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Home My WebLink AboutNS-2467 - Approving Amendment No 1 to Development Agreement 87-02 Between the City of Santa Ana and First American Financial CorporationORDINANCE NO. NS -2467 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AMENDMENT NO 1 TO DEVELOPMENT AGREEMENT 87-02 BETWEEN THE CITY OF SANTA ANA AND FIRST AMERICAN FINANCIAL CORPORATION THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: Section 1: The City Council hereby finds, determines and declares as follows: The City is authorized pursuant to Government Code Sections 65868 to 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. The City enters into this Amendment No. 1 to Development Agreement 87-02 pursuant to the provisions of the Government Code and applicable City policies. First American Financial Corporation's predecessor-in-interest and the City have previously entered into a Development Agreement 87-02 dated January 4, 1988, recorded on June 2, 1988 as Instrument No. 88-260709. This Amendment No. 1 to Development Agreement seeks to extend the duration of the Development Agreement for a portion of the property subject to the Development Agreement to March 3, 2028. The Planning Commission has, following a public hearing, recommended approval of this Development Agreement. Entering into Amendment No. 1 to Development Agreement 87-02 would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, and represent benefits which would not otherwise be required as part of the development process. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. Ordinance No. NS-2467 Page 1 of 3 Section 2: The City Council has, as a result of its consideration, and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, that this Final Environmental Impact Report No. 87-1("EIR") for the original Development Agreement adequately addresses this Ordinance and no further environmental review is needed. On the basis of this review, the City Council finds that no substantial changes are proposed by the Ordinance which will require major revisions of the previous EIR; no substantial changes will occur with respect to the circumstances under which the Ordinance is undertaken which will require major revisions to the previous EIR; and no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified, exists showing significant effects, or changes in mitigation measures. The City Council hereby directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Pursuant to Title XIV, California Code of Regulations ("CCR") § 735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and Title XlV, CCR § 735.5(a)(3), the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3: Amendment No. 1 to Development Agreement 87-02, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the Mayor 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 Development Agreement to be recorded with the County Recorder's Office. 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 u nconstitutional. ADOPTED this 4t_~._h day of June, 2001. Ordinance No. NS-2472 Page 2 of 3 Patricia E. Healy ''" / ./ Clerk of the Council ~' COUNCILMEMBERS: Pulido Aye McGuigan Aye AIvarez Aye Bist Aye Christy Aye Franklin Aye Solorio Aye APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney Christopher G. Norman Assistant City Attorney CERTIFICATE OF ORIGINALITY & PUBLICATION I, PATRICIA E. HEALY, Clerk of the Council, do hereby certify the attached Ordinance No. NS-2467 to be the original ordinance adopted by the City Council of the City of Santa Ana on June 4, 2001; and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: City of Santa Ana ~' Ordinance No. NS-2467 Page 3 of 3 Recording Requested By And When Recorded Retum To: City of Santa Ama Clerk of the Council 20 Civic Center Plaz~ St/h Fl. P.O. Box 1'998 Santa Ana, CA 92702 Attn: Clerk of the Council Recorded in Official Records, Gary Granville, Clerk.RecorderCOUnty of Oran9e IIIIIIltlIIIII ?IIIIIIIIIIIIIIIIIIIIItliiiiiitlNO FEE m 67 6 1042951912:15pm 06128101 o.oo o.oo o. oo o.oo o.oo o.oo o. oo o.oo [Space Above For Recorder's Use] · ' lExempt From Recording Fees per Gov. Code. 6103] AMENDMENT NO. 1 TO D~EVELOPMENT AGREEMENT THIS AMENDMENT NO. 1 TO DEV~ELOPMENT AGREEMENT ("Amendment No. 1") is made and entered into as of ~u ~,~ q ,2001, by and between the CITY OF. SANTA ANA, a charter city and municipal corporation organized and existing under the Conititution and laws of the State of California ("City"), and THE FIRST AMERICAN FINANCIAL CORPORATION, a California corporation, also known as The First American Corporation, a California corporation ("Owner"). ' ' ' ' RECITALS: / _ .. A. Owner is th~ owner of fee'title to that certain real .property legally described in Exhibit "A" attached hereto and incorp?rated herein (the "Property"). B. Owner's predecessor-in-interest to the Property and the City entered into that certain Development Agreement, dated for reference purposes only as January 4, 1988, and recorded on June 2, 1988 as Instrument No. 88-260709 in the official records of Orange County; California ("Development Agreement"). The real property subject to the Development Agreement includes the Property. C. On June ~i' 2000, the City and Owner entered into that certain unrecordec~ Amended and Restated Project Implementation Agreement, as the same may from time to tim~ be amended, that defines and describes the fights and obligations of Owner as a successor'm- interest to, and under, the Development Agreement. D. Government Code Section 65868 provides that a development agreement may be amended in part by mutual consent of the parties to the agreement or their successors-in-interest. Owner and fhe City desire to amend the D~;velopment Agreement with respect to the Property and enter into this Amendment No. 1 for that purpose. AMENDMENT: NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Applicability of Amendment No. 1. This Amendment No. I shall apply only to the Property legally described in Exhibit "A" attached hereto and shall not be effective as to any other real property whether or not such other real property is included in the real property legally described in Exhibit "A" to the Development Agreement. 