HomeMy WebLinkAboutNS-3071 - Approving Development Agreement No. 2023-02 for Mixed-Use Development...ORDINANCE NO. NS-3071
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING DEVELOPMENT
AGREEMENT NO. 2023-02 FOR A MIXED -USE
DEVELOPMENT, KNOWN AS THE RELATED BRISTOL
SPECIFIC PLAN PROJECT, AT 3600 BRISTOL STREET
BETWEEN THE CITY OF SANTA ANA AND GREENVILLE
RANCH LLC, BSG WEST BRISTOL LLC, AND MCG
BRISTOL WEST LLC
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines,
and declares as follows:
A. Steven Oh, with RCR Bristol, LLC ("Applicant"), on behalf of Greenville
Ranch LLC, BSG West Bristol LLC, and MCG Bristol West LLC ("Property
Owners"), is seeking to construct a mixed -use development ("Project"),
known as the Related Bristol Specific Plan Project, at 3600 Bristol Street
("Project Site").
B. The Project entails, among other things, (1) demolition of the existing
sixteen (16) structures on the Project Site; (2) the establishment of a new
Related Bristol Specific Plan (SP No. 5) and a change of zone for the
Project Site to the new Related Bristol Specific Plan (SP No. 5) designation;
(3) redevelopment of the Project Site into 3,750 residential units, up to
350,000 square feet of commercial space, 250 hotel rooms, and 200 senior
care units, including 6,520 onsite parking spaces, and 13.1 acres of onsite
open space; and (4) approval of Vesting Tentative Tract Map ("VTTM") No.
2023-01.
C. 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.
D. Because of the logistics, magnitude of the expenditure and considerable
lead time prerequisite to planning and developing the Project, Applicant has
proposed to enter into a development agreement concerning the Project
("Development Agreement No. 2023-02") to provide assurances that the
Project can proceed without disruption caused by a change in the City's
planning policies and requirements except as provided in the Development
Agreement No. 2023-02, which assurance will thereby reduce the actual or
Ordinance No. NS-3071
Page 1 of 5
perceived risk of planning for and proceeding with development of the
Project.
E. On August 12, 2024, the Planning Commission of the City of Santa Ana
held a duly -noticed public hearing on the proposed Development Agreement
No. 2023-02, recommending City Council approval of Development
Agreement No. 2023-02.
F. Entering into this Development Agreement No. 2023-02 would provide the
City with extraordinary and significant benefits that are of regional
significance, relate to existing deficiencies in public facilities, require the
Property Owners 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.
G. The Project and the use that the Property Owners propose in connection
with the Project have been extensively reviewed and considered by the City
Council, 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 No. 2023-02 are fair, just and reasonable, and the City Council
has concluded that the pursuit of the Project will serve the interests of the
City.
H. Based on the entire record before the City Council and all written and oral
evidence presented, the City Council finds the Development Agreement No.
2023-02 in the public's interest and results in substantial community benefits
because it meets and facilitates the fulfillment of many of the City's adopted
General Plan "Issues, Goals and Policies" for each individual element, as
further documented in the Ordinance of the City Council approving
Amendment Application No. 2023-03 to establish the Related Bristol
Specific Plan (SP No. 5) and approve the Zone Change.
Section 2. The City prepared a Draft Supplemental Environmental Impact
Report ("SEIR") that analyzed the Project's environmental impacts in accord with the
California Environmental Quality Act (Public Resources Code, §§ 21000 et seq.,
"CEQA"), the regulations promulgated thereunder (14 Cal. Code of Regulations,
§§ 15000 et seq., the "CEQA Guidelines"), and the City's Local CEQA Guidelines. The
Draft SEIR was made available for public review for 45 days between July 6, 2023 and
August 21, 2023. The document was made available online at the City of Santa Ana
website and available for review at City Hall and the City of Santa Ana Public Library in
hard copy form. In response to comments received on the Draft SEIR, the City prepared
a Final SEIR and released it to the public on August 1, 2024. The Final SEIR in the City
Council Resolution approving the Final SEIR is incorporated herein by reference. The
City Council Resolution recommends certification of the Final SEIR (SCH No.
2020029087), adoption of findings under CEQA, and adoption of the Mitigation
Ordinance No. NS-3071
Page 2 of 5
Monitoring and Reporting Program and the Statement of Overriding Considerations, and
among other things, properly assesses the environmental impact of the Project in
accordance with CEQA. This Resolution incorporates by reference the environmental
findings and analysis set forth in the Resolution for the Final SEIR (SCH No.
2020029087) as if fully set forth herein.
Section 3. The City Council of the City of Santa Ana, after conducting the public
hearing, hereby approves the Development Agreement No. 2023-02, a true and correct
copy of which is attached hereto as Exhibit A and incorporated herein by this reference,
and authorizes the City Manager and Clerk of the Council to execute it on behalf of the
City with such non -substantive changes as may be authorized by the City Manager and
City Attorney. The Clerk of the Council is hereby authorized and directed to cause this
Development Agreement No. 2023-02 to be recorded with the County Recorder's Office.
Section 4. This Ordinance shall not be effective unless and until the City
Council Resolution for Final SEIR No. 2020029087, the Planning Commission
Resolution for VTTM No. 2023-01, the City Council Ordinance for AA No. 2023-03, and
the City Council Resolution to Overrule the Orange County/John Wayne Airport Land
Use Commission's determination of inconsistency are adopted and become effective. If
said resolutions and ordinance are for any reason held to be invalid or unconstitutional
by the decision of any court of competent jurisdiction, or otherwise do not go into effect
for any reason, then this Ordinance shall be null and void and have no further force and
effect.
Section 5. This Ordinance shall not be effective unless and until the City
receives a fully executed copy of the Development Agreement No. 2023-02, including the
executed Joinder of the Fee Owners of the Property. If the fully executed copy of the
Development Agreement No. 2023-02 is not received by the City Clerk within 30 days of
the approval of this Ordinance by the City Council, then this Ordinance shall be null and
void and have no further force and effect.
Section 6. The documents and materials associated with this Ordinance that
constitute the record of proceedings on which these findings are based are located at
Santa Ana City Hall, 20 Civic Center Plaza, Santa Ana, CA 92701. The City Clerk is the
custodian of records for the record of proceedings.
Section 7. Pursuant to Government Code Section 66020, the Applicant may
protest the imposition of fees, dedications, reservations, or other exactions imposed on
this development project by taking the necessary steps and following the procedures
established by Sections 66020 through 66022 of the California Government Code.
Section 8. The Applicant 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
Ordinance No. NS-3071
Page 3 of 5
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 the legal counsel providing the City's defense, and that
Applicant 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
Applicant of any Action brought and City shall cooperate with Applicant in the defense
of the Action.
Section 9. If any section, subsection, sentence, clause, phrase, or portion of
this Ordinance is for any reason held to be invalid or unconstitutional by the decision of
any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council of the City of Santa Ana hereby
declares that it would have adopted this Ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more
sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Section 10. This Ordinance shall be effective thirty days after its adoption
provided the conditions precedent set forth above have been satisfied. The City Clerk
shall certify the adoption of this Ordinance and shall cause the same to be posted as
required by law. Pursuant to Government Code Section 65868.5, within 10 days
following the entering into of the Development Agreement, as evidenced by full
execution thereof, the City Clerk shall record with the Orange County Recorder a copy
of the Development Agreement.
ADOPTED this 151h day of October,
APPROVED AS TO FORM:
City Attorney
SaWIDtj A.
Sonia R. Carvalho
City Attorney
Ordinance No. NS-3071
Page 4 of 5
AYES: Councilmembers Amezcua, Bacerra, Hernandez, Lopez,
Penaloza, Vazquez (6)
NOES: Councilmembers None
ABSTAIN: Councilmembers Phan (1) recusal
ABSENT: Councilmembers None !0
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Jennifer L. Hall, City Clerk, do hereby attest to and certify the attached Ordinance No.
NS-3071 to be the original ordinance adopted by the City Council of the City of Santa
Ana on October 15, 2024.
Date: lb
nnifer L. 41
City Clerk_
�City-of-9anta La)
Ordinance No. NS-3071
Page 5 of 5
Exhibit A
Development Agreement No. 2023-02
Exhibit 4 Ordinance No. NS-3071
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 Government Code §27383
DEVELOPMENT AGREEMENT NO. 2023-02
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF SANTA ANA
and
RCR BRISTOL, LLC
A DELAWARE LIMITED LIABILITY COMPANY
Ordinance No. NS-3071 Exhibit 4
DEVELOPMENT AGREEMENT NO. 2023-02
This Development Agreement ("Agreement") is entered into as of this ■ day of -,
2024 by and between the City of Santa Ana, California ("City") on the one hand, and RCR BRISTOL,,
LLC, a Delaware limited liability company ("Owner" or "RCR"), on the other hand. City and Owner
may be referred to in this Agreement individually as a "party" or collective as the "parties."
RECITALS
A. 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 M. of the Government Code. RCR has an option to enter into a long-term ground
lease to the Property, which ground lease constitutes an equitable interest in the Property.
B. This Agreement constitutes a current exercise of City's police powers to provide predictability to
RCR in the development approval process by vesting the permitted uses, density, intensity of use,
timing and phasing of development, and applicable ordinances consistent with the Development
Plan in exchange for RCR's commitment to provide significant public benefits to City as set forth
in Section 4 below.
