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HomeMy WebLinkAboutNS-1795 - Approving a Development Agreement Between the City and Santa Fe Land Improvement CompanyORDINANCE NO. NS- 1795 REL :adg 8/27/85 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND SANTA FE LAND IMPROVEMENT COMPANY WHEREAS, California Government Code Sections 65864- 65869.5 authorize any city to enter into a development agree- ment with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, Santa Fe Land Improvement Company is the owner of certain real property in the City of Santa Ana and has re- quested that the City of Santa Ana enter into a development agreement for the development of such property; and WHEREAS, the PlanninG Commission of the City of Santa Ana, after public hearing, duly noticed in the manner required by law, has recommended approval of such development agreement; and WHEREAS, the City Council of the City of Santa Ana has held a public hearing on such development plan, duly noticed in the manner required by law; NOW, THEREFORE, the City Council of the City of Santa Ana does ordain as follows: 1. That certain Development Agreement between the City of Santa Ana and Santa Fe Land Improvement Company, in the form attached hereto as Exhibit A and incorporated herein by reference, is hereby approved. 2. In approving the said Development Agreement, the City Council finds and determines that the provisions of said agreement are consistent with the General Plan of the City of Santa Ana, and that there are no applicable specific plans. ORDINANCE NO. NS- 1795 PAGE TWO 3. The Mayor is authorized to execute said Devel- opment Agreement following its execution by. Santa Fe Land Company, and the Clerk of the Council to attest to the same. 4. The Clerk of the Council is directed to cause the said Development Agreement to. be recorded in the official records of Orange County, California, following the effective date of this Ordinance and its execution by both parties. ADOPTED this 17th day of September , 1985. ATTEST: ce C. Guy / f'~ k of the CounCil%-' Daniel E. Griset Mayor COUNCILMEMBERS: Griset Aye Acosta Aye Hart Aye Johnson Aye Luxembourge r Aye McGuigan Aye Young A.ye APPROVED AS TO FORM: ~ .dl~Qr~t~per . RECORDING REQUESTED BY, AND WHEN RECORDED RETURN Clerk of the Council City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 EXHIBi A TO: DEVELOPMENT AGREEMENT entered (the "effective date") municipal corporation COMPANY, a California Recitals: following authorize THIS DEVELOPMENT AGREEMENT ("Agreement") is made and into as of this day of , 1985 by and between the CITY OF SANTA ANA, a ("City") and SANTA FE LAND IMPROVEMENT corporation ("SFLI"). This AGreement is entered into 6n the basis of the facts, understandings, and intentions of the parties: A. California Government Code Sections 65864-65869.5 the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property. B. Pursuant to California Government Code Section 65865, the City has adopted its Resolution No. 82-98, establish- ing procedures and requirements for consideration of such devel- opment agreements. C. SFLI is the owner of real property within the jurisdiction of the City and has requested the City to enter into a development agreement concerning such real property. D. The development and use which SFLI proposes in ~ connection with the real property have been extensively reviewed and considered by the City and its officers, agencies and dJ- partments and such proposed development and use have been modi- fied to accommodate the City's recommendations and suggestions in order to protect the public's interest and to enhance the desirability, from the public's perspective, of such proposed development and use. E. The development and use which SFLI proposes in connection with the real property will provide substantial public benefits and help the City attain certain public objections, in~luding development of a major business center within the City which will provide a lonG-term source of employment oppor- tunitips and revitalization of the economic base of the com- munity. Furthermore, SFLI's proposed development and use will provide the City with additional revenue which will enhance the City's ability to implement its general plan. F. SFLI will be required to make substantial com- mitments and will be confronted with and incur substantial risks and uncertainties in developing the real property. Those risks and uncertainties include, without limitation, (1). expenditures for construction of the Public Improvements (defined in Paragraph 9) well in advance of the cpmpletion of the private income- producing components of the developmeht; (2) expenditures for necessary predevelopment planning, engineering and design work; and (3).potential for loss of total net anticipated revenues to SFLI if the City were to halt any part of the development at a~ time or if SFLI were required to comply with newly adopted land use rules, regulations or policies. Due to the magnitude o~ those development risks and uncertainties, SFLI would not have agreed to commit itself to starting the development or to providing the Public Improvements, unless the City entered into this AGreement. G. SFLI desires to enter into this development agreement in order to acquire vested development rights pursuant to currently prevailing land use rules, regulations and policies and to assure its ability to determine the resources necessary to complete the development and to complete such development as. currently proposed and approved by the City. H. The City desires to and does hereby exercise its governmental authority in connection with the development and use of the real property by entering into this Agreement and has determined that this Agreement is consistent with the City's general plan and the public's interest, and the findings and declarations set forth in California Government Code Section 65864. I. On City adopted Ordinance NO. NS-__ , 1985, the City Council of the , approvinG this AGreement. COVENANTS, NOW, THEREFORE, the parties agree as follows: 1. Incorporation of Recitals.. The foregoing Recitals set forth in paragraphs A through I are incorporated herein as if set forth at this point. 