HomeMy WebLinkAboutNS-2769 - Approving an Amendment to the Development Agreement Between the City of Santa Ana, Grand Plan 2, ...
ORDINANCE NO. NS-2769
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 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) 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.
Ordinance No. NS-2769
Page 1 of 16
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.
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.
Ordinance No. NS-2769
Page 2 of 16
ADOPTED this ih day of Julv, 2008.
I el A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
AYES: Councilmembers: Alvarez. Benavides, Bustamante. Martinez.
Pulido. Sarmiento, Tinaiero (7)
NOES: Councilmembers: None (0)
ABSTAIN: Councilmembers: None (0)
NOT PRESENT: Councilmembers: None (0)
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-2769 to be the original ordinance adopted by the City
Council of the City of Santa Ana on Julv 7.2008, and that said ordinance was published
in accordance with the Charter of the City of Santa Ana.
/'/
Date: 7-0'7 -0&
-... ,
Patricia E. Healy
Clerk of the Council
City of Santa Ana
Ordinance No. NS-2769
Page 3 of 16
Ordinance No. NS-2769
Page 4 of 16
Page intentionally left blank
A.200S-204
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
Saota An., 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 SK.YLlNE ASSOCIATES, LLC.
aDd
INTEGRAL COMMUNITIES I, INC.
Dated: :f l.L \~ 7. 2008
DOCSOCi 127S524v 101024570)..0001
Exhibit 1
Ordinance No. NS-2769
Page 5 of 16
A-200B-204
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA, GRAND PLAN 1,
NDC SKVLISE ASSOCIATES, LLC, AND
INTEGRAL COMMIDH11ES I, INC.
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (~FiIllt Amendment") is
entered into between THE CITY OF SANTA ANA, a chart... city and municipal corporation duly
aulborized under Ibe Constitution and laws of the Stale of California ("City''), and THE GRAND
PLAN 2, LLC, a California limited liability company ("GP2"), NDC SKYLINE ASSOCIATES,
LLC, . Delaware limited liability company ("Skyline") and INTEGRAL COMMUNITIES I, INC.,
a Delaware corporation e'lntegral CommlDlities I").
I. This First Amendment is enlered into with reference to Ihe following facts:
1.1 The Grand Plan I, LLC, a Califumia limited liability company ("OP 1'1 and
GP2, on the one hand, and City, on the other hand, entered into that certain Developmenl Agreement
dated August 4, 200S and recorded in the Orange County Official Records on Iuly 21, 200S ..
Inslrumeul No. 200S000S6S I 08 ("Development Agreement") pursuanl to which, among other thingll,
Owner (as defined in Ibc Development Agreemenl) is required to install Signs and Public Art al a
cost of not to exceed Five Hundred Thou"""d Dollars ($500,000) all of which was to be insralled
prior to the issuance by Ihe City of the first certificate of occupaocy for any Element. GPI and GP2
subsequently ..signed its rigbts and ohligations under the Development Agreement wilh respeclto
Lake Towers to Skylino and GPI assigned its rights and ohligations under the Development
Agreement wilb respect to Integral to Integral Communities I. C.piralized terms not defined herein
,hall h,ve the me.ning set forth in the Development Agreement.
l.2 Skyline, GP2, and City now desire to amend the Development AgreelDODt so
as to remove the requirement for !he insrallation of Ihe Signs and to pro.;de phasing for Ihc
installation of lbo Public Art.
2. Section 254 .nd 2.S9 are hereby deleted illlhoir entirety.
3. Section S.1.7 is hereby deleted and replaced with the following:
SECTION 5.1.7. Development. Co..truellon and Complellon of
Publie Art. Owner shall include within the Projec~ a single or grouped
permanenl wnrlc(sJ of public art conaistent wilb the Public Art Plan (the
"Public Art") at a COlIt not to exceed Five Hundred Thousand Dollars
($500,000) ("Public Art Fee").
4. EXHIBIT B, PUBLIC ART PLAN is hereby deleted .nd repl....>d wilb Ibe document
attached bereto and referenced .. Exhibit B.
5. Except as .mended herein the Development Agreement shall remain in full force and
effect in accordance with its terms.
DOC'SOC/127S524v I 01024' 79-0UO 1
Ordinance No. NS-2769
Page 6 of 16
IN WITNESS WHEREOF. tbis First Amendment bas been executed by Lbe City of
Santa Ana and by Owner.
Dated mis ~ day of~. 2008.