C. RCR has requested that City enter into this Agreement and proceedings have been taken in
accordance with applicable State law and the rules and regulations of the City in furtherance
thereof.
D. 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.
E. The City Council hereby finds and determines that this Agreement is of major significance
because it will provide significant economic benefit to the City through additional jobs created by
the construction and operation of the Project, property and sales tax revenue to the City,
infrastructure improvements, neighborhood revitalization, and general economic benefit.
F. The provision by RCR of the public benefits as set forth in Section 4 below allows the City to
realize significant economic, recreational, open space, educational, social, and other public
benefits to City. These 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.
G. The physical effects, if any, of the Project and this Agreement have been analyzed pursuant to the
California Environmental Quality Act as amended to date and as documented in the Final
Environmental Impact Report entitled "Related Bristol Specific Plan Final Supplemental
Environmental Impact Report" (State Clearinghouse House No. 2020029087 and City of Santa
Ana DP No. 2022-31 ("Project FEW).
H. This Agreement and the Project are consistent with the Santa Ana General Plan.
I. 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.
Exhibit 4 Ordinance No. NS-3071
Development of the Property in accordance with this Agreement will provide substantial benefits
to City, as set forth in Section 4 below, and as stated Sections 1.4 and 2.1 of the Specific Plan.
will further important policies and goals of City.
K. This Agreement will eliminate uncertainty in planning and provide for the orderly development
of the Property, provide for public services appropriate to the development of the Project, and
generally serve the purposes for which development agreements under Section 65864, et se . of
the Government Code are intended.
L. On August 29, 2023, the City Council held a public hearing and authorized the City's Planning
Division to draft findings and issue a determination overruling the County of Orange Airport
Land Use Commission's Determination of Inconsistency associated with the Project and to
provide notice of same in accordance with Section 21676(b) of the Public Utilities Code to the
County of Orange Airport Land Use Commission and the State of California Department of
Transportation's Division of Aeronautics.
M. On August 12, 2024 City's Planning Commission held a public hearing on this Agreement, made
findings and determinations with respect to this Agreement, and recommended to the City
Council that the City Council approve this Agreement.
N. On September 17, 2024, the City Council held a public hearing introducing this Agreement and
considered the Planning Commission's recommendations and the testimony and information
submitted by City staff, RCR, and members of the public. On , consistent with
applicable provisions of State law and the rules and regulations of the City, the City Council
adopted Ordinance No. M finding this Agreement consistent with the City's General Plan and
approving and adopting this Agreement.
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 is
hereby acknowledged, City and Owner hereby agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions. The following terms when used in this Agreement (including in the recitals
above) shall be defined as follows:
1.1.1. "Assigned Rights" has the meaning set forth in Section 2.5.1 hereof.
1.1.2. "Assignment and Assumption Agreement" has the meaning set forth in Section
2.5.1 hereof.
1.1.3. "Assumed Obligations" has the meaning set forth in Section 2.5.1 hereof.
1.1.4. "Agreement" means this Development Agreement.
1.1.5. "City" means the City of Santa Ana, a charter city and California municipal
corporation.
Ordinance No, NS-3071 Exhibit 4
1.1.6. "City Attorney" means the City of Santa Ana City Attorney.
1.1.7. "City Council" means the duly elected city council of the City of Santa Ana.
1.1.8. "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; construction of infrastructure and other public facilities; construction of
buildings and structures; installation of landscaping consistent with this Agreement.
"Development" does not include the maintenance, repair, reconstruction or redevelopment of
any building, structure, improvement or facility after the construction and completion thereof.
1.1.9. "Development Impact Fee" means 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 hoe 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 fees for processing applications for governmental regulatory actions or
approvals.
1.1.10. "Development Plan" means the plan for development of the Property pursuant to
the Project Approvals as set forth in Exhibit "C."
1.1.11. "Development Project Review Approvals" refers to the administrative review of
all projects meeting the requirements of Division 3 of Article V of Chapter 41 (Zoning) of the
Santa Ana Municipal Code as may be required by the Project Approvals.
1.1.12. "Discretionary Action" or "Discretionary Approval" means an action that
requires the exercise of judgment, deliberation, or discretion on the part of the City, including
any board, agency, commission, or department and any officer or employee thereof, in the
process of approving or disapproving Development of the Project, as distinguished from an
activity that is defined herein as a Ministerial Permit or Ministerial Approval (i.e., Development
Project Review Approvals).
1.1.13. "Effective Date" means the date the ordinance approving and authorizing this
Agreement becomes effective.
1.1.14. "Executive Director" has the meaning set forth in Section 2.5.1 hereof.
1.1.15. "Existing Land Use Regulations" means the Land Use Regulations that are in
effect on the Effective Date, pursuant to California Government Code Section 65866.
1.1.16. "Existing Project Approvals" means all Project Approvals approved or issued
on or before the Effective Date.
1.1.17."Fee Owners" shall collectively mean Greenville Ranch, LLC, BSG West
Bristol, LLC, and MCG Bristol West, LLC, and their respective successors and assigns.
1.1.18. "Future Project Approvals" means Project Approvals for the Project that are
adopted, approved, or issued after the Effective Date.
Exhibit 4 Ordinance No. NS-3C71
1.1.19. "Ground Lease" means the long term ground lease to be entered into by and
between the Fee Owners, as ground lessors, and Owner, as ground lessee.
1.1.20. "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, that affect, govern, or
apply to the Development of the Project and use of the Property in a manner consistent with this
Agreement, 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, subject to the terms of this Agreement, whether adopted by the City Council or the
voters in an initiative. "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 or the entry upon public property;
(e) the exercise of the power of eminent domain.
1.1.21. "Leasehold Estate" means the leasehold estate to be created under the Ground
Lease.
1.1.22. "Owner" means RCR or, as to each Project Phase that is the subject of a Sub
Ground Lease, the Sub Ground Lessee under such Sub Ground Lease, and their successors in
interest to all or any part of the applicable leasehold estate.
1.1.23. "Ministerial Approval," or "Ministerial Act" means the nondiscretionary permits,
plans, inspections, certificates, documents and licenses required to be taken, issued, or approved
by the City in order for Owner to develop the Project, including, without limitation, building
permits, grading permits, Development Project Review Approvals, and other similar permits and
approvals. Any approval or act that is not a Discretionary Approval is a Ministerial Approval.
1. 1.24. "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.
1.1.25. "Project" means the development of the Property, as more specifically described
in Exhibit "A" and shown on Exhibit "B," pursuant to the Project Approvals and the
Development Plan, as such Development Plan may be further defined, enhanced, or modified
pursuant to the provisions of this Agreement.
1.1.26. "Project Open Space" means the approximately 13.1 acres of publicly accessible
open -space areas, as defined in the Specific Plan, to be ground leased and maintained by Owner.
Ordinance No. NS-3071 Exhibit 4
1.1.27. "Project Phase" shall mean a portion of the development of the Property as
contemplated by the Project Approvals. To avoid confusion, a "Project Phase" may include one
or more Development phases and shall not be limited to any single Specific Plan Phase and may
consist of a portion of a Specific Plan Phase.
1.1.28. "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, entitlements, approvals (including Development Project Review
Approvals), and entitlements of every kind and nature that are sought or agreed to in writing by
Owner in its sole and absolute discretion for Development of the Project and that are approved
by the City. Project Approvals include, but are not limited to, general plan amendments, specific
plan approvals or amendments, site plans, development project review approvals, 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, environmental assessments, including environmental impact reports and negative
declarations. A list of the Project Approvals is set forth in Exhibit "C."
1.1.29. "Property" means the real property described in Exhibit "A" and shown in
Exhibit "B" to this Agreement. The Property is approximately 41.13 gross acres in size and is
occupied by the Metro Town Square commercial development as of the Effective Date. It is
composed of nine Assessor Parcel Numbers (APNs): 412-131-12, 412-131-13, 412-131-14, 412-
131-16, 412-131-17, 412-131-22, 412-131-24, 412-131-25 and 412-131-26.
1.1.30. "Public Benefit" refers to those benefits provided to the City and the community
by Owner pursuant to Section 4 below.
1.1.31. "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.
1.1.32. "Specific Plan Phase" means any one of the three phases as shown on Figure 6-2
(Conceptual Phasing Plan) of the Related Bristol Specific Plan.
1.1.33. "Sub Ground Lease" shall mean a sub ground lease entered into by Owner with a
third party pursuant to the terms of which Owner sub ground leases to such third party the
portion of the Property referenced therein.
1.1.34. "Sub Ground Lessee" shall mean the lessee under any Sub Ground Lease.
1.1.35."Sub Leasehold Estate" means the leasehold estate created under any Sub
Ground Lease.
1.1.36. "Term" has the meaning ascribed thereto in Section 2.4.1 below.
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 4 Ordinance No. NS-3071
Exhibit "C" — Development Plan and list of Project Approvals
2. GENERAL PROVISIONS.
2.1. Binding Effect of Agreement. 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, the Project Approvals, and this Agreement. This Agreement
shall be recorded against the Property, subject to the terms and conditions of the Joinder attached
hereto, which shall be executed by the Fee Owners and shall also bind the fee title to the Property
subject to the terms and conditions of the Joinder attached hereto.