2. Term. The term of this Agreement shall commence on the effective date and shall continue for a period of ten (10) years unless sooner terminated pursuant to the provisions hereof. 3. Description of Property. The real property (the "Property") which is the subject of this Agreement is located in the southern portion in the City of Santa Aha and is more particu- larly described in Exhibit 1 and depicted on Exhibit 2 attached hereto and incorporated herein by this reference. 4. Interest of SFLI. Property. SFLI is the owner in fee of the 5. Binding Effect of Agreement. ment shall bind, and its benefits inure interest to the parties hereto. The burdens of this Agree- tO, the successors-in- 6. Relationships of the Parties. The relationship of SFLI and the City is exclusively that of Parties to this Agreement. Neither SFLI nor the City is the agent .or principal of the other. e 7. use of the Property. SFLI agrees to limit the use~f the Property to those uses specified in Exhibit 3,' attached hereto and incorporated herein by this reference. City agrees to allow such uses on the Property, subject to the right of the City to take appropriate action to abate any public nuisance and to enforce all laws designed for the protection of the public health and safety. 8. Development Standards. SFLI agrees to develop and maintain the Property in accordance with the following standards (hereinafter referred to collectively as "Development Standards"): (a) Standards pertaining to density and of land use and to building size set forth in Exhibit 4, hereto and incorporated herein. (b) General development and design standards, including standards pertaining to building height, set forth in Exhibit 5, attached hereto and incorporated herein. intensity attached City agrees to allow development of the site in accordance with the abovesaid Development Standards. The Development Standards have been extensively reviewed by the City and its officers, agencies, and departments, and have been revised to accommodate the City's recommendations and suggestions in order to protect the public's interest and to enhance the desirability, from the public's perspective, of the Development Standards. 9. Dedications of Land for Public Purposes. SFLI ag~es to dedicate land to the City for street purposes in accordance with the requirements and conditions of Parcel Map No. 85-2h6, at no cost to the City. 10. Mitigation Measures. SFLI agrees that all develop- ment, maintenance and use of the Property shall be carried out in compliance with the mitigation measures specified in the Negative Declaration approved by the City for this Agreement pursuant to the California Environmental Quality Act. 11. Vestin~ of Development Rights. SFLI is hereby authorized and vested with the right to construct one or more works of improve- ment ("Project or Projects") upon the Property in compliance with the density, height, size, access, parking, and other components of the Development Standards. The City and its officers, agencies and departments shall fully cooperate with SFLI, to the extent permitted by law, to complete such Project or Projects. 12. Construction of Certain Public Improvements. SFLI shall complete construction of those certain public improvements and facilities (the "Public Improvements") described in Exhibit 6 attached hereto and incorporated herein by this reference, prior to January 1, 1987, except as otherwise provided in said Exhibit. That portion of the Public Improvements which is appurtenant to or which serves any parcel created within the Property shall be substantially completed prior to or upon occupancy of any building constructed on such parcel. The entire cost of the construction of the Public Improvements shall be borne by SFLI%. subject to such reimbursement as is provided for in that certain "Agreement for the Sale and Purchase of Real Property" dated July 10, 1985, between the Community Redevelopment Agency of the City of Santa Ana and SFLI. such agreement shall be deemed to be incorporated herein by reference and made a part of this Agreement. In addition, SFLI shall have the option to extend Lyon Street south to St. Gertrude Place provided SFLI concur- rently improves St. Gertrude Place between Grand Avenue and Lyon Street to arterial street standards as approved by City's Executive Director, Public Services Agency. 13. Waiver of Certain Fees. The City agrees to waive and does hereby waive the payment by SFLI of the following fees in consideration of SFLI'S construction of the Public Improvemen~s= (a) Drainage area fees imposed by sections 34-191 through 34-195 of the Santa Ana Municipal Code ("SAMC"). (b) Water main charges and assessments imposed by SAMC section 39-22 insofar as they would apply to water service from water system improvements constructed by SFLI as part of the Public Improvements. (c) Sewer connection fees imposed by SAMC section 39-53 insofar as they would apply to connections with sewer system improvements constructed by SFLI as part of the Public Improve- ments. (d) The transportation system improvement fee imposed by SAMC section 8-44, but only to the extent of the ~ actual construction costs incurred by SFLI in the construction of street improvements on streets which are not contiguous to the Property as part of the Public Improvements. 