THE CITY OF SANTA ANA, a cbartercity and
municipal corporation duly aumorized under the
Constitution and Jaws ofthe State of California
By
() /)] (Z
DA v!:::::t: P I.
City MaDager
Approved as to Form:
~
-. ~/'/~.
- - l\fc- ~
PAl'lWOIA ..~
CLIRK tJ/I ",. 00IINC1L
[SigD.tur.. cODdDU. 00 ColWwiog pallO)
2
DOCSOClt27SS24vlOl024S79-OOO1
Ordinance No. NS.2769
Page 7 of 16
THE GRAND PLAN 2, LLC, a California limited
liability com"""y
By
Name ruei-;.
Its rY\",,^ .",
~fU>-
R.Ob."
~
NDC SKYLINE ASSOCIATES, LLC
a Delaware limited liability company
~A-oJ--t'
By
Name C u....li~ R.O\.<.I"\
Its 1'rl'o(~a....\~
INTEGRAL COMMUNITIES I, INC., a Delaware
corporation /
., (/~
Name ~i~; AI\/'buJ.ri:tN"
It' _pr-., I
3
Ordinance No. NS-2769
Page 8 of 16
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~~~.~ ---~~'-----"'--'''''-~~''''~~
Counly of --L'r "-'" 1~ -
On ~(~ 10, .,;)r,t) R before me,
"""
personally appeared l>tt v ; c\ /J
- - }
Stata of California
s..."J..-...
Re-,UV>,
Am\~;1 ~~rr f1.hlic...
Hlll'(IllIlMIrNllmo lief.,.,. 100"
fl Ill'''' ~l
~
who proved to me on the basis of satisfactory evidence to
be the persOl)lS1 whose nama~ubscribed to the
within instrument and acknowledged to me that
~9AI=I8Y 8lteCuted the same i~ authorized
capac/tylietll. and that byd5Jill ,g,,'Aair signature.lsl on the
instn.rnent the person.laf. or the antity upon behalf of
which the person,(s)" acted. executed the instrument.
@ INlDIIAAIoICI
OCt.... I .'INI711
-., PIMl. c_...
00cI9 c:o.nr
Ill\'CamnI. ....._..
I cerlny under PENALTY OF PERJURY under the laws
of the State of California thaf tha foregoing paragraph is
lrua and correct.
WITNESS my hand and official
Signature.d
OPTIONAL
Though the Informat!on below Is not requ;rtKi I:l:Y law, It may Prr:Jve vallJ8ble fO persons retylflQ on ffle document
and could prevrJnt fraudul9fl! removal and f9ltftachmflnl 01 this form to another document.
Plaoo NoIa'y Seill AalMe
I.
Description 01 At1ached Document
Title or Type of Document: ___F:rs;+ Ar,iJ!'"LdF>>(:.",+. -Ii) h'A~eJ~1i')n>.pPr-j-- A:J(~ ~ri--
Document Dete: ..j:U,~ .Lip ,-;)00<;( _Nu:""r of Pages: ~.
Signer(s) OlherThan Nomod Above: ("...1.', I?f'~ .r<"J. C..:] I'i\",,(~~
Capaclty(les) Claimed by Signer(s}
Signer's Name: ~\~0>-""-....,
_J Individual
.7 Corporate Officer - Tillo(s): Gry (t~....
11 Parlner - r. limited :J General
o Attorney In Facl
r, Trustee
::J Guardian or Conservator
I Other:
TQrJ Cl tJ1umb "ere
Signer's Name:
n Incividual
L: Corporate Ofticer - Tille{s):
o Parlner - L Limited I . General
o Attorney in Fact
:J Trustee
U Guardian or Conserva1or
o Other:
Signer Is Representing. ___
Signer Is Represenllng:__._
~~~~~'"V~...~-~ ;_':'::.':':.lo2~.._~____~~
~<'OO7NcrlicnoJlN~.&I';Allw::,aIla"'!iI~ D.SclD,Iwa,.p'oEIoJ;24112~Cllat8w0ft" CA 91313.~.-.t.Ibo'\ll~lIIIry.Ql'g 1Io!1m*5W7 Roordo-.c..IITolI-Ftoel8()O..f~V
Ordinance No. NS-2769
Page 9 of 16
STATE OF CALIFORNIA )
) ...
COUNTY OF 0 rI.AUG-tE" )
On Junto II" 'I..~0Ct( before me, ~~heW~. ~m4j1) , Notary Public,
personally appeared Cur.\;".. t2.. ~LY"I , who proved
to me on the ba.is of satisfactory evidence to be the person(s) whose names(s) i./are subscribed to
the within instrument and acknowledged to me that helsbelthey executed the same in hislher/their
authorized capacity(iea), and thai by hislherltheir signature(.) on the iMtrument the person(.), or the
entity upon behalf of which the peraon(s) acted, executed the inslrument.