2.2. Ownership of Property. Owner represents and covenants that it has an option to enter into
the Ground Lease, which Ground Lease constitutes an equitable interest in the Property. The
Property's fee simple owners are the Fee Owners as defined in Section 1.1.18. Owner does not
have a fee simple interest in the Property.
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, and enhances effective utilization of resources
within the City.
2.3.3. This Agreement provides public benefits beyond those that are necessary to
mitigate the development of the Project, as set forth in Section 4 below.
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. Term.
2.4.1. The initial term of this Agreement shall commence on the Effective Date and
shall continue for a period of twenty (20) years thereafter (the "Initial Term"), unless modified
or extended pursuant to the provisions of this Agreement. Together, the Initial Term and any
extension under this Agreement shall constitute the "Term." The Term, including all possible
extensions, shall not exceed twenty -five -years unless this Agreement is amended to allow further
extensions. Owner shall execute this Agreement which shall be recorded against the Property no
later than ten (10) days following Owner's receipt of the fully -executed, recordable Agreement
from the City. If Owner fails to enter into the Ground Lease within one (1) year of the Effective
Date then this Agreement shall be null and void and of no further force or effect and the parties
shall record a "Termination Release" as set forth in Section 10.1 below.
(a) Owner has represented to City that Fee Owners are aware and understand
of all of the terms of this Agreement and have consented to recordation of this Agreement against
the Property subject to the terms and conditions of the Joinder attached hereto. Fee Owner shall
Ordinance No. NS-3071 Exhibit 4
execute the Joinder attached to this Agreement and the properly executed Joinder shall be
provided to City no later than ten (10) days after approval of this Agreement by the City Council.
(b) It is anticipated that Parties will sign the Development Agreement upon
approval of the Agreement by the City Council. Owner and Fee Owner shall cause this
Agreement to be timely recorded against the Property no later than ten (10) days following
Owner's receipt of the fully -executed, recordable Agreement from the City.
(c) Failure of Owner to record this Agreement against the Property within
ten (10) days following the receipt of the fully -executed, recordable Agreement from the City
shall constitute an event of default by Owner under this Agreement.
2.4.2. The Initial Term of this Agreement shall be automatically extended by up to five
(5) years if Owner achieves the following milestones: grading permits have been issued and
construction has commenced on: (i) no less than 250,000 square feet of non-residential floor area
(e.g., grocer, retail, restaurants); and (ii) a hotel, subject to financial feasibility. Owner shall
remain eligible for the five (5) year extension if Owner determines that a hotel is financially
infeasible and City, employing a commercial reasonableness standard, affirms same. Owner
shall within 30 days reimburse City for the reasonable cost of the City's review of the hotel
financial feasibility study.
2.4.3. If Owner fails to satisfy the prerequisites to securing the automatic extension, the
City Council may nonetheless elect, in its sole discretion, to grant one or more extensions if
Owner provides the City with a plan that includes a Development timeline and specific
Development milestones.
2.4.4. When the Term ends, Owner shall have no vested right under this Agreement,
regardless of whether or not Owner has paid City any Development Impact Fee.
2.4.5. 1f any party other than Owner initiates litigation that challenges the Project, this
Agreement (and/or the ordinance approving this Agreement), or any of the Existing Project
Approvals, the Owner will have the right to toll commencement of the Term, except for the duty
to record this Agreement within ten (10) days of receipt of the fully -executed, recordable
Agreement from the City, and any obligations of Owner under this Agreement during the period
of such litigation. The tolling shall commence upon receipt by the City of written notice from
Owner invoking this right to tolling. The tolling shall terminate when the action, including any
appeal, is finally resolved, whether by entry of a final, non -appealable judgment that upholds the
Project and the Existing Project Approvals or voluntary or involuntary dismissal of the entire
action (and the passage of time required to appeal an involuntary dismissal) by the moving party.
Owner shall similarly have the right to toll commencement of the Term, except for the duty to
record this Agreement within ten (10) days of receipt of the fully -executed, recordable
Agreement from the City, and any obligations of Owner under the Agreement in the event a
referendum petition challenging the Project, the ordinance approving this Agreement, or any of
the Project Approvals is submitted to the City Clerk. The tolling shall terminate if and when: (1)
the City Clerk determines the referendum petition did not receive sufficient signatures to qualify
for the ballot; or (2) the election results of the referendum uphold the Project and the Existing
Project Approvals and are certified by the City Council. This Agreement shall be null and of no
further force and effect in the event that the City Council rescinds the challenged action.
Exhibit 4 Ordinance No. NS-3071
2.5. Assignment.
2.5.1. Right to Sell, Transfer, Assign and Sub Ground Lease. Owner shall have the
right, from time to time, to transfer all or portions of its interest in the Leasehold Estate and any
Sub Leasehold Estate (including through the entering into of one or more Sub Ground Leases)
(provided that no such partial transfer shall violate the Subdivision Map Act, Government Code
Section 66410, et seq.) to any person, partnership, joint venture, firm, limited liability company,
or corporation and, in connection therewith, to assign its rights under this Agreement, in whole
or in part, to said person, partnership, joint venture, firm., limited liability company (collectively,
the "Assigned Rights"); provided, however, that any such assignment of any rights and
obligations under this Agreement shall include the assignment and assumption of the rights,
duties and obligations arising under or from this Agreement that pertain to the Project Phase that
is the subject of such transfer, and be made in compliance with the following conditions
precedent:
(a) No transfer or assignment of any right or interest under this Agreement
(in whole or in part) shall be made unless made together with the transfer of all or a part of the
Leasehold Estate or Sub Leasehold Estate, as applicable, to which such rights or interests apply.
(b) In connection with any such assignment of an Owner's rights and
obligations under this Agreement (in whole or in part), Owner shall notify City in writing at least
sixty (60 days) in advance of any sale assignment and shall provide City with a draft assigmment
and assumption agreement ("Assignment and Assumption Agreement"), in a form reasonably
satisfactory to City, to be entered into by Owner, such assignee, and the City, pursuant to the
terms of which such assignee shall expressly and unconditionally assume those duties,
obligations, agreements, covenants, and waivers of Owner under this Agreement that are
applicable to the Project Phase that is the subject of the portion of the Leasehold Estate, or Sub
Leasehold Estate, as applicable, being transferred, including, without limitation, the covenants not
to sue and waivers contained in Sections 7.3.1 and 9.5.1 hereof (collectively, the "Asstuned
Obligations"). Notwithstanding the failure of any assignee to execute the Assignment and
Assumption Agreement, as required by Section 2.5. 4 (b) above, the burdens of this Agreement
(as they relate to the Project Phase that is the subject of the Leasehold Estate or Sub Leasehold
Estate being transferred) shall be binding upon such transferee, but the benefits of this Agreement
shall not inure to such transferee unless the Assignment and Assumption Agreement is executed.
(c) The Executive Director for the Planning and Building Agency (the
"Executive Director") shall have the administrative authority to approve of the Assignment and
Assumption Agreement and to determine whether Owner has complied with the above
conditions, which approval and determination shall not be unreasonably withheld or conditioned.
The Executive Director shall use best efforts to approve of the Assignment and Assumption
Agreement and to determine whether the Owner has complied with the above conditions within
five (5) business days following receipt of Owner's written request. The Executive Director's
failure to approve or disapprove the foregoing within thirty (30) days following the Executive
Directors receipt of Owner's written request shall constitute City's approval of the same.
(d) Owner shall include the following sentence in each assignment, transfer
or other conveyance document: "The Parties agree and acknowledge that no building permits will
be issued by the City for a particular Project Phase unless and until the Community Benefit
Ordinance No. NS-3071 Exhibit 4
Payment has been made for the applicable Specific Plan Phase which the particular Project Phase
is in."
2.5.2. No Release of Transferring Owner. Notwithstanding any sale, transfer or
assignment as provided in any Assignment and Assumption Agreement delivered in accordance
with the provisions of Section 2.5.1 above, a transferring Owner shall continue to be obligated to
comply with all of the terms and conditions set forth in this Agreement (and such transferring
Owner shall not be released from any of such obligations) with respect to the transferred
Leasehold Estate or Sub Leasehold Estate, or any transferred portion thereof, as applicable, and
following any such transfer the transferring Owner and the transferee under the Assignment and
Assumption Agreement shall be jointly and severally liable with respect to all of the obligations
assumed by such transferee under such Assignment and Assumption Agreement.
2.6. Administrative Changes and Modifications.
2.6.1. Owner and City acknowledge that further planning and development of the
Project may demonstrate that refinements and changes are appropriate with respect to the details
and performance of the parties under this Agreement. The parties desire to retain a certain
degree of flexibility with respect to the details of the Project development and with respect to
those items covered in general terms under this Agreement, the Project Approvals, the Existing
Land Use Regulations, and, once issued, any Future Project Approvals.
2.6.2. If and when the parties find that "Substantially Conforming Changes," as herein
defined, are necessary, desirable or appropriate, they may, unless otherwise required by law,
effectuate such changes or adjustments through an administrative operating memorandum that is
executed by Owner and the Executive Director of the City's Planning and Building Agency or
the Director's designee. As used herein, a "Substantially Conforming Change" is a minor
change, modification, or adjustment that is deemed to be in substantial conformance with the
Development Plan at the City's sole and absolute discretion. The following are excluded from
the definition of "Substantially Conforming Changes": (1) changes to the timing or amount of
the Project's Twenty -Two Million dollar ($22,000,000) Community Benefit Payment; (2)
changes to the In -Lieu Fee; (3) changes to the Project Open Space; and (4) changes to the
Timing of Development as set forth in Sections 3.5.1 and 3.5.2. A Substantially Conforming
Change is not considered an amendment to this Agreement or to Development Plan and so does
not require prior notice or hearing by the Planning Commission or City Council.
