of 59