HomeMy WebLinkAbout11A - ORD AMEND DA AGMT MACARTHUR
ORDINANCE NO. NS -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING AN AMENDMENT TO THE
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
SANTA ANA, GRAND PLAN 2, LLC, INTEGRAL
COMMUNITIES I, INC., AND NDC SKYLINE ASSOCIATES,
LLC, FOR PROPERTY LOCATED AT THE SOUTHEAST
CORNER OF MAIN STREET AND MACARTHUR
BOULEVARD
THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS:
SECTION 1: The City Council hereby finds, determines and declares as follows:
A. The City is authorized pursuant to Government Code Sections 65864
through 65869.5 to enter into and amend 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.
B. On July 5, 2005, the City Council adopted Ordinance No. NS-2691,
approving a Development Agreement with Grand Plan 1, LLC, and Grand Plan 2, LLC,
for a mixed use project, including three high rise condominiums, at the corner of Main
Street and MacArthur Boulevard in the City. Subsequently, these entities assigned a
portion of the project, known as the Integral element, to Integral Communities, Inc., a
Delaware Corporation, and a portion of the remainder from Grand Plan 1, LLC to NDC
Skyline Associates, LLC, a Delaware Limited Liability Company.
C. The City enters into this First Amendment to Development Agreement
pursuant to the provisions of the Government Code and applicable City policies.
D. The Planning Commission has, following a duly noticed public hearing, on
or about May 12, 2008, recommended approval of this First Amendment to Development
Agreement.
E. Entering into this First Amendment to Development Agreement would make
only minor changes to the project by (1) removing the requirement that the Owner 0 place
two gateway entry signs in the public right-of-way with the cost offset against the public art
otherwise required for the project, (2) alter the timing of public art to be installed as part of
the project from all at the outset, to spread out over four phases of the project, and (3)
Ordinance No. NS-
Page 1
11 A-1
require Grand Plan 2 and NDC Skyline to be responsible for public art for its three phases
of the project, and Integral Communities I to be responsible for the public art for its one,
single phase.
F. The City Council has held a noticed public hearing on this Ordinance, and
has considered all testimony presented thereto.
G. The City Council has, on June 20, 2005, approved and certified an
Environmental Impact Report (EIR) in conjunction with this project and adopted a
mitigation monitoring plan together with findings and a statement of overriding
considerations. A notice of determination was subsequently filed for this project. The
Council approves this amendment based upon this pre-existing environmental
documentation and finds that there is substantial evidence in the record, with respect to
this minor Amendment, that:
1. There are no subsequent changes proposed in the project which will require
important revisions of the EIR due to new significant effects not considered in the
EIR; and
2. There are no substantial changes occur with respect to the circumstances
under which the project is undertaken which will require important revisions in the
EIR due to the involvement of new significant effects not considered in the EIR;
and
3. There is no new information relating to the significant effects of the project
and means of reducing or avoiding those effects, which was not known and could
not have been known at the time the EIR was certified or adopted; and
4. No minor technical changes or additions are necessary to the EIR.
SECTION 2: The First Amendment to Development Agreement, a true and
correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City
Manager and Clerk of the Council are authorized to execute it on behalf of the City. The
Clerk of the City is hereby authorized and directed to cause this First Amendment to
Development Agreement to be recorded with the County Recorder's Office.
Ordinance No. NS-
Page 2
11 A-2
SECTION 3: 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 anyone or more sections,
subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
ADOPTED this
day of
,2008
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Ordinance No. NS-
Page 3
11A-3
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS-
Page 4
11A-4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza M-30 P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE ~ 6103
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA,
THE GRAND PLAN 2, LLC,
NDC SKYLINE ASSOCIATES, LLC,
and
INTEGRAL COMMUNITIES I, INC.
Dated: , 2008
EXHIBIT 1
DOCSOC/ I 275524 v9/024579-000 I
11A-5
FIRST AMENDMENT TO
DEVELOPMENTAGREEMENTBET~EN
THE CITY OF SANTA ANA, GRAND PLAN 2,
NDC SKYLINE ASSOCIATES, LLC, AND
INTEGRAL COMMUNITIES I, INC.
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("First Amendment") is
entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly
authorized under the Constitution and laws of the State of California ("City"), and THE GRAND
PLAN 2, LLC, a California limited liability company ("GP2"), NDC SKYLINE ASSOCIATES,
LLC, a Delaware limited liability company ("Skyline") and INTEGRAL COMMUNITIES I, INC.,
a Delaware corporation ("Integral Communities I").