2.7. Amendment or Cancellation of Agreement. Except for Substantially Conforming
Changes as defined by Section 2.6.2 above, this Agreement may be amended or modified from
time to time only with the written consent of Owner and the City or their successors and assigns,
and only upon approval of an amendment by the City Council after a public hearing in
accordance with Government Code Section 65868. This provision shall not limit any remedy of
City or Owner as provided by this Agreement. For avoidance of doubt, no modification of the
Development Agreement pursuant to this Section 2.7 shall limit or impair the rights of Fee
Owners under the attached Joinder without the consent of Fee Owners.
2.8. Termination. This Agreement shall be deemed terminated and of no further effect upon
the occurrence of any of the following events:
2.8.1. Expiration of the stated Term of this Agreement as set forth in Section 2.4,
including any extension(s).
Exhibit 4 Ordinance No. NS-3071
2.8.2. Entry of a final judgment by a court of competent jurisdiction setting aside,
voiding, or annulling the adoption of the ordinance approving this Agreement and/or any Project
Approvals as set forth in Exhibit C.
2.8.3. The adoption of a referendum measure overriding or repealing the ordinance
approving this Agreement and/or any Project Approvals. In the event a referendum petition
challenging the ordinance approving this Agreement and/or any Project Approvals is submitted
to the City Clerk, Owner shall deposit with the City Ten Thousand Dollars ($10,000) ("Petition
Deposit") to cover the actual cost incurred by the City examining the petition and verifying
signatures. Should the referendum qualify for the ballot, Owner may request, at or prior to the
Council meeting at which the Council will take up the referendum issue, that the City Council
repeal the ordinance and/or any Project Approvals rather than submitting it to the voters. if
Owner does not request that the City Council repeal the ordinance and/or any Project Approvals
and the City Council submits the referendum to the voters, Owner shall deposit Fifty Thousand
Dollars ($50,000) ("Referendum Deposit") with the City. City may use the Referendum Deposit
to pay any and all costs associated with the said referendum measure (e.g., legal fees for outside
counsel). Any funds remaining in the Petition Deposit may be put toward the Referendum
Deposit at the Owner's request. If at any time the Referendum Deposit account has Five
Thousand Dollars ($5,000) or less remaining, Owner shall, within three (3) business days of
receiving notice from the City, deposit with the City Twenty -Five Thousand Dollars ($25,000)
as requested by the City to cover necessary costs and expenses associated with the referendum
and holding the related election. Following certification of the election results, any funds
remaining in the Petition Deposit or the Referendum Deposit account shall be returned to the
Owner within thirty (30) days of certification of the election results. In the event Owner
requests that the City Council repeal the ordinance and the City Council nonetheless determines
to submit the ordinance to the voters, Owner shall have no financial responsibility for the costs
associated with holding the election, including any obligation to make a Referendum Deposit.
2.8.4. Completion of the Project in accordance with the terms of this Agreement, which
is hereby defined to be. (i) issuance by the City of all required occupancy permits and final
approvals for occupancy for the Project's 3,750 multi -family residential units, 350,000 square
feet of commercial uses, 250 room hotel, and 200 senior living/continuum of care units; (ii)
acceptance by City or applicable public agency of all required dedications in connection with
same; and (iii) written notification by City to Owner that the Project is complete.
2.8.5. Termination of the Agreement as provided under this Agreement, including but
not limited to Section 7.4 herein, shall not constitute termination of any other Project Approvals.
Upon the termination of this Agreement, no party shall have any further 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 Impact Fees
paid by Owner to City on which construction has not yet begun shall be refunded to Owner by
City.
2.9. Notices.
2.9.1. 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 communication required or permitted hereunder.
Ordinance No. NS-3071 Exhibit 4
2.9.2. 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 mail 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. All notices shall be addressed as follows:
If to City:
City Clerk
20 Civic Center Plaza, 8`h Floor
PO Box 1988 M-30
Santa Ana, Ca 82702
Copies to:
City Manager
City Attorney
Executive Director of Planning and Building Agency
If to Owner:
Related California Residential, LLC
18201 Von Karman Avenue, Ste 900
Irvine, CA 92612
Attn: Steven S. Oh
E-mail: Steven.Oh@Rclated.com
Rclated.com
Copies to:
Sean Matsler, Esq.
Cox, Castle & Nicholson LLP
3121 Michelson Drive, Ste 200
Irvine, CA 92612
E-mail. smatsler@coxcastle.com
If to Fee Owners:
Greenville Ranch, LLC
8856 Sutter Circle, Unit 526b
Huntington Beach, CA 92646
Attn: Alice Z. Callens
And
BSG West Bristol, LLC
c/o Eide Bailly LLP
1505 Madrona St. N., Ste 800
Twin Falls, ID 83301
Attn: Jeff Spackman
Exhibit 4 Ordinance No. NS-3071
And
MCG Bristol West, LLC
6618 Avenida Bizarro
La Jolla, CA 92037
Attn: David Cortney
2.9.3. Either party may, by written 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.
2.9.4. Consistent with the Joinder attached hereto, Fee Owners shall receive notice of
any default and have the right, but not obligation, to cure any default as permitted in Sections
9.1.2 and 9.1.3 below. Fee Owners and their lenders shall also be entitled to receive a
Certificate of Compliance upon request as provided in Section 10.20.
3. DEVELOPMENT OF THE PROPERTY.
3.1. Rights to Develop. Subject to the terms of this Agreement, including the Reservation of
Rights in Section 3.3 below, Owner shall have a vested right to develop the Property in
accordance with, and to the extent of, this Agreement, and the Project Approvals, and the
Development Plan for the duration of the Term. Owner may proceed with demolition permits
prior to pulling building permits provided Owner has provided proof of financing for that portion
of the Project that demolition permits are being sought for. From the commencement of
demolition until issuance of the Certificate of Occupancy, Owner shall ensure that the Property is
secured and that all construction walls are maintained in a good condition and repair with no
graffiti.
3.1.1. Except as expressly provided otherwise herein, the Project shall remain subject to
all Existing Land Use Regulations and Project Approvals for the Term. 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 Existing Land Use Regulations and Project Approvals.
3.1.2. In accordance with Government Code Section 66452.6(a), any subdivision map
approved which relates to all or a portion of the Property shall be extended for the greater of (i)
the Term of this Agreement or (ii) expiration of the tentative map pursuant to Section 66452.6.
3.1.3. Owner shall comply with all mitigation measures required to be undertaken
pursuant to any document prepared in compliance with the California Environmental Quality
Act with respect to the Project.
3.1.4. Notwithstanding Section 3.1.1 above, Owner acknowledges and agrees that the
Project requires additional Project Approvals (the Future Project Approvals identified in Section
1.1.19). These Future Project Approvals shall be consistent with the Existing Project Approvals
and this Agreement as to 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
Ordinance No. NS-3071 Exhibit 4
of land for public purposes; however the Future Project Approvals may include additional
conditions that are lawful and appropriate to the type of Project Approval.
3.2. Effect of Agreement on Land Use Regulations. Except as otherwise provided under the
terms of this Agreement including the Reservation of Rights in Section 3.3 below, the rules,
regulations and official policies governing, inter alia, pennitted uses and Development of the
Property, the density and intensity of use and of the Property, the maximum 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
Project Approvals. In connection with any subsequent Project Approvals and except as
specifically provided otherwise herein, City may exercise its discretion as set forth in Section
3.3.2.
3.2.1. City shall reasonably strive to complete:
(a) its initial review of individual development projects within 30 days after
the application is deemed complete,
(b) any second plan review within 15 days after submission, and
(c) any third plan review within 10 days after submission.
3.2.2. Notwithstanding the foregoing, the City does not guarantee that the timelines
above will be met, and failure to meet these timelines does not constitute a default.
3.2.3. To help ensure expedited review of its development approvals, Owner may elect
to pay for City to use a contract planner. City agrees to retain a contract planner to expedite
review, if Owner so elects.
3.3. Reservation of Rights.
3.3.1. Limitations, Reservations and Exceptions. Notwithstanding any other provision
of this Agreement, the following are not Existing Land Use Regulations, but shall apply to the
development of the Property as they are in effect at the time of application for Development
Project Review Approvals, provided such regulations and/or fees (as applicable) are not
designed in a manner such that they are applicable only, to the Project and/or 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 Project Approvals or for monitoring
compliance with any Project 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, provided that such procedural regulations do not conflict with the Project Approvals.
(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.
Exhibit 4 Ordinance No. NS-3071
(d) Regulations that are 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 maximum extent possible, any such regulations
shall be applied and construed so as to provide Owner with the rights and assurances provided
under this Agreement.
(e) Regulations that are not in material conflict with this Agreement or the
Development Plan. For avoidance of doubt, any regulation, whether adopted by initiative or
otherwise, limiting the rate or timing 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.
(f) 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 the Property.
(g) 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.
(h) Regulations of other public agencies, including Development Impact
Fees adopted or imposed by such other public agencies, although collected by City.