I certify under PENALTY OF PERJURY under the law, of the State of California that the foregoing
paragraph i. true and correct.
V.1TNESS my hand and official .eaI
~/~~ ---
SIGNATURE OF ARY PUBLIC
~.. . , .. "i~]T~EW B. KAUFUAN . ~
-. COIolIol. # 1677672 i!
i NOTARY puIlUC-CAUFORNlo\ Z
C> (:j:(,Io,NG: COONTY ....
~y y., y" 1~u..~;!r.EXIi'e~Ju!~~~t
OOCSOCII21.SS24vIOt'024:'i79.0001
Ordinance No. NS-2769
Page 10 of 16
ST A TF. OF CALIFORNIA )
) 55.
COUNTY OF ~ )
On MnAA"1.DJ ,_ before mo, ~ , Notary Public,
pers~ ____ . who proved
to me on tho basis of satisfact evidence to be tbe ~ wbose namesjoif'Ware subscribed to
the within instrument and acknowl~ to me that(!j/shelthey executed tbeiamo in~er/their
authorized c.p.cit~ and thaI b~~er/lheir signatur~ on the instrument the pe~. or the
entity upon behalf of wbieh the persorjia(aeted, exeouted the instrumenL
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correcL
WITNESS my hand and official seal
~vndo& ~~
S ;fruREOP~ARY L1C
1.- - - - ~:~:;3:9- ~
NoIaoyl'UbllO. ~ .
Orange COI.I1Iy -
MyCcmm.~J\p'26. 2"' ,.,
DOCSOCII27SS24vlOl024S79-OOO1
Ordinance No. NS-2769
Page 11 of 16
EXHIBIT B
PUBLIC ART PLAN
l. The Public Art shall be designed, constructed and installed by the Owner.
2. A F i na I Design Plan, with respect tn the Element for which building pcnnits are lirst issued
(the "First Element"), shall be submilWd to the City's Planning Commission within Ibirty
(30) days prior to the issuance of a Final Certificate of Occupancy for the First Elemcnt;
thereafter a Final Design Plan fur 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 Pinal 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 Iban the first (1st) anniversary dote of the
City's approval of the Final Design Plan for esch 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 comntitled, 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 Ibe following
(i) Lake Towers, (ii) Cinema Towers andlor the Condo/Office Project, (iii) Integral, and (iv)
Retail Project, but in no event exceeding on aggregate of Five Hundred Thousond Dollars
($500,000), Skyline shall be respon,ible 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 communily 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 u..ing durable materials and finishes including but DOt
limited to stone or metal.
5. 'Ibe Puhlic Art sbould be comprised of. single or grouped permanent worlc(s) at a prime
localion visable to the public and sited to complement features such as pla.a or architectural
components 80 that the Public Art is on intcgrsl part of the development site.
6. :-10 Public Art shall include advertising of any type, including but not limited to product..
services or businesses.
7, All Public Art shall be properly maintained at all limes, be free of any graffiti and shall not
incorporate any flashing or distracting form of illumination.
8. The Owner may 8S8ign ownership, maintenance and/or repair responsibilities of the Public
Art to one or more Owners' Association(s),
B-1
DOC'SOC/127SS24". I 01024579-000]
Ordinance No. NS-2769
Page 12 of 16
9. All Public Art shal] remain on the Property and may not be removed without the approval of
the Planning Commission.
10. Expenses nor included in the Public An Fee.
i. Expense. 10 locate tbe artist(.) (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fecs incurred in connection with the Public
Work(.) of Art.
iii. Landscaping around Public Work(.) of Art that is not included as pari of the arti.t's
.culpture furnishings, including, hut not limited 10, functional .tructures,
prefabricated water or electrical features nol crealed by the artist, and ornamental
enhancements.
iv. Utility fees associated with activating electronic or water generated artwork.
v. Lighting elements not integrsl to the illumination of the Public Ar!.
vi. Jlublicity, public relations, photographs, educational materials, business letterhead or
logos hearing artwork image,
\;i. Dedication ceremonies, including sculpture unveilings or grand openings.
