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HomeMy WebLinkAboutRELATED COMPANIES OF CALIFORNIA, THE AND GRIFFIN REALTY CORPORATION, A CALIFORNIA CORPORATION - 2009 A-2009-208 INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL PREDEVELOPMENT AGREEMENT - DISTRICT MASTER DEVELOPMENT PLAN nATr:. \-'5.../0 J a~ +. ~'-: Z;<t G ~ \J " ~ ~ This Predevelopment Agreement ("Agreement") is entered into as of December L, 2009 (herein referred to as the "Effective Date") by and between Community Redevelopment Agency of the City of Santa Ana (the "Agency"), the City of Santa Ana (the "City") and The Related Companies of California, LLC, a California limited liability company and Griffin Realty Corporation, a California Corporation (jointly, the "Developer") on the terms and provisions set forth below and with reference to the following. RECITALS A. The Agency is studying redevelopment of a portion of its merged project area consisting of approximately 94 acres (the "District") in conjunction with studies being undertaken by the City for new transportation projects in and around the Santa Ana Regional Transportation Center (the "SARTC"). The District including the SARTC are depicted in Exhibit A hereto which is incorporated herein by this reference; and, B. The Developer has submitted a proposal to assist the Agency in strategic planning with respect to the District; and, C. The Developer also seeks to be designated as the developer of development parcels within the District owned or to be acquired by the Agency or the City; and, D. Under separate agreement the Agency and Developer have entered into an predevelopment agreement covering approximately 48 parcels of land constituting approximately 6.76 acres owned by the Agency within the western part of the District (the "Agency Parcel Agreement") which is not part of this Agreement. NOW, THEREFORE, the Agency and the Developer hereby agree as follows: 1. Nature and Identity of the Developer The Developer is currently composed of The Related Companies of California, LLC and Griffin Realty Corporation.Subject to the terms of Section 15 hereof, this Agreement may be assigned to a single purpose developer entity controlled by Related and Griffin. 2. City and Agency Planning Process. The Agency and the City intend to undertake a strategic transportation and land use planning process for the District. The City has obtained funds from the Orange County Transportation Authority (the "OCT A") as part of the "Go Local" transportation project. 3. Role of Developer. The Developer agrees to: A. Work with the Agency and the City to conduct design and financial feasibility studies to determine viable options for District development and enhancement opportunities in the context of the transportation plans to be developed with the OCT A and/or other transportation funding. B. Spearhead community outreach effort, with input and support from Agency/City staff. C. Develop "District Strategy" which: i. Enhances the neighborhood by creating a true sense of place and by providing a connection between the downtown and the growing transit corridor; ii. Creates a sustainable, walkable neighborhood with internal transit and a mix of uses and incomes, where market rate and affordable housing are physically indistinguishable; iii. Identifies neighborhood retail/service opportunities; iv. Identifies needed infrastructure; v. Links neighborhoods and businesses with public transit; vi. Enhances public spaces and streets; and, vii. Contains a viable implementation strategy, including a schedule of performance; D. Refine the strategy and provide such other information and assistance as necessary and deemed reasonably appropriate by the Agency and/or its staff in order to fulfill the objectives of this Agreement. 4. Agency/City Owned Sites. The Agency and the City own a number of parcels identified in Exhibit A within the District (excluding those covered by the Agency Parcel Agreement) including the SARTC, hereinafter referred to the "Agency/City Owned Sites." 2 5. Potential County Acquisition Site. Within the boundaries of the District is the County of Orange-owned property (the "County Parcels") which are depicted on Exhibit A. For purposes of this Agreement, the County Parcels shall be considered Agency/City Owned. 6. Further Acquisitions The parties agree that either party may negotiate with the owners of any privately owned property within the District. If the Agency or City acquire any property within the District, the property shall become an Agency/City Owned Site and become subject to Section 4 and Section 7 of this Agreement. If the Developer acquires any such property, Developer agrees that it shall be developed in accordance with any master development plan promulgated for the District hereunder. This provision shall not apply to those parcels located at 801-809 E. Santa Ana Boulevard currently owned by the City of Santa Ana which may be transferred to the Agency for development of special needs housing by Mercy House Charities. 7. Exclusive Negotiations During the term of this Agreement, the Agency and City agree that they shall not negotiate with anyone other than the Developer regarding potential development of the Agency/City Owned Sites. 8. Initial Term. There shall be an initial term of three (3) years (the "Initial Term".) During the Initial Term, the parties shall cooperate in the strategic planning process with the intent of producing a mutually agreeable and approved Master Development Plan. By mutual agreement, the Initial Term may be extended in six month increments. 9. Extended Term-Master Development Plan Approval If, at or before the end of the Initial Term, the Agency and Developer complete a master development plan for the District, which is approved by the Agency, the term of this Agreement shall be extended for the greater of two (2) years or a period mutually agreeable to the parties (the "Extended Term"), during which time the parties will negotiate towards agreement(s) for disposition and development of Agency/City Owned Sites within the District. If, however, such agreement(s) is not reached for at least one Agency/City Owned Site for any reason whatsoever, this Agreement shall terminate and 3 the Developer shall be entitled to reimbursement of its third party costs in accordance with Section 11 and Section 12, below. 