3.3.2. Subsequent Project Approvals, This Agreement shall not prevent City from
exercising its rights under Government Code Section 65866 when acting on subsequent Project
Approvals provided that such City actions do not materially conflict with this Agreement, the
Development Plan, the Existing Land Use Regulations, and/or the Project Approvals.
3.3.3. Modification or Suspension by State 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 and that the foregoing limitations,
reservations and exceptions are intended to reserve to City all of its 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 Agencies. It is acknowledged by the parties that other public
agencies not within the control of City may possess authority to regulate aspects of the
development of the Property separately from or jointly with City and this Agreement does not
limit the authority of such other public agencies.
3.5. Timing of Development. Because the California Supreme Court held in Parolee
Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that
Ordinance No. NS-3071 Exhibit 4
case to provide for the timing 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 judgment, except for the following:
3.5.1. No building permits for residential units shall be issued in excess of 1,875
residential units unless and until Owner commences construction activities for at least 175,000
square feet of commercial development. Owner may construct commercial square footage
beyond 175,000 square feet if and when such additional commercial development is supported
by market conditions, as determined by Owner in its sole discretion. Owner understands that
commercial development is a priority to the City and agrees to exercise its discretion in good
faith.
3.5.2. No less than 35,000 square feet of commercial development in Phase 1 or Phase
2 (as shown on Specific Plan Figure 6-2) shall consist of a grocer.
3.6. Moratoria. Except as specifically set forth in this section, City agrees that to the extent
permitted by law, no moratorium or other similar limitation (whether relating to the rate, timing,
or sequencing of the development of the Project or any part thereof and whether or not enacted by
local initiative or otherwise) affecting subdivision 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.
3.7. Development Agreement/Project Approvals. In 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 or
Project Approval and this Agreement, the provisions of this Agreement shall control.
4. PUBLIC AND COMMUNITY SAFETY BENEFITS.
4.1. Public Benefits, The Project is expected to bring significant fiscal benefits to the City.
The Project will also serve to implement the City's General Plan vision for the Property, which
has long been designated as a District Center where intense mixed -use development is
encouraged. In addition, Owner has committed by this Agreement to contribute the public and
community safety benefits, as provided below.
4.2. Community Benefits.
4.2.1. Santa Ana Police Department Substation: Prior to or concurrent with the
construction completion of the Project's Phase 1, as contemplated by the Development
Approvals), Owner shall provide City, upon the City's written request, with exclusive use of a
500 square foot space and 3 dedicated parking stalls within the Property for use by the Santa
Ana Police Department as an administrative substation. This substation space and parking stalls
will be owned by Owner but improved (tenant improvements), operated and maintained by the
Santa Ana Police Department. The final location of the substation and its parking stalls are
Exhibit 4 Ordinance No. NS-3071
envisioned to be located in one of the buildings along Plaza Drive or MacArthur in Phase 3 of
the Project, as contemplated by the Development Approvals, but may be temporarily located
anywhere on the Property, including potentially within existing commercial center. The
substation and its parking stalls may be relocated within the Property subject to the mutual
agreement of the parties. For the Term of the Agreement, Owner shall maintain private onsite
security to monitor all areas of the Property.
4.2.2. Project Community Benefit Package: The Project will provide significant
economic benefit to the City through additional jobs created by the construction and operation of
the Project, property and sales tax revenue to the City, infrastructure improvements,
neighborhood revitalization, and general economic benefit. In addition, Owner has agreed to
provide the City with a Twenty -Two Million dollar ($22,000,000) payment ("Community
Benefit Payment"), which Community Benefit Payment shall be allocated at the City's sole
discretion. The Community Benefit Payment shall be paid to City by Owner pursuant to the
following schedule. (1) Eight Million dollars ($8,000,000) prior to or concurrent with the
issuance of the first demolition permit in furtherance of the Project's first Specific Plan Phase
("Community Benefit Payment No. 1"); (2) Six Million dollars ($6,000,000) prior to the
issuance of the first building permit in furtherance of the Project's second Specific Plan Phase
("Community Benefit Payment No. 2"); and (3) Eight Million dollars ($8,000,000) prior to the
issuance of the first building pen -nit in furtherance of any component of the Project's third
Specific Plan Phase except for building permits in furtherance of the Project Open Space
("Community Benefit Payment No. 3"). If the City has not received Community Benefit
Payment No. 2 on or before the date that is 36 months and 1 day from the date of the
Community Benefit Payment No. 1 payment, then Community Benefit Payment No. 2 shall
accrue simple interest at a rate of five percent (5%) per antrum until such time as it is paid to the
City. Similarly, if the City has not received Community Benefit Payment No. 3 on or before the
date that is 36 months and 1 day from the date of the Community Benefit Payment No. 2
payment, then Community Benefit Payment No. 3 shall accrue simple interest at a rate of five
percent (5%) per annum until such time as it is paid to the City. Developer may commence
construction of the Specific Plan Phases in any order. Notwithstanding the Specific Plan Phase
order, Community Benefit Payment No. 1 shall be paid prior to or concurrent with the issuance
of the first demolition permit in furtherance of any Specific Plan Phase; Community Benefit
Payment No. 2 shall be paid prior to or concurrent with the issuance of the first building permit
in furtherance of a different Specific Plan Phase; and Community Benefit Payment No. 3 shall
be paid prior to or concurrent with the issuance of the first building permit in furtherance of the
final Specific Plan Phase.
4.2.3. Business Retention and Local Vendors. Owner assumes the risk and shall be
solely liable for any and all relocation benefits that are payable to any existing tenants in
accordance with Government Code Sections 7260 et. seq. (See also Kong v. City of Hawaiian
Gardens Redevelopment Agency (2002) 101 Cal.AppAth 1317). Owner shall defend and
indemnity the City against any and all relocation claims.
4.2.4. Hotel Economic Benefits. The hotel(s) shall be operated under a recognized
hotel flag or by a boutique hotel operator with a demonstrated track record of success operating
similar hotels. Owner shall employ commercially reasonable efforts to secure a four -star hotel or
above out of a five-star rating system as widely recognized and commonly used in the hospitality
industry.
4.2.5. Project Open Space. In accordance with the Specific Plan, Owner shall
construct, own, and maintain the Project Open Space.
Ordinance No. NS-3071 Exhibit 4
(a) Owner shall design the Project Open Space to promote biodiversity,
extend thermal comfort, and to promote biophilic design, health, and wellness.
(b) Owner shall provide a total minimum of 4 free on -site events per year for
the general public (e.g., concerts or farmers markets) including programming on sustainability
and wellness, subject to Force Majeure events, as follows: (a) a minimum of two (2) free events
per year shall be provided commencing one year after the completion of the southern Mixed-
Use/Village Core district as set forth in the Specific Plan; and (b) a minimum of two (2) free
events per year shall be provided commencing one year after the completion of the northern
Mixed-use/Residential district as set forth in the Specific Plan. Owner's obligation under this
Section shall terminate after 25 years after the commencement of the first free on -site event or
upon termination of this Agreement whichever occurs later.
(c) Owner shall record one or more open space easements against the
Property for the benefit of the City concurrent with the recordation of the subdivision maps that
implement a given Project Phase or Development phase, as contemplated by the Project
Approvals.
(d) City shall provide Owner a credit against its park and open space fee
obligations (e.g., Park Acquisition and Development Fee) for the hard and soft cost of all land,
improvements, operation, and maintenance associated with the Project Open Space. In the event
the Project Open Space is less than 13.1 acres, Owner must satisfy any required park and
recreation fees or other obligations (including those specified in Chapter 35, Article IV of the
Santa Ana Municipal Code) for the amount of the acreage shortfall as calculated by the City.
4.2.6. Construction Standards.
(a) Leadership in Energy and Environmental Design (LEED). The Project
shall be constructed to a minimum LEED Silver standard, as established by the U.S. Green
Building Council.
(b) Water Conservation. The Project shall include high -efficiency irrigation,
native drought -tolerant plantings, low -flow plumbing fixtures, and Energy Star equipment and
appliances.
(c) Electric Vehicle ("EV") Parking. No less than 5% of all structured
parking stalls in the Project shall be equipped with EV chargers. No less than 10% of all parking
stalls located within the parking structures shall be EV ready with sufficient electrical
infrastructure to enable the future installation of EV conduit and chargers.
(d) Signage Pro _ram. Owner shall implement a signage program to promote
mass transit, provide ride -share infrastructure & bikele-mobility facilities.
(e) Electrical Appliances: All individual residential units within the Project
shall utilize electric or induction stoves, ovens, and clothing dryers. This obligation shall not
apply to commercial, common area, hotel, or other non-residential uses.
(f) Photovoltaic Panels: The Project shall incorporate photovoltaic panels on
all residential components of the Project
Exhibit 4 Ordinance No. NS-3071
(g) Ecology & Wellness. Owner shall exercise commercially reasonable
efforts to implement a single use plastic or non -biodegradable plastic use reduction program with
retail tenants where feasible, with the exception of the grocer.
(h) Carbon Sequestering. Owner shall exercise commercially reasonable
efforts to incorporate carbon sequestering vegetation in the landscaping plans
(i) Fitwell. Owner shall exercise commercially reasonable efforts to obtain
Fitwell certification for the residential components of the Project.
