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HomeMy WebLinkAboutNS-2782 - Approving an Amendment to the Development Agreement Between City of Santa Ana and Integral CommunitiesORDINANCE NO. NS- 2782 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 AND INTEGRAL COMMUNITIES I, INC. 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 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. 6. The City enters into this Amendment to Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on March 23, 2009, by a 4-3 vote recommended against approval of this amendment to the Development Agreement as to Integral Communities I, Inc ("Integral"). D. Entering into this Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require Integral 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. E. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report (EIR) for the Nexus Project, No. ER 2004-02, adequately describes and analyzes the impacts of this proposed ordinance, and no additional review under the California Environmental Quality Act is required. The new activity (the option of rental of residential units) does not affect the scope of the original project, nor create new impacts. The City has performed a traffic analysis of the difference between for- rent and for-sale units in the project, and this analysis has been included in the Addendum for said Final EIR for consideration of Item 75.B. for tonight's public meeting, and is incorporated herein by this reference. G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated May 4, 2009, together with all supporting documents, including but not limited to proposed resolutions, which are incorporated herein by this reference. Ordinance NS-2782 Page 1 of 10 SECTION 2: The 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 with such nonsubstantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. In case of any dispute between the terms or effect of Tentative Tract Map No. 2008-04 and the terms or effect of the Development Agreement, the Development Agreement shall prevail. SECTION 3: This ordinance shall not be effective unless and until Ordinance No. NS- 2783 and Resolution No. 2009-021 are adopted and become effective. If said ordinance and resolution 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 4: 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. ADOPTED this 18th day of Mav APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: B nja in Ka f an C ief ssistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: . 2009. Councilmembers Alvarez, Benavides, Bustamante, Martinez, Pulido. Tinaiero (6) Councilmembers None (0) Councilmembers Sarmiento (1 Councilmembers None (0) Ordinance NS-2782 Page 2 of 10 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-2782 to be the original ordinance adopted by the City Council of the City of Santa Ana on May 18, 2009, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. i _ ~` i ~ "' Date: ~ ~ , ~ _ _ ~ ~~ Clerk of the Council City of Santa Ana Ordinance NS-2782 Page 3 of 10 This page intentionally left blank. Ordinance NS-2782 Page 4 of 10 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 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and NDC SKYLINE ASSOCIATES, LLC and INTEGRAL COMMUNITIES I, INC. Dated: May 18, 2009 Ordinance No. NS- EXHIBIT 1 Ordinance NS-2782 Page 5 of 10 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, NDC SKYLINE ASSOCIATES, LLC, and INTEGRAL COMMUNITIES I, INC. This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Second 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"), NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company ("Skyline"), and INTEGRAL COMMUNITIES I, INC., a Delaware corporation ("Integral"). Reference to Facts. This Second Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and The Grand Plan 2, LLC, a California limited liability company ("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 (as amended, the "Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office/commercial/retail uses, as more particularly described therein. GP1 and GP2 subsequently assigned 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 the Integral Project to Integral Communities I, Inc., a Delaware corporation. 1.3 As set forth above, Integral is the current owner of the Integral Project, having been assigned the Integral Project pursuant to the terms and provisions of the Development Agreement. 1.4 The original Development Agreement and Entitlements (i) described the Lake Towers Element of the Project would consist of two (2) towers with "for-sale" condominium units, and (ii) described the Integral Project would consist of "a five (5) or six (6) story building containing two hundred seventy-six (276) for-sale residential condominium units." 1.5 Lake Towers is nearing completion and, concurrently herewith, the City has approved certain modifications to existing Entitlements (including, Conditional Use Permit No. 2005-10) to permit Skyline to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers (irrespective of whether any Residential Units are sold to third party purchasers). 