1. This First Amendment is entered into with reference to the following facts:
1.1 The Grand Plan 1, LLC, a California limited liability company ("GP1") and
GP2, on the one hand, and City, on the other hand, entered into that certain Development Agreement
dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as
Instrument No. 2005000565108 ("Development Agreement") pursuant to which, among other things,
Owner (as defmed in the Development Agreement) is required to install Signs and Public Art at a
cost of not to exceed Five Hundred Thousand Dollars ($500,000) all of which was to be installed
prior to the issuance by the City of the first certificate of occupancy for any Element. GP1 and GP2
subsequently a~signed its rights and obligations under the Development Agreement with respect to
Lake Towers to Skyline and GP1 assigned its rights and obligations under the Development
Agreement with respect to Integral to Integral Communities 1. Capitalized terms not defined herein
shall have the meaning set forth in the Development Agreement.
1.2 Skyline, GP2, and City now desire to amend the Development Agreement so
as to remove the requirement for the installation of the Signs and to provide phasing for the
installation of the Public Art.
2. Section 2.54 and 2.59 are hereby deleted in their entirety.
3. Section 5.1.7 is hereby deleted and replaced with the following:
SECTION 5.1.7. Development, Construction and Completion of
Public Art. Owner shall include within the Project, a single or grouped
permanent work(s) of public art consistent with the Public Art Plan (the
"Public Art") at a cost not to exceed Five Hundred Thousand Dollars
($500,000) ("Public Art Fee").
4. EXHIBIT B, PUBLIC ART PLAN is hereby deleted and replaced with the document
attached hereto and referenced as Exhibit B.
5. Except as amended herein the Development Agreement shall remain in full force and
effect in accordance with its terms.
DOCSOC/1275524v I 0/024579-000 I
11A-6
IN WITNESS WHEREOF, this First Amendment has been executed by the City of
Santa Ana and by Owner.
Dated this _ day of
,2008.
THE CITY OF SANTA ANA, a charter city and
municipal corporation duly authorized under the
Constitution and laws of the State of California
By
DAVID N. REAM
City Manager
Approved as to Form:
By
[Signatures continue on following page]
2
DOCSOC/I 275524v I 0/024579-000 I
11A-7
THE GRAND PLAN 2, LLC, a California limited
liability company
By ~ /to j-.
Name e.u.c--\-\"" R. 0\ ")'OV\
Its M ~ 1Y\\i, r
NDC SKYLINE ASSOCIATES, LLC
a Delaware limited liability company
4-/1DJ-
By
Name c..u.r'..\-;~ 1< Ol"iDV\
Its rre.~id.~f'\\-
INTEGRAL COMMUNITIES I, INC., a Delaware
:~~
Name c.Yo.1 ~ MltV\(J^,l 5+-.RA
Its fY.e.~; d OJtL.:r
3
DOCSOC/1275524vIO/024579-0001
11A-8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~~~~._._._._._._._._._._._.. .
County of
}
State of California
On
Date
before me,
Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Top of thumb here
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
RIGHT THUMBPRINT
OF SIGNER
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
Signer Is Representing:
@2oo7NationalNotaryAssociation.9350 De SotoAve...p.o:Bo~2.w2:Ch~;':;o"rth~cA913=
11A-9
STATE OF CALIFORNIA )
) ss.
COUNTYOF OnAlJG-E )
On 1vn to '1"/ 'l.Coc:t before me, ~~..Hhew ~_:-'~q Lttm(;t V1 , Notary Public,
personally appeared Cl.tf~'5 (2.. _Lon , who proved
to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Cali fomi a that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
$~~
SIGNATURE OF NOTARY PUBLIC
~ A A A A A A A MAtTHEW a.KAUFMAN A~
Z. COMM. # 1677672 G)
::iE NOTARY PUBLIC - CALIFORNIA ~
(!) ORANGE COUNTY ....
j v v v ~ v v ~~ ~;ni~~~: ~P~~JU~ ~. ~o~ t
DOCSOC/I275524v I 0/024579-0001
11 A-1 0
STATE OF CALIFORNIA
COUNTY OF
DrV1nge"
)
) ss.