0) Bike Lockers. With issuance of each building permit, Owner shall
provide for and maintain and secure bike lockers or bike storage rooms on the Property. At least
half of the lockers shall be made available for free to Project residents and employees.
4.2.7. Orange County Flood Control District Parcel: The Orange County Flood
Control District owns an approximately 0.2 acre parcel (APN 412-131-27) adjacent to, and
immediately northeast of, the Property ("OCFCD Parcel"). Owner shall make a reasonable and
good faith effort to work cooperatively with City and the Orange County Flood Control District
to improve and maintain the OCFCD Parcel.
5. HOUSING OPPORTUNITY ORDINANCE COMPLIANCE.
5.1. Owner Exemption. During the Term of this Agreement, as such Term may be extended,
Consistent with Santa Ana Municipal Code Section 41-1903(a), Owner is exempt from Santa Ana
Municipal Code Article XVIII.I inclusionary housing requirements (i.e., the Affordable Housing
and Opportunity Ordinance) because Owner is entering into this Agreement. In lieu of
compliance with Article XVIILI, Owner commits to the In -Lieu Fee as set forth in Section 5.1.1,
below, which may be paid at the time of building permit issuance for each market rate residential
unit contemplated by a given building permit or in the aggregate, at Owner's sole discretion. In -
Lieu fees paid in excess of the requirements for a particular building permit may be accrued and
used by Owner to satisfy future in lieu fee requirements. Upon expiration or termination of this
Agreement, Owner shall be subject to Santa Ana Municipal Code Article XVIII.I for any unit that
has not received a Certificate of Occupancy.
5.1.1. In -Lieu Fee. Upon timely payment of the Twenty -Two Million dollar
($22,000,000) Community Benefit Payment as provided in Section 4.2.2, Owner shall make an
in -lieu fee payment at the time of building permit issuance for each market rate residential unit
contemplated by the building permit equal to five dollars ($5.00) per habitable square foot of
each market rate residential unit (excluding Senior Assisted Living Community units, identified
in Section 4.1.3 of the Specific Plan as Congregate Housing, Assisted Living or Memory Care
units). At Owner's sole discretion, Owner may convert any Senior Assisted Living Community
units to Independent Living units (as defined in Section 4.1.3 of the Specific Plan) and/or
multifamily market rate units by paying the in -lieu housing fee in accordance with this
Agreement.
6. REVIEW FOR COMPLLANCE.
6.1. Periodic Review.
Ordinance No. NS-3071 Exhibit 4
6.1.1. The City shall review this Agreement annually, on or before July 1, 2025, and
annually thereafter until the expiration of this Agreement, in order to ascertain the compliance
by Owner with the terms of this Agreement ("Annual Review"). Owner shall timely submit an
Annual Monitoring Report, in a form acceptable to the City Manager on or before the first
anniversary of the Effective Date and annually thereafter until the expiration of this Agreement.
If the Annual Review is not submitted within thirty (30) days after written notice from the City
Manager, then Owner shall be in breach of this Agreement. The failure of the City to conduct the
Annual Review shall not constitute a default by Owner. 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.
6.1.2. The Annual Review shall include a progress report on the status of the
implementation of the Project and the new tax revenue generated by the Project, including, but
not limited to, the following:
(a) Development and construction progress of the following uses and Project
components:
(i) Site development
(ii) Public infrastructure,
(iii) Project design features,
(iv) Community benefits,
(v) Plaza,
(vi) Hotel,
(vii) Residential,
(viii) Commercial,
(ix) Office
(x) Parking
(xi) Philanthropic activities (education, culture, arts)
(b) Reporting for items listed in Section 6.1.2(a) shall be include a table
substantially similar to the following:
An example of a compliance report for site development and can be applied to other above criteria and metrics.
Reporting Period: 2025 -1st Report
Year 1 of 20 of Agreement
Exhibit 4 Ordinance No. NS-3071
Use
Approved
Total
Cumulative
Remaining to
Status & Look Ahead
SF/Units/Rooms
Completed In
Total
Be
Period
Completed
Completed
Residential
3,750
100
200
3,550
On target with 300 to be
completed in the next period
Hotel
250
250
250
0
Completed
Commercial
350.000
150,000
150,000
200,000
150k completed for Tenant X.
New
20-Year lease.
Negotiating with Tenant Y for a
15 year lease.
(c) Progress relative to economic projections of:
(i) Increases in property tax,
(ii) Property Tax In -Lieu of VLF received by the City,
(iii) Sales tax received from the Project,
(iv) Business tax received from the Project,
(v) Hotel Visitors Tax (HVT)
(vi) Utility User Tax received from the Project,
(d) Reporting for items listed in Section 6.1.2(c) shall be include a table,
prepared by Owner with City's cooperation, substantially similar to the following:
Reporting Period: 2024 —
Year 1 of 20 of Agreement
Revenue
Total for Period
Cumulative to
Percentage
Status & Look Ahead
date
increase over
2018 Base
Year
Property Tax
Property Tax
In -Lieu of
VLF
Safes Tax
TOT (HVT)
Business
Tax
Franchise
Tax
UUT
Ordinance No. NS-3071 Exhibit 4
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:
6.4.1. The time and place of the hearing;
6.4.2. A statement as to whether or not City proposes to terminate or to modify this
Agreement; and,
6.4.3. Such other information that the City considers necessary to inform Owner of the
nature of the proceeding.
6.5. Hearing on Modification or Tennination. 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
this Agreement, the City Council may terminate this Agreement or, in lieu of termination and
with the consent of Owner, 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.
6.6. Certificate of Agreement Compliance.
6.6.1. If, at the conclusion of a Periodic or Special Review, Owner is found to be in
compliance with this Agreement, City 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.
6.6.2. 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 received through the City's existing regulatory process shall be
governed by the terms of those approvals, and in no event shall such conditions be affected
by the termination, cancellation, rescission, revocation, or default or expiration of this
Development Agreement (although such conditions must comply with the Applicable Rules).
7. DEFAULT AND REMEDIES.
7.1. Remedies in General. It is acknowledged by the parties that City and Owner would not
have entered into this Agreement if either party were to be liable in damages arising out of a
breach or default under this Agreement and, therefore, each of the parties hereto hereby
acknowledge and agree that the sole remedies that either party hereto may pursue and enforce
against the other arising out of a default or breach under this Agreement by the other party {and
Ordinance No. NS-3071 Exhibit 4
6.2. Special Review. The City Council may order a special review of compliance with this
Agreement at any time commencing one year following the issuance of the Project's first building
permit, but not more than once during any 12-month period. The City Manager, or his or her
designee, shall conduct such special reviews.
6.3. Review Procedure.
6.3.1. During either an Annual Review or a special review, Owner shall be required to
demonstrate good -faith compliance with the terms of this Agreement. The burden of proof on
this issue shall be on Owner.
6.3.2. Upon completion of an Annual Review or a special review, the City Manager,
or the City Manager's designee, shall submit a receive and file report to the Planning
Commission if he or she finds that Owner is in good -faith compliance with the terms of this
Agreement. If the City Manager, or the City Manager's designee, finds on the basis of
reasonable evidence that Owner is not in good -faith compliance with the terms of this
Agreement, he or she shall set the matter for hearing before the Planning Commission and shall
submit a report setting forth said evidence concerning compliance by Owner with the terms of
this Agreement and his or her recommended finding on that issue.
6.3.3. If the Planning Commission finds on the basis of substantial evidence that
Owner is in good -faith compliance with the terms of this Agreement, it shall confirm same and
formally conclude the review by resolution. If the Planning Commission finds and determines on
the basis of substantial evidence that Owner has not complied in good faith with the terms and
conditions of this Agreement:
(a) The Planning Commission shall provide written notice to Owner of such
findings setting forth the nature of the problem and the actions, if any, required of Owner to cure
such problem.
(b) If the problem can be cured and Owner fails to take such actions and cure
such problem within sixty (60) days after of the effective date of the Planning Commission's
notice or, in the event that such problem 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
problem within such sixty (60) day period and to diligently proceed to complete such actions and
cure such problem, then the Planning Commission may recommend to the City Council
modification or termination of this Agreement.
(c) Owner may appeal a Planning Commission determination pursuant to
this Section 6.3.3 pursuant to City's rules for consideration of appeals in zoning matters then in
effect. If a Planning Commission determination is appealed, any cure ordered by the Planning
Commission shall be tolled until a decision is reached by the City Council on the appeal. Notice
of default as provided under Section 7 of this Agreement shall be given to such Owner prior to or
concurrent with proceedings under Section 6.4 and Section 6.5.
6A. Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3,
City determines to proceed with modification or termination of this Agreement, City shall give
Exhibit 4 Ordinance No NS-3071
the expiration of all applicable notice and cure periods) shall be an action for specific
perfonmance or a termination of this Agreement by such non -defaulting parry's obligations under
this Agreement (subject to the terms and provisions of Section 6.3.3), and each party hereto
expressly waives any other remedy they might otherwise be entitled to pursue, at law or in equity,
against the other, and each party hereto expressly waives any right to sue the other for damages or
claim any damages.
7.2. Release.
7.2.1. Except for specific performance, 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, because it 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 OR HER 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
7.2.2. Except for specific performance, City, for itself, its successors and assignees,
hereby releases Owner, 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, because it entered into this Agreement or because of the terms of this Agreement. City
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 OR HER 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, City hereby waives the provisions of Section 1542 in connection
with the matters that are the subject of the foregoing waivers and releases.