10. Environmental Requirements Certain Federal environmental requirements under the National Environmental Policy Act of 1969 ("NEPAli) and State and local environmental requirements under the California Environmental Quality Act ("CEQA") may be applicable to the proposed development. The Developer agrees to supply information and otherwise assist the Agency, as requested, to determine the environmental impact of the proposed development, and to allow the Agency to prepare, at the Agency's sole cost and expense, such environmental documents, if any, as may be needed to be completed for the project pursuant to NEPA and/or CEQA. It is further agreed that, prior to entering into any final agreement(s) with the Developer, the Agency and/or City must approve any and all NEPA and/or CEQA documents that may be applicable to the development and that nothing in this Agreement in any way constitutes nor shall it be interpreted to be a contractual obligation committing the Agency and/or the City to undertake the development. 11. Reimbursements. The City and Agency acknowledge that in carrying out its obligation to participate in the strategic planning process for the District, the Developer shall expend resources of its staff as well as incur out of pocket expenses of consultants, contractors and advisors. In the event of termination of this Agreement prior to execution of agreements for disposition and development of any properties within the District, Agency and City agree to reimburse Developer those third party costs determined in accordance with Section 12, below. 12. Third Party Costs. Third Party Costs shall mean those amount actually paid or obligations incurred for work actually done by those consultants, contractors and advisors of the Developer listed in Exhibit B attached hereto and made a part hereof by this reference. The total maximum Third Party Costs that may be owed by Agency and paid to Developer pursuant to this Agreement shall not exceed $100,000.00. 13. Liquidated Damages. DEVELOPER AND AGENCY AGREE THAT SHOULD AGENCY (1) TERMINATE THIS AGREEMENT, (2) FAIL TO APPROVE A MASTER DEVELOPMENT PLAN WITH THE DEVELOPER BY THE EXPIRATION OF THE 4 INITIAL TERM OR (3) BREACH ANY OBLIGATION OF THIS AGREEMENT, THE DAMAGES TO THE DEVELOPER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN DUE TO FLUCTUATION OF MARKET CONDITIONS AND THE INABILITY TO ASCERTAIN LOST OPPORTUNITY COSTS, AND THAT THEREFORE, THE SUMS SET FORTH ABOVE ARE A REASONABLE ESTIMATE OF THE DAMAGES TO THE DEVELOPER, SUCH DAMAGES INCLUDING COSTS OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT AND ANY AGREEMENT, THE LAND USE ENTITLEMENTS AND NEGOTIATIONS FOR PURCHASE OF OTHER PROPERTY IN THE DISTRICT, IF ANY OTHER COSTS INCURRED IN CONNECTION HEREWITH, AND LOST OPPORTUNITY COSTS OF THE DEVELOPER. DEVELOPER AGREES THAT IT SHALL BE ENTITLED ONLY TO THE PREC DING LIQUIDATED DAMAGES AS ITS SOLE REMEDY. ~Developer's Initials 14. No Development Commitment Made. A. By its execution of this Agreement, the Agency is not committing itself to or agreeing to undertake: (a) financing, acquisition or disposition of the development; or (b) any other acts or activities requiring the subsequent independent exercise of discretion by the Agency, the City or any agency or department thereof, and the Developer has no reasonable expectation that such commitments will be made in the future. The parties recognize that one or more of the conditions to the Developer's development proposal to formulated during the negotiating period may fail to be met as a result of negotiations, subsequent studies, reviews and proceedings involving the exercise of discretion by the Agency, the City or any agency or department thereof. This Agreement does not constitute a disposition of property by the Agency or the City and does not require a public hearing. Execution of this Agreement by the Agency is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by the Agency and the City as to any Disposition and Development Agreement and all permits, approvals, decisions and/or proceedings in connection therewith. 15. Non-Assignability/No Removals or Substitutions The make-up of the Developer is a critical element of the Agency's willingness to enter into this Agreement. Therefore any attempted partial or full assignment, or the removal of either principal member from the Developer shall be a material breach by the Developer entitling the Agency to terminate this Agreement. Likewise, no person or entity shall become a principal of the Developer without the written consent of the Agency Board of Directors, as determined in their sole and absolute discretion. The Developer intends to form a limited liability company or similar entity for the purposes of carrying out this Agreement as well as enter into the 5 agreement(s) referenced in Section 2 hereof. Developer shall have the right to assign this Agreement to any entity or entities in which The Related Companies of California, LLC and Griffin Realty Corporation, directly or indirectly, are the controlling members. Prior to any such assignment, Developer shall provide evidence to the Agency's Executive Director confirming the foregoing control requirement, and such assignment shall be subject to the Agency's Executive Director's confirmation that the assignee satisfies such control requirement. Developer shall have the right to select an entity or entities to be party to the Disposition and Development Agreement(s) executed as a result of this Agreement, provided the entity or entities meet the controlling membership requirements of this Section, subject to the same confirmation by the Agency's Executive Director. 6. Miscellaneous A. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. B. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth hereinabove. ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA ~~ CYNTHIA J. NE SON Executive Director a~//7. C2-- Lm~' D. ~ti ,;. MARIA D. HUIZAR Secretary DAVID N. REAM CITY MANAGER [Signatures Continued On Next Page] 6 DEVELOPER By: William A. Witte, President Griffin Realty Corporation, A Cal' ornia Corporation 7 EXHIBIT A (Map of District) <( ..... :0 .c x w 8 EXHIBIT B List of Developer's consultants 1. LAB Holding, LLC 2. City Ventures 3. William Hezmalhalh Associates, Inc. 4. Patricia Smith, ASLA 5. Fuscoe Engineering, Inc. 6. Green Dinosaur 7. Arelleno & Associates 8. Bocarsly Emden Cowan Esmail & Arndt, LLP 9. Concord Group The list set forth in this Exhibit may be expanded to add additional consultants provided Executive Director of Agency approves in writing Developer's proposed new consultant. 9