2. Amendment to Development Agreement. a. Section 4(a) of the Development Agreement is amended by extending the term of the Development Agreement as set forth in Section 4(a) to March 3, 2028. b. Section 4(c) of the Development Agreement is hereby deleted. All references in the Development Agreement to the Disposition and Development Agreement (also referred to in the Development Agreement as the "D.D.A."), as defined in Recital B to the Development Agreement, are hereby deleted. c. The parties hereto acknowledge that Section 4(e) of the Development Agreement applies to the Property only to the extent that Owner or its successor fails to perform its obligations under the Development Agreement as such obligations are allocated' to Owner pursuant to the Amended and Restated Project Implementation Agreement. Section 5(d) of the Development Agreement is amended to read as - follows: (d) Fees, Charges. The fees, charges, and ' - exactions charged, from time to time, with respect to the real estate development projects on the Property, by the City or any agency, or district, board, commission, or entity of or controlled by the City, or any entity on which the members of the City Council sit as the governing board, or any joint powers authority in which the City is member or party, shall be only those fees, charges, and exactions in effect on April 9, 1998; provided, however, that the foregoing limitation on development fees, charges, and exactions shall not include building, planning, or engineering fees or like lees imposed to recover costs, including but not limited to costs associated with processing and review of applications, plans, specifications, etc. 3. Obiectives of Owner; Obiectives of City; Conformity With General Plan; City Procedures; Recordation. Owner, in the absence of this Agreement, would face certain development risks and uncertainties which would deter and discourage Owner from further development of the Property. Among the risks alleviated by this Amendment No. 1 are the uncertainties of long-term planning of an economically viable project or projects on the undeveloped portion of the Property. City, in accordance with the legislative findings set forth in Government Code Section 65864, similarly wishes to attain important public objectives by and through this Amendment No. 1, principally that with this Amendment No. 1 there is greater certainty of development of the undeveloped portions of the Property which will inure to the benefit of the City and its citizens through realization of increased tax revenues resulting from the further development of the Property. Pursuant to the authorization set forth in Government Code Section 64868 and the City's procedures for adopting and amending development agreements set forth in City Council Resolution 82-92, City has undertaken the necessary proceedings, has found and determined that this Amendment No. 1 is consistent with tt/e City's General Plan and with the applicable specific plan, Specific Development Plan No. 43. On March 26, 2001, the City Planning Commission, atier giving notice required by law, held a public hearing on this Amendment No. 1 and recommended that the City Council adopt an ordinance approving and adopting this Amendment No. 1. On April 16, 2001, the City Council of City, after giving notice required by law, held a public hearing on this Amendment No. 1 and on May 21, 2001 approved for first reading Ordinance No. NS-2467 approving and adopting this Amendment No. 1. On June 4, 2001, the City Council of City approved for second reading and addl~ed Ordinance No. NS-2467 approving and adopting this Amendment No. 1. Concurrent with its approval of first reading of Ordinance No. NS-2467, the City Council of City found and determined that Amendment No. 1 was statutorily exempt from the California Environmental Quality Act pursuant to Public Resources Code Section 21083.3. This Amendment shall be recorded in the official records of Orange County. I 4. No Other Amendment. Except for the amendments to the Development Agreement set forth in this Amendment No. I, the Development Agreement shall remain in full force and effect. [end - signature page follows] 394/01655541002 -3- 148875,02 a02/22/01 IN WITNESS WHEREOF, the parties hereto have entered into this Amendment No. 1 as of the date first above written. THE FIRST AMERICAN FINANCIAL CORPORATION, a California corporation, also known as The First American Corporafu~, ~ California corporation ~' Parl~er'g. ~&~edy u President Mark R Amesen Secretary ~ Clerk of the Council APPROVED: Joseph w. Fletcher City Attomey CITY OF SANTA ANA, a charter city and m~iPal corporation ~ Miguel A2 Vulido ~ \ ~ Mayor ... APPROVED AS TO CONTENT: David N. Ream City Manager 394/016555-00~2 148875.02 a02/22/01 4 STATE OF CALIFORNIA COUNTY OF ORANGE ) ) ss ) On April 2 ,2001, before me, Shelley Dyvig, Notary Public personally appeared PARKER S. KENNEDY, personally known to me (or 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 Ms/her/their authorized capacity(ies), and that by Ms/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official 'seal. [s~AL] Notary Publi L)' - 394/016555-0002 148875.02 n02/22/01 STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On April 2 ,2001, before me, Shelley Dyvig, Notary Public personally appeared MARK R ARNESEN, personally known to me (or 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(les), and that by his/her/their signature(s) on the instrument the person(s) or the ehtity upon behalf of which the person(s) acted, executed the instrument. Wimess my hand and official seal. Notary Public~/ ' ~/ L/ 394/0165554)002 148875.02a02/22/01 -6- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ;State of California '~ County of 0/(/f'/~'~- ~ ~ ss. personally appeared ~'~1C/,4 ~ ,~/£ ~u.l~...4.~, .~k.f..~,~'OA ~'~0 ?-~'~e,I , ' Name(s) of S~'ner($} ~'personally known to me [] 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{les), 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. WITNESS my hand and official seal. PJace Notary SealAbove - ~ Signature of Nota~ Publi~ OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could p~vent fraudulent removal and reaEachment of this form to another document. Description of Attached Document Titre or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Nam_ed Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual [] Corporate Officer-- Title(s): [] Partner-- [] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: Top of thumb here EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY ALL OF PARCEL MAP NO. 98-232 AS SHOWN ON A MAP FILED IN BOOK 313 PAGES 12 TO 17, INCLUSIVE OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. 394/016555-0002 148875.02 a02/22/01 8