City's Initials
7.3. Termination or Modification of Agreement for Default of an Owner. City may terminate
or modify this Agreement for any failure of Owner to perform any material duty or obligation of
Exhibit 4 Ordinance No. NS-3071
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 7.4 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
default 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 Ionger 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.
7.3.1. No Cross Default. Parties agree and acknowledges that, notwithstanding anything
stated to the contrary in this Agreement: (a) the failure of RCR to comply with or satisfy any of
RCR's obligations under this Agreement shall not limit or impair a transferee's rights and
benefits under this Agreement with respect to its Assigned Rights (as they apply to the Project
Phase owned by such transferee) under Section 2.5.1 of this Agreement and (b) the failure of any
transferee to satisfy such transferee's Assumed Obligations as provided for under Section 2.5.1 of
this Agreement shall not, as to the Project Phase to which those Assumed Obligations apply,
limit or impair any of the Assigned Rights of any other transferee as to the Project Phase owned
by such other transferee.
7.4. Voluntn Termination of Agreement by RCR. In the event RCR determines, in its sole
discretion, prior to issuance of the first demolition permit implementing the first Specific Plan
Phase, that it no longer wishes to proceed with the Project pursuant to the terms of this
Agreement, RCR may terminate this Agreement by providing the City with 30 days written
notice. Notwithstanding this or other provisions herein, RCR's indemnity and defense obligations
shall survive such termination for the later of twelve (12) months or expiration of the statute of
limitations on any and all potential causes of action against the City as set forth in Section 8 of
this Agreement.
7.5. Notice and Cure Rights. Notwithstanding anything stated to the contrary in this
Agreement, City shall have no right to terminate any of the rights of any Owner under this
Agreement unless such Owner has failed to cure any default under this Agreement giving rise to
any such termination right within the cure periods expressly provided for above in this Section 7.
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, any document prepared for the Project in
compliance with the California Environmental Quality Act, or the approval of any permit or
entitlement granted pursuant to this Agreement for the Project. City shall promptly notify Owner
of any claim, action, proceeding or determination included within this Section 8.1 no later than
fourteen (14) business days and City's receipt of service of process and City shall cooperate in the
defense. if City fails to promptly notify Owner of any such claim, action, proceeding or
determination as required by this Section, or if City fails to cooperate in the defense, Owner shall
not thereafter be responsible to defend, indemnify, or hold harmless City as to that claim, action,
proceeding, or determination. City may in its discretion participate in the defense.
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
Ordinance No NS-3071 Exhibit 4
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 in its discretion participate in
the defense.
8.3. Reservation of Rights. With respect to Section 8.1 and Section 8.2 herein, City reserves,
the right to either (1) approve the attorney(s) that the indemnifying party selects, hires or
otherwise engages to defend the indemnified party hereunder, which approval shall not be
unseasonably withheld, conditioned, or delayed; or (2) conduct its own defense; provided,
however, that the indemnifying party 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 lawful 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.
8.5. Survival. The provisions of Sections 8.1 and 8.2 shall survive the termination of this
Agreement.
9. MORTGAGEE PROTECTION.
9.1. The parties hereto agree that this Agreement shall not prevent or limit Owner, in any
manner, 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 lenders 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 provided such interpretation or modification is
consistent with the intent and purposes of this Agreement. In furtherance of the foregoing, and
notwithstanding anything stated to the contrary in this Agreement, any Mortgagee of the Property
shall be entitled to the following rights and privileges:
9.1.1. Default under Agreement Does Not Impair Lien of any Mortgage. 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, the Leasehold Estate, or any Sub
Leasehold Estate made in good faith and for value, unless otherwise required by law.
9.1.2. Request for Notices of Default by Mortgagee. The Mortgagee of any mortgage
or deed of trust encumbering the Property, the Leasehold Estate, or Sub Leaschold Estate, or any
Exhibit 4 Ordinance No. NS-3071
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 the applicable Owner in the performance of such Owner's obligations under this
Agreement.
9.1.3. 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.
9.1.4. Lender Protection Provisions.
(a) Notices to Mortgagees, Mortgagee's Right to Cure.
(i) Notices to Mortgagees. City shall send to each Mortgagee which
has provided City written notice of its name and address, in the manner provided by Section 9.1
above, a true, correct and complete copy of any written notice sent to Owner or any Sub Ground
Lessee, as applicable, of a default by Owner or any Sub Ground Lessee under this Agreement at
the same time as and whenever any such notice of default shall be given by City to Owner or any
Sub Ground Lessee, addressed to such Mortgagee at the address last furnished to City by such
Mortgagee. Owner and each Sub Ground Lessee, as applicable, irrevocably directs that City accept,
and City agrees to accept, performance and compliance by any such Mortgagee of and with any
term, covenant, agreement, provision, condition or limitation on Owner's, or any Sub Ground
Lessee's, part to be kept, observed or performed hereunder with the same force and effect as though
kept, observed or performed by Owner and/or any such Sub Ground Lessee, as applicable, provided
that such performance and/or compliance is made in accordance with the provisions of Section
10.1.4 below.
(ii) Mortgagee's Right to Cure. Notwithstanding anything stated to
the contrary in this Agreement, this Agreement shall not be terminated as to any Project Phase
because of a default or breach hereunder on the part of Owner or any Sub Ground Lessee until
and unless:
(1) written notice of any such default or breach has been delivered
to Mortgagee in accordance with the provisions of Section 10.3 above,
(2) with respect to a default or breach that is curable solely by the
payment of money, Mortgagee, Owner and any applicable Sub Ground Lessee have failed to cure
such default or breach within thirty (30) days following the expiration of any of Owner's
and/or any Sub Ground Lessee's, as applicable, notice and cure periods set forth herein, and
(3) with respect to a default or breach that is not curable solely by
the payment of money, Mortgagee, Owner and/or any applicable Sub Ground Lessee have failed
to cure such default or breach within ninety (90) days following the expiration of any of
Owner's and/or any applicable Sub Ground Lessee's notice and cure periods set forth herein
or, if such default or breach is curable but cannot be cured within such time period, (i) Mortgagee
has failed to notify City within such ninety (90) day time period that Mortgagee intends to
cure such default or breach, (ii) Mortgagee fails to commence to cure such default or breach
within such ninety (90) day period, or (iii) Mortgagee fails to diligently prosecute such cure to
completion. It is expressly understood and agreed that no Mortgagee shall have any obligation
Ordinance No. NS-3071 Exhibit 4
hereunder to cure or complete any cure of any breach or default by Owner or any applicable Sub
Ground Lessee hereunder.
(b) Permitted Transfers to Mortgagee.
(i) Notwithstanding anything stated to the contrary in this
Agreement, the following transfers shall be permitted and shall not require the approval or consent
of City:
(1) A transfer of the Owner's or any Sub Ground Lessee's Leasehold
Estate or Sub Leasehold Estate, as applicable (and the concurrent transfer of the Owner's or any
Sub Ground Lessee's rights under this Agreement with respect to the Project Phase that is the
subject of the Leasehold Estate or Sub Leasehold Estate provided the conditions in Section 2.5.1
hereof have been complied with as to such Project Phase), at a foreclosure sale under a Mortgage,
whether pursuant to the power of sale contained therein or a judicial foreclosure decree, or by an
assignment in lieu of foreclosure, or
(2) Any subsequent transfer by a Mortgagee (or its nominee or
designee if the Mortgagee, or such nominee or designee, is the purchaser at such foreclosure sale
or under such assignment in lieu of foreclosure) with respect to the Leasehold Estate or any Sub
Leasehold Estate, and the concurrent transfer of the Owner's or any Sub Ground Lessee's rights
under this Agreement with respect to the Project Phase that is the subject of the Leasehold Estate
or Sub Leasehold Estate so transferred, provided that the conditions in Section 2.5.1 hereof have
been complied with as to such Project Phase.
(ii) Any transferee arising from any transfer permitted above shall be
liable to perform the obligations of Owner or any Sub Ground Lessee, as applicable, under this
Agreement only so long as such transferee holds title to the Leasehold Estate or Sub Leasehold
Estate, provided that upon any such conveyance of title, such transferee's transferee expressly
assumes and agrees to perform all of the obligations of this Agreement first arising after the date
of such conveyance to the extent applicable to the Project Phase to which such Leasehold Estate or
applicable Sub Leasehold Estate applies.
(iii) Following the transfer, if any, described in Section 10.1.3(b)(i)
above, all non -curable defaults existing under this Agreement prior to such transfer shall be deemed
waived without further notice or action of any party.
(c) Rights of Mezzanine Lender. Any lender that makes a loan to Owner or
to any Sub Ground Lessee, or to any entity holding an interest in Owner or any Sub Ground Lessee,
direct or indirect, that is secured by a pledge of equity interests in Owner or any applicable Sub
Ground Lessee, direct or indirect, shall be entitled to all of the rights and remedies under this
Section 10.1.3 that are afforded to a Mortgagee under this Agreement, (i) provided that Owner or
any applicable Sub Ground Lessee shall have provided to City written notice setting forth the name
and address of any such lender, and (ii) except that such rights and remedies shall be subject and
subordinate to the rights of any Mortgagee, and shall not impair any of the rights and remedies
afforded any Mortgagee, hereunder.