)
On JJ.tJ.A!I ?fbJw(/b before me, , Notary Public,
personally $peared' , who proved
to me on the basis of satisfactory eVIdence to be the ~son~ whose names0 I are subscribed to
the within instrument and aCknOW~ld ed to me that~helthey executed tlie same iI~er/their
authorized capacity~ and that b . s er/their signature% on the instrument the pers~, or the
entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
~~~
SIG TU OF NOT Y PUBLIC
J--------------
@ LINDSEY FIFE
- CommissIon # 1573489 ~
i . M~ Notary Public. California f
Orange County -
My Comm. expIres Apr 26, 2009
DOCSOC/I 275524v I 0/024579-000 I
11 A-11
EXHIBIT B
PUBLIC ART PLAN
1. The Public Art shall be designed, constructed and installed by the Owner.
2. A Final Design Plan, with respect to the Element for which building permits are first issued
(the "First Element"), shall be submitted to the City's Planning Commission within thirty
(30) days prior to the issuance of a Final Certificate of Occupancy for the First Element;
thereafter a Final Design Plan for each subsequent Element (combining Cinema Towers and
the Condo/Office Project) shall be submitted to the City's Planning Commission within one
hundred fifty (150) days prior to issuance of a Final Certificate of Occupancy for such
subsequent Element (combining Cinema Towers and the Condo/Office Project). The Final
Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more
specific locations and/or application, and (ii) specify the timing of the installation of the
Public Art which installation shall occur not later than the first (1st) anniversary date of the
City's approval of the Final Design Plan for each respective Element, but in no event shall all
required Public Art be installed later than ninety (90) days following the first utility release
on the last Element to be constructed. Owner shall have committed, by written contract, to
expend not less than One Hundred Twenty-Five Thousand Dollars ($125,000) in connection
with the Public Art upon the issuance of a certificate of occupancy for each of the following
(i) Lake Towers, (ii) Cinema Towers and/or the Condo/Office Project, (iii) Integral, and (iv)
Retail Project, but in no event exceeding an aggregate of Five Hundred Thousand Dollars
($500,000). Skyline shall be responsible for the Public Art for Lake Towers and GP2 shall
be responsible for the Public Art for all other Elements.
3. The Public Art should invite participation and interaction, inspire, add local meaning,
interpret the community by revealing its culture or history, and/or capture or reinforce the
unique character of the new place.
4. The Public Art should be constructed using durable materials and finishes including but not
limited to stone or metal.
5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime
location visable to the public and sited to complement features such as plaza or architectural
components so that the Public Art is an integral part of the development site.
6. No Public Art shall include advertising of any type, including but not limited to products,
services or businesses.
7. All Public Art shall be properly maintained at all times, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
8. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public
Art to one or more Owners' Association(s).
B-1
DOCSOC/I 275524v I 0/024579-000 I
11 A-12
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses not included in the Public Art Fee.
1. Expenses to locate the artistes) (e.g., airfare for artist interviews, etc.)
11. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
111. Landscaping around Public Work(s) of Art that is not included as part of the artist's
sculpture furnishings, including, but not limited to, functional structures,
prefabricated water or electrical features not created by the artist, and ornamental
enhancements.
IV. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integral to the illumination of the Public Art.
VI. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
V11. Dedication ceremonies, including sculpture unveilings or grand openings.
B-2
DOCSOC/I 27 5524v I 0/024579-000 I
11 A-13
CONSENT OF LENDER
The undersigned ("Beneficiary") holds the beneficial interest in that certain Deed of
Trust recorded in the Office of the County Recorder of Orange on September 7, 2006 as
Instrument No. 2006000598226 (as amended or modified, the "Indymac Deed of Trust"),
which Indymac Deed of Trust encumbers all or a portion of the Property covered by the First
Amendment to Development Agreement ("Amendment"). The undersigned hereby
consents to the foregoing Amendment and agrees that the Amendment shall continue in full
force and effect, even in the event of foreclosure or trustee's sale pursuant to such Indymac
Deed of Trust, or any other acquisition of title by the undersigned, its successors or assigns,
of all or any portion ofthe real property covered by such Indymac Deed of Trust.
Dated: ~ INDYMAC BANK, FSB
BY.~
Na~e: \,\\t~ ~
Title: Il<- ~ '{ "'~ I~(\;--
STATE OF CALIFORNIA
)
)
)
ss.
COUNTY OF LOS ANGELES
On May 30, 2008 before me, Ofelia E. Tejada, Notary Public, personally appeared
Anthony Huitrado who proved to me on the basis of satisfactory evidence to be the personEsT
whose name(.s-) is/~ subscribed to the within instrument and acknowledged to me that
he/s~y executed the same in his~ir authorized capacity(~), and that by
his/her/their signature(-s3 on the instrument the person(s.), or the entity upon behalf of which
the personCs} acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Signature
r' - - - ~ - ~ ~ - ~ ~ i P TI ~ , ~.,.