14. Effect of Agreement on Land Use Regulations. The parties hereby agree that, for the term of this Agreement, the rules, reg- ulations and official policies of the City governing the design, improvement and construction standards and specifications applicable to development of the Property shall be those rules, regulations and official policies in force on the effective date of this Agreement, except for those rules, regulation or official stand- a~ds which conflict with the Development Standards established by this Agreement, and except for changes in the building codes and construction specifications, occurring from time to time, which do not conflict with said Development Standards, and which are generally applicable to all other applicants in the City. SFLI shall pay those generally applicable processinG, inspection and similar fees and charges required by the City in connection with development of the Property in the amounts in effect at the time payment is made, except as specifically waived herein. This Agreement does not prevent the City in subsequent actions applicable to the Property from applying new rules, regulations and policies applicable to the Property which do not conflict with the Devel- opment Standards or the rules, regulations and policies in force on the effective date of this Agreement, or unreasonably impede the development and construction of the Project. 15. Periodic Review of Compliance with Agreement. The City shall review this Agreement at least once every twelve (12) months from the date this Agreement is executed. During each periodic review by the City, SFLI shall demonstrate good faith compliance with the terms of this Agreement. SFLI agrees to furnish such evidence of good faith compliance as the City in a reasonable exercise of its discretion may require. Evidence of good faith compliance may include, but is not necessarily limited to, the following: (i) compliance with the requirements of the Develop- ment Standards, and (ii) compliance with the requirements of Paragraph 12 hereof. 16. Amendment or Cancellation of A~reement. This Agreement may be amended or cancelled in whole or in part only by mutual consent of the parties or their successors-in-interest, in the manner provided for by California Government Code Sections 65865.1, 65867, 65867.5 and 65868. 17. Hold Harmless. SFLI agrees to hold harmless the City, its officers, agents, employees and representatives from liability for damage or claims for damage for personal injury and property damage which may arise from the direct or indirect operations of SFLI or those of its contractors, subcontractors, agents, employees or other person acting on its behalf in connection with the devel- opment and use of the real property. City agrees to hold harmless SFLI,' its officers, agents, employees, and representatives from liability for damage or claims for damage for personal injury and ® property damage which may arise from the direct or indirect ac~ons of the Cit~ or its officers, agents, employees or other persons acting on its behalf in connection with the development of the real property (exclusive of SFLI, its officers, agents, employees, contractors and subcontractors). 18. Events of Default. A. SFLI shall be deemed to be in default under this Agreement in the event that City's City Council finds and deter- mines, on the basis of substantial evidence, following a a periodic review under the procedures provided under Government Code Section 65865.1 and Paragraph 15 hereof, that SFLI has not complied in good faith with one or more of the material terms or conditions of this Agreement. this Agreement ing events: The City shall be deemed to be in default under upon the occurrence of one or more of the follow- (i) The imposition by the City upon SFLI of any rule, regulation or official policy governing the permitted uses, density, maximum height and size of proposed structures, provisions for reser- vation or dedication of land for public purposes, access, required parking or the design, improvement and construction standards and specifications applicable to the development of the Property, which 10. differ in any material respect from those rules, regulations and official policies in effect as of the effective date of this Agreement, except as otherwise expressly permitted herein. The City shall not be deemed to be in default by reason of subsequent change of laws or regulations of another local agency not created or controlled by City which prevents or precludes compliance by City or SFLI with this Agreement; the City agrees not to initiate or promote any such changes without SFLI's express written consent and will use its best efforts to oppose any such changes. (ii) The failure by the City to perform any covenant or obligation required by this Agreement. C. In the event of a default as defined in subpara- graph (A) or (B) of this Paragraph 18, the non-defaulting party shall issue to the other party a written "Notice of Default" specifying the grounds therefor and all facts demonstrating that a default has occurred. The party receiving the Notice of Default shall have thirty (30) days to