9.1.5. Obligations of Mortgagee Under Agreement. Any Mortgagee who comes into
possession of the Leasehold Estate, or a Sub Leasehold Estate, or any part thereof, pursuant to
foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the
Leasehold Estate or Sub Leasehold Estate -as applicable, or part thereof, subject to the terms of
Exhibit 4 Ordinance No. NS-3071
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 an Owner's
obligations or other affirmative covenants of an Owner hereunder, or to guarantee such
performance; provided, however, that to the extent that any covenant to be performed by an
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 shall be subject to
the provisions of Section 2.5 of this Agreement.
(a) 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 as applicable, 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 an Owner's obligations
or other affirmative covenants of an Owner hereunder, or to guarantee such performance;
provided, however, that to the extent that any covenant to be performed by an 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 shall be subject to the provisions
of Section 2.5 of this Agreement.
9.1.6. Fee Owners' Right to Encumber Proper. Fee Owners shall have the right to
encumber the fee title in the Property by any mortgage, deed of trust or other security device
securing financing for the fee title in the Property to the extent permitted pursuant to the terms of
(and subject to all the terms and conditions set forth in) the Ground Lease, and nothing in this
Agreement shall impair such right. Any Mortgagee of the fee title in the Property shall have all
the benefits of a Mortgagee provided in this Agreement, including the right to receive notice of
default and the right, but not obligation, to cure any default as permitted hereunder.
Notwithstanding anything to the contrary in this Section 9.1, a Mortgagee of the fee title shall
have no obligations under this Agreement except that upon any conveyance of fee title to such
Mortgagee, the Mortgagee shall assume the express obligations of the Fee Owners under this
Agreement.
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 against the
Property within ten (10) days following Owner's receipt of the fully -executed, recordable
Agreement from the City. 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 cause notice of such action recorded with the Orange County Recorder, and in
connection with any termination of this Agreement, in such form or by such recordable
instrument, that will allow a reputable title company to remove the Agreement as an exception to
title of the Property (a "Termination Release").
10.2. Entire A eement. 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
Ordinance No. NS-3071 Exhibit 4
be admissible in any proceeding of any kind or nature to interpret or determine the terms or
conditions of this Agreement.
10.3. Severability. If any term, provision, covenant or condition of this Agreement shall be
determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform taking
into consideration the purposes of this 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, and 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. This 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. Singular 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 shall have any
obligation under this Agreement except as expressly provided for herein.
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 party, 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. Third Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the parties and their successors and assigns, and no other person shall
have any right of action based upon any provision of this Agreement.
10.11. Force Man cure. 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: (1) strikes, lockouts or
labor disputes; (2) inability to obtain labor or materials or reasonable substitutes therefor
(including as a result of freight embargos); (3) inclement weather which delays or precludes
construction; (4) acts of God, including but not limited to earthquakes, or the public enemy or
civil commotion; (5) condemnation, (6) fire or other casualty; (7) shortage of fuel, electricity or
Exhibit 4 Ordinance No. NS-3071
natural gas; (8) action or nonaction of public utilities or of local, state or federal governments,
affecting the work, including, but not limited to, any delays in the permitting process as a result of
the action or inaction of such governmental authorities including government shutdown for a
period of time of one (1) week or more; (9) criminal acts or acts of terrorism; or (10) pandemic or
government imposed quarantine (11) 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 pursuant to this section 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 maybe 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 inequity 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.
10.16. Project 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 party is an independent
contracting entity with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint 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 the 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.
Ordinance No. N5-3071 Exhibit 4
10.19. Agent for Service of Process. In the event any 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 anytime 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 full 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 he 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.
[Signatures on following pages]
Exhibit 4 Ordinance No. NS-3071
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the
last day and year set forth below.
OWNER
RCR BRISTOL, LLC,
a Delaware limited liability company
By:
Name:
Title:
Dated:
CITY
City OF SANTA ANA, a California municipal
corporation
By:_
Mayor
Dated:
ATTEST:
By:
City Clerk
Dated:
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
City Attorney
Dated:
Ordinance No. NS-3071 Exhibit 4
JOINDER
Unless expressly defined herein, all capitalized terms used herein shall have the meanings ascribed to
such terms in the Development Agreement (the "Development Agreement") to which this Joinder is
attached.
The undersigned Fee Owners are hereby entering into this Joinder for the sole purpose of subjecting their
fee title to the Property to the burden and effect of the Development Agreement and, upon the recording
of the Development Agreement in the Official Records of Orange County, fee title to the Property shall be
encumbered by all of the terms and conditions of the Development Agreement; provided, however,
notwithstanding the foregoing, the City acknowledges and agrees that unless the Fee Owners hereafter
execute an Assigmment and Assumption Agreement in a form approved by Fee Owners and the City in
the manner described in Section 2.5.1 of the Development Agreement (the "Approved Form"), the Fee
Owners (including members, partners, officers, agents or representatives of Fee Owners) shall have no
Iiability, rights or obligations under the Development Agreement except for such rights or obligations
expressly set forth for the benefit or burden of Fee Owners under the Development Agreement. Unless
and until an Assignment and Assumption Agreement, in the Approved Form, is executed by the Fee
Owners and City, City shall have no recourse against the Fee Owners or the fee title to the Property. Fee
Owners shall receive notice of default and have the right, but not obligation, to cure any default as
permitted in Sections 9.1.2 and 9.1.3 of the Development Agreement. Fee Owners and their lenders shall
be entitled to receive a Certificate of Compliance upon request as provided in Section 10.20 of the
Development Agreement. In addition, in the event that the Ground Lease is terminated, Fee Owners shall
thereafter have the right to terminate the Development Agreement upon written notice to City, in which
event the City shall cause to record a Termination Release with the Orange County Recorder. For
avoidance of doubt, no modification of the Development Agreement pursuant to Section 2.7 of the
Development Agreement shall limit or impair the rights of Fee Owners under this Joinder without the
consent of Fee Owners.
Greenville Ranch, LLC,
a California limited liability company
Alice Z. Callen, President
Louise A. Callens, Secretary/Treasurer
Executed as of .2024
Exhibit 4 Ordinance No. NS-3071
MCG Bristol West, LLC,
a California limited liability company
David W. Cortney, Manager
Executed as of , 2024
BSG West Bristol, LLC,
a California limited liability company
LOIN
Robert Bradley Gisler, Manager
Susan E. Gisler, Manager
Executed as of , 2024
Ordinance No. NS-3071 Exhibit 4
EXHIBIT "A"
(Legal Description of the Property)
WWI
PARCELS 1 AND 2, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 40, PAGES 5 AND 6 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, CAUFORNIA.
EXCEPTING FROM SAID PARCEL 2 THAT PORTION THEREOF CONVEYED TO THE CITY
F SANTA ANA BY HEED RECORDED MAY 17, 1972 IN BOOK 10130, PAGE 417, OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS.
BEGINNING AT THE WESTERLY TERMINUS OF THAT CERTAIN COURSE Its THE
NORTHERLY BOUNDARY OF PARCEL 2 OF SAID MAP THAT READS NORTH 89' 03' 58"
WEST 74.47 FEET, THENCE CONTINUING ALONG $AID NORTHERLY BOUNDARY NORTH
SP 12' 27" W1=�T 75.11 FEET TO A POINT ON A NON -TANGENT CURVE CONT'.AVE
SOUTHEASTERLY HAYING A RADIUS OF 30.00 FEET, A RADIAL AT SAID POINT SEARS
NORTH 39' 01' 25" WEST; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY
SOUTHWESTERLY 5.30 FEET ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 10' 07' 33' TO A POINT ON A LINE PARALLEL WITH AND 59.00 FEET
SOUTHERLY FROM THE CENTERLINE OF MAC A RTHUR BOULEVARD AS SHOWN ON SAID
MAP, A RADIAL. AT SAID POINT BEARS NORTH 4T 08' 58" WEST; THENCE LEAVING
SAID CURVE ALONG SAID PARALLEL LINE SOUTH 89` 03' 58" EAST A DISTANCE OF
78.76 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
PARCELS L, 2, 3 AND 4 IN THE CITY OF SANTA ARIA, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 79, PAGES 19 AND 20 OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Exhibit 4 Ordinance No. NS-3071
EXHIBIT `B"
(Map of the Property)
Project Site ��
Ordinance No. NS-3071 Exhibit 4
EXHIBIT "C"
Development Plan and list of Project Approvals
Development Plans and entitlement applications as presented in the City Staff Report Dated September
17, 2024 are incorporated herein by reference. Project Approvals include, but may not be limited to the
following entitlements:
1. The Final Supplemental Envirommental Impact Report entitled "Related Bristol Specific Plan
Final Environmental Impact Report" (State Clearinghouse House No. 2020029087 and City of
Santa Ana Development Project No. 2022-31 ("Project FEIR" ), which tiers off the GPU FEIR
(SCH# 2020029087) that was certified by the City on April 19, 2022.
2. The "Related Bristol" Specific Plan, dated July 2024, adopted by the City Council on October 1,
2024, by way of Ord. No. NS-3070.
3. The Vesting Tentative Tract Map, dated July 29, 2024, approved by the City Council on
September 17, 2024, by way of Resolution No. 2024-055.
4. The Zoning Map Amendment, adopted by the City Council on October 1, 2024, by way of Ord.
No. NS-3070.
55394.00062\41973390.25
Ordinance No. NS-3071
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