@ OFELIA E. TEJADA
Commt..lon # 173101 1
i .. Notary Public . callfOrnta'
J ',' ~g.", co~n~n j
-~-~~-~--~e~~J~-
WITNESS my hand and official seal.
11 A-14
CONSENT OF LENDER
The undersigned ("Beneficiary") holds the beneficial interest in that certain Deed of
Trust With Assignment of Rents, Security Agreement and Fixture Filing recorded in the
Office of the County Recorder of Orange on August 23, 2005 as Instrument No.
2005000664545 (as amended, the "BOA Deed of Trust"), which BOA Deed of Trust
encumbers all or a portion of the Property covered by the First Amendment to Development
Agreement ("Amendment"). The undersigned hereby consents to the foregoing
Amendment and agrees that the Amendment shall continue in full force and effect, even in
the event of foreclosure or trustee's sale pursuant to the BOA Deed of Trust, or any other
acquisition of title by the undersigned, its successors or assigns, of all or any portion of the
real property covered by the BOA Deed of Trust.
Dated: G,{Z{OB
BANK OF AMERICA, N.A.
By:{dQ~
Name: -ANNE t.:. FQ:>~ .............
c> .
Title: ::>2.. V\CE ~--s \b~
STATE OF CALIFORNIA )
) ss.
COUNTY OF On,Lng li.- )
On ,j /).fl~ .:L l ;WI) I(' before me, j'. Awrd-- , Notary
Public, personally appeared Anne. L-. 'fet:lrO() , ,
who proved to me on the basis of satisfactory evidence to be the person~whose namesCsJ
0sy.aFe subscribed to the within instrument and acknowledged to me that~/they-executed
the same in his~tfteir authorized capacity(ies), and that by ~their signature(s} on the
instrument the person(M, or the entity upon behalf of which the person(~ acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
r.~-f~-?i 1I1~r -91
@ eommlllloh # 1162.10
c.- , _: Notary Public - California I
~ ," '. " Orange County ~'
" ~.:... .,.' .~"' c.mrn. EJq:.""3S Aug 21. 2011 I
'.~""'."+--.:j'i 1t~........._................
l,ry1 tl,~ -F Tl-1W.t - - -1
. eommIaIlOn # 176lleo
.., Notary Public - CQllfornICI I
Orange County ..
J~'_ _ _ ~ _~~~~2~'~~~1
11 A-15
CONSENT OF LENDER
The undersigned (as successor-in-interest to Fremont Investment & Loan, a
California industrial bank, "Beneficiary") holds the beneficial interest in that certain Deed of
Trust and Fixture Filing recorded in the Office of the County Recorder of Orange on June 20,
2006 as Instrument No. 2006000411437 (as amended, the "iStar Deed of Trust"), which
iStar Deed of Trust encumbers all or a portion of the Property covered by the First
Amendment to Development Agreement ("Amendment"). The undersigned hereby
consents to the foregoing Amendment and agrees that the Amendment shall continue in full
force and effect, even in the event of foreclosure or trustee's sale pursuant to the iStar Deed
of Trust, or any other acquisition of title by the undersigned, its successors or assigns, of all
or any portion ofthe real property covered by the iStar Deed of Trust.
c,lq/o~
Dated:
1ST AR FM LOANS LLC
4tb~
By:
Name: Rlt GIl..t..E/lnT,-9.Al
Title: VIU I#.f I i1~^,"-
STATE OF CALIFORNIA )
) ss.
COUNTY OF Dv'l.:J I' )
On ftll)L 7. 2bo$ before me, (here insert name and title of the officer),
personally appeared Fl.;rL h,ll...V'.....2A1 who proved to me on the basis of satisfactory
evidence to be the personEsJ-whose name(~ is/ate subscribed to the within instrument and
acknowledged to me that he/s~y executed the same in hisllrerfthe.ir authorized
capacity~ and that by his/hei:4l:teir signaturef&-) on the instrument the perso11W, or the
entity upon behalf of which the personE4acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
~"
Signature
<-::~~
~~~~~~~~----~~
.' DWNNE ZEE ZANDERS
. . ...... .... Commission # 1695394
-. z
~ . Notary Public - California ~
Orange County
My Comm. Expires Cct3, 2010
WITNESS my hand and official seal.
(Seal)
11 A-16