respond in writing to the Notice of Default indicating that the party is contesting the existence of the default. If a response to the "Notice of Default" has not been received in the offices of the party alleg- ing the default within the prescribed time'period, the Notice of Default shall be conclusively presumed to be valid and the 11. defaulting party such default. that it cannot party shall be shall have an additional thirty (30) days to,ute However, if the nature of such default is such be cured within thirty (30) days, the defaul%ing permitted to begin to cure the default within said thirty (30) days and diligently continue until the default is cured. In the event that the default is not cured or the cure has not begun within thirty (30) days, as appropriate, the non- defaulting party may pursue any remedy afforded by Paragraph 19. If a Notice of Default is contested, the parties shall have up to sixty (60) days to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Default. If the parties are not able to arrive at a mutually acceptable resolution of the matter(s), the party alleging the default may elect to pursue any remedy afforded by Paragraph 19. However, if the party alleg- ing a default which has been contested and not resolved elects to terminate the Agreement pursuant to Paragraph 19, the other party may pursue any remedy permitted at law or in equity includ- ing, but not limited to actions for specific performance and/or declaratory relief. 19. Consequences of Default. In the event of a default by either party which is not cured within the time prescribed by Paragraph 18, the non-defaulting party may undertake one or more of the following remedies: A. Terminate this Agreement by written notice stating the grounds for such action; 12. B. Institute an action for specific performance o~~' this Agreement which, the parties hereby agree, shall be avail- able notwithstanding (1) the availability of a remedy at law, and (ii) any change in the applicable general or specific plan, zoning, subdivision or 6uilding regulations which alter or amend the rules, regulations lng permitted uses of land, density, design, construction rive date of adopted by the City or policies govern- improvement or standards and specifications in force on the effec- this Agreement; and C. Pursue any other remedy permitted at law or in equity; provided however, that no cause of action for damages shall lie against either party to this Agreement as a consequence of default. 20. Waiver. A waiver of any default or failure to enforce any provision of this Agreement by either party shall not con- stitute a waiver of any subsequent default or prevent the enforce- ment of the same or other provision at any subsequent time. 21. Force Majeure. obligations of the SFLI period of time that any The term of this Agreement and the hereunder shall be suspended during the cause or event not within SFLI'S control (but excluding financial inability) prevents SFLI from performing or fulfill%ng its obligations, included but not limited to the following: acts of God, strikes, lock,outs or other labor dis- putes, acts of public enemies, orders, moratoria, injunctions, 13. re ulations or restraints of any kind imposed or ordered by the City, the County of Orange, the State of California, the Unit2~ States of America, or any other public agency or authority,. insurrections, riots, adverse weather conditions, earthquakes, fires, floods, explosions, and unavoidable casualties. The term of this Agreement and the obligations of the SFLI hereunder also shall be suspended for the period of time that any litigation concerning the use Or development of the subject property is pending. 22. Notices. Unless otherwise specifically provided in writing, all notices, demands or other communications given here- under shall be in writing and shall be deemed to have been deliv- ered upon actual pe'rsonal delivery or as of three (3) business days after mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to City~ Director of Community Development & Housing City of Santa Ana 20 Civic Center Plaza, M-25 Santa Ana, California 92701 Copy: If to SFLI: Copy: City Attorney City of Santa Ana 20 Civic Center Plaza, P.O. Box 1988 Santa Ana, CA 92701 M-29 Mr. Jeffrey K. Gwin Santa Fe Land Improvement Company 3230 East Imperial Suite 100 Brea, California 92621 General Attorney, California Santa Fe Southern Pacific 5200 East Sheila Street Los Angeles, CA 90040 A party may change other party, and thereafter notices such new address. 23. Severability. its address by giving notice in writing to ~e shall be delivered or sent to In the event that any provision of this Agreement shall be held to be invalid by a court of competent jurisdiction, such holding shall not invalidate or render unenforce- able any other provision hereof. 24. Construction. This AGreement shall be interpreted pursuant to the laws of the State of California. This Agreement is the product of negotiation and has been drafted by the mutual efforts of both parties and, in the event of an ambiguity, it shall be construed accordingly. 15, 25. Time of the Essence. Time is of the essence for provision of this Agreement of which time is an element. IN WITNESS WHEREOF, the parties hereto have caused this Development Agreement to be executed as of the effective date. CITY OF SANTA ANA, a municipal corporation ATTEST~ By Daniel E. Griset Mayor Janice C. Guy Clerk of the Council APPROVED AS TO FORM: SANTA FE LAND IMPROVEMENT COMPANY, a California corporation Jeffrey K. Gwin Director of Development 16.