1.6 The Integral Project is still in the planning stage and, concurrently herewith, the City has approved certain modifications to existing Entitlements (including, Conditional Use Permit No. 2005-15) to permit Integral to rent (and offer for rental) some or all of the Residential Units comprising the Integral Project (irrespective of whether any Residential Units are sold to third party purchasers). 1.7 In connection with the foregoing, Skyline, Integral and City now desire to amend the Development Agreement to provide Skyline and Integral with the ability to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers and Integral Project, respectively, in accordance with applicable Entitlements. 2. Right to Rent. Skyline, Integral and the City hereby acknowledge and agree that Skyline and Integral have the right to rent (and offer for rental) some or all of the Residential Units comprising Ordinance NS-2782 Page 6 of 10 Lake Towers and/or the Integral Project, respectively, in accordance with applicable Entitlements. The foregoing shall in no way be deemed to impose an obligation on Skyline or Integral to rent (or offer for rental) any or all of the Residential Units, or preclude Skyline or Integral from selling and renting (and offering for sale and rental) the Residential Units concurrently. 3. Modification of Certain Provisions. The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 1.1(1). The phrase "for-sale residential condominiums" appearing in Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "for-sale condominium units or for-rent residential units." 3.2 Section 2.43(1). The phrase "three hundred fifty (350) for sale residential condominium units" appearing in Section 2.43(1) of the Development Agreement is hereby amended and restated to read as "three hundred forty-nine (349) for-sale condominium units or for-rent residential units." 3.3 Section 2.43(3). The phrase "two hundred seventy-six (276) for-sale residential condominium units" appearing in Section 2.43(3) of the Development Agreement is hereby amended and restated to read as "two hundred seventy-six (276) for-sale residential condominium units or for-rent residential units." 3.4 Section 2.50. The phrase "each of the for sale residential units" appearing in Section 2.50 of the Development Agreement is hereby amended and restated to read as "each of the for- sale (and with respect to Lake Towers and Integral Project, if applicable, the for-rent) residential units." 3.5 Section 4.1. Clause (ii) appearing in Section 4.1 of the Development Agreement is hereby amended and restated to read in its entirety as follows: "(ii) the granting of Certificates of Occupancy (or similar permission to occupy) for the final Element of the Project and, except with respect to Lake Towers and/or Integral Project, sale of all Residential Units." 3.6 Section 4.2.1. Anew Section 4.2.1 is added to the Development Agreement to read in its entirety: 4.2.1. Residential Rental Manager. Should Skyline and/or Integral exercise its option to rent the Lake Towers or Integral Project, respectively, prior to occupancy of the first rental unit, Skyline or Integral shall first obtain the written consent of the City, acting through its Executive Director of Planning and Building Agency or designee (the "Director"), to Skyline's and/or Integral's proposed residential rental manager. In exercising his or her reasonable discretion, the Director shall limit his or her review to the experience and capabilities of the proposed residential rental manager and shall approve any such proposed rental manager if the manager has demonstrated experience or capabilities with respect to the managing rental properties on the scale of the Lake Towers and/or Integral, respectively. 3.7 Section 4.3. Clause (f) appearing in Section 4.3 of the Development Agreement is hereby amended and restated to read in its entirety as follows: "Buyer's of Residential Units (and with respect to the Lake Towers Element and/or the Integral Project, if applicable, buyer's or tenant's of Residential Units). 4. Full Force and Effect; Counterparts. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. This Second Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. [Signature and Notary Pages Follow] Ordinance NS-2782 Page 7 of 10 IN WITNESS WHEREOF, this Second Amendment has been executed by the City of Santa Ana, Skyline and Integral. Dated this _ day of , 2009. By "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California DAVID N. REAM City Manager Approved as to Form: By JOSEPH W.FLETCHER City Attorney "SKYLINE" NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company By Name Its "Integral" INTEGRAL Communities I, INC., a Delaware corporation By _ Name Its Ordinance NS-2782 Page8of10 STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, Notary Public, personally appeared ,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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF ss. On before me, Notary Public, personally appeared ,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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF ss. On before me, Notary Public, personally appeared ,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 Ordinance NS-2782 Page9of10 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 SIGNATURE OF NOTARY PUBLIC Ordinance NS-2782 Page 10 of 10