B-2
OOCSOC/127:5S24vIU/024579 0001
Ordinance No. NS-2769
Page 13 of 16
CO:-.lSENT OF LENDER
The undersigned ("Beneficiary") holds the beneficial interest in that certain Deed of
Trust recorded in tbe Office of the County Recorder of Orange on September 7, 2006 as
Instrument No. 2006000598226 (as amended Or modified. the "Indymac Deed of Tru.n.
which Indymac Deed of Trust encumbers all or a portion of the Property covered hy the First
Amendment to Development A!\feement ("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'. 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 ohhc real property covered by such Indymac Deed ofTrus!.
Dated: S: 2;:>._~
INDYMAC BANK, FSB
~~~.-...
Title: \ .t
STATE OF C^,JFORNIA
)
)
)
ss.
COI}NTY OF LOS ANGELES
On May 30, 2008 before me. Ofelia E. Tejada. Notary Public. personally appeared
Anthony J luitrado who proved to me on the basis of s.tisfaetory evidence to be the person~
whose n.me(o:l isl__ subscribed to the within instrument and acknowledged to me th.t
he;sh.l~h.y executed the same in hislherll!leir authorized capacity(iee), and that hy
hiS/h..II'.;' signature(..;- on the instrument the person(sr, 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.
Signature
fUU- -mL~I'-_--1
fit Cam_ 1117".'
j Nolaoy _ . CD...... ,
Loa AneMo c""",,
J......~~",~,~
(Scali
Ordinance No. NS-2769
Page 14 of 16
CONSENT OF LENDER
The undersigned ("Beneficiary") holds the beneficial interest in that certain Deed of
Trost 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 Trost
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 tru.tec's sale pursuant to the BOA Deed of Trusl, 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:~
BANK OF AMERICA, N.A.
Br-C1 ~ ~\~
Name: E ,-.
Title: ",,,,,.,,.,,,,, ~~ ,o..o.r;
STATE OF CALIFORNIA )
) 55.
COUNTY OF Or"'4.I\:J~ )
On ::rWlt..~, ~po8' before me, S. AM'!! ' Notary
Public, personally appellTed AI\I1t.. I-.--P~
~ho proved to me on the basis of satisfactory evidence to be the pers<>nW whose names(H
~are subscribed to the within instrument and acknowledged to me that ~tftey executed
the same in ~Ilbeir authorized capacity(iesl. and that by ~Itheir Slgnature{ll1 on thc
instrument the person(.sf, or the entity upon behalf of which the personl;ofllcted, executed the
inslrwnent
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
~~
SIGNA TUIUt6F NOTARY PUBLIC
1- - - - - - - - - - - - - - - - - - -
. J. ACORD I
e-nllllon /I 1162.10
I NolaryPuOIk:-COIIfomIa,
Onong. County .
J MJQIm\===21.iIIltl I
------- ----
Ordinance No. NS-2769
Page 15 of 16
CONSENT OF LENDER
The undersigned (a, successor-In-interest to Fremont Investment & Loan, a
Calilornla industrial bank, "Beneficiary") holds the benelicial interest in that certain Deed of
Trust and pixture Filing recorded In Ihe Office of the County Recorder of Orange on June 20,
2006 as Instrument No. 2006000411437 (as amended, the "iStar need 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 thai the Amendment shall continue in full
force and effect, even in the event offoreelo,ure or tntstee's sale pursuant to the iStar Deed
of Trust, or any other acquisition of title by the undersigned, It' successors or assigns, of all
or any portion of the real property covered by the iStar Deed of Trust.
G jc, lo?
Dated:
::At?di~
Name: Ie 1<L!,itH,1N
Title: VIU "ps,AlNr
STA TE OF CALIFORNIA
SS,
COUNTY or $111;'1"
On JUIJ(.. f'~ before me, (here insert name and title of the officer),
person.ll~ appeared ~I r ...Liu..... who proved to me on tbe basis of satisfactory
evidence to be the personW whose name~ is/_ subscribed to the within instrument and
acknowledged to me that he!she.ltl1ey executed the same in hislherillleir authori.ed
capacity(~, and tbat by hislbe~'tl..i, ,ignature(&l on the instrument the person(.i.), or the
entity upon behalf of which the person(~acled, executed the instrument.
J certify under PENALTY OF PERJURY under the laws of the Stale of Califurnia
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(~
~-----~------~
~ DWAlN:: ZlE ZANDERS
""', Comml$:;ton *- '695394
i ~.., ,'. Notory P<il4;c . Colilomo ~
~ ~ . Orange County ~
. My Comm. Expires Oc13. 201
- - - - - - - - - - - -
(Seal)
Signature
Ordinance No. NS-2769
Page 16 of 16