HomeMy WebLinkAbout75C - PUBLIC HEARING - AMEND DEVELOPMENT AGMT MACARTHUR PLACEREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JUNE 2, 2008
TITLE:
PUBLIC HEARING - AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2005-02 FOR
THE MACARTHUR PLACE SOUTH PROJECT AT
9, 10 AND 15 HUTTON CENTRE DRIVE AND
100, 120 AND 130 EAST MACARTHUR
BOULEVARD - NEXUS COMPANIES, APPLICANT
(~' '
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 15f Reading
^ Ordinance on 2nd Reading
^ Implementing Resolution
^ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Adopt an ordinance approving the amendment to Development Agreement No.
2005-02.
PLANNING COMMISSION ACTION
On May 12, 2008, the Planning Commission recommended that the City Council
adopt an ordinance approving the amendment to Development Agreement No.
2005-02 by a vote of 4:0 (Betancourt, De La Torre, Munoz absent) to amend
provisions of the MacArthur Place South project that pertain to public art
for the development at 9, 10 and 15 East Hutton Centre Drive and 100, 120
and 130 East MacArthur Boulevard in the Specific Development No. 76 (SD-
76) zoning district. The Planning Commission made no changes to the
terms of the agreement as outlined in the attached staff report (Exhibit
A) .
FISCAL IMPACT
There is no fiscal impact associated with this action.
a M. Trevino
Executive Director
Planning and Building Agency
VF:rb
of/reports/Nexus/Amend DA05-02.cc
75C-1
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
MAY 12, 2008
TITLE:
PUBLIC HEARING - FILED BY THE NEXUS
COMPANIES TO AMEND DEVELOPMENT AGREEMENT
NO. 2005-02 FOR THE MACARTHUR PLACE SOUTH
PROJECT AT 9, 10 AND 15 HUTTON CENTRE DRIVE
AND 100, 120 AND 130 EAST MACARTHUR
BOULEVARD
Prepared by Vince Fregoso
PLANNING COMMISSION SECRETARY
APPROVED
^ As Recommended
^ As Amended
^ Set Public Hearing For
DENIED
^ Applicant's Request
^ Staff Recommendation
CONTINUED TO
,~
Executive Director Planning Hager
RECOMMENDED ACTION
Recommend that the City Council adopt an ordinance approving the
Amendment to Development Agreement No. 2005-02.
DISCUSSION
Request of Applicant
The Nexus Companies is
Place South development
development at 9, 10 and
East MacArthur Boulevard.
Property Description
proposing to amend provisions of the MacArthur
agreement that pertain to public art for the
15 East Hutton Centre Drive and 100, 120 and 130
MacArthur Place South is a 9.8-acre development that is generally
situated between MacArthur Boulevard, Main Street and Sandpointe Avenue.
MacArthur Place South consists of three separate parcels and will
include three 25-story high-rise towers, a six-story mid-rise
residential/office building, a six-story mid-rise condominium
development, and 14,000 square feet of retail and restaurant uses. Two
high-rise towers, the 349-unit Skyline Towers at 9 and 15 Hutton Centre
Drive, are currently under construction. At final build out, a total of
791 for sale condominium units will be constructed at the project.
The overall project site is zoned Specific Development No. 76 (SD-76)
and has a General Plan land use designation of District Center (DC).
Surrounding land uses include the MacArthur Place mixed-use development
to the north, the Newport-Costa Mesa (SR-55) Freeway and the City of
Costa Mesa to the east, office development to the south and the
Sandpointe residential neighborhood to the west (Exhibits 1 and 2).
EXH~~-_2
Amendment to DA No. 05-02
May 12, 2008
Page 2
Project Description
The Nexus Development Corporation is proposing to amend Section 5.1.7
(Development, Construction and Completion of Public Art) and Exhibit B
(Public Art Plan) of Development Agreement No. 2005-02 (Exhibit 3).
Specifically, Nexus is proposing to modify the provisions which specify
the location of the public art as well as to adjust the timing of
contributions towards the installation of public art for the MacArthur
Place South development.
Analysis of the Issues
In 2005, the City entered into a development agreement with The Grand
Plan I and II, LLC, subsidiaries of the Nexus Companies, for the
MacArthur Place South development. The development agreement
established development intensity, permitted uses and development
standards for the term of the agreement. Further, the approved
development agreement required certain improvements and public benefits
such as in lieu fees for parkland dedication, payment of an inclusionary
housing fee, and the execution of an off-site improvement agreement with
the Sandpointe Neighborhood Association. Also included in the
development agreement was a $500,000 contribution for the installation
of a single or grouped permanent work of public art to enrich both the
project and surrounding community. At the final City Council hearing
for the project, the Council modified the agreement to require two
signs/art installations in the medians of MacArthur Boulevard and Main
Street. These signs were envisioned to replace the dated City entry
monuments and provide a more progressive gateway marker into the City.
After extensive work by Nexus, including detailed design analysis, Nexus
determined that the cost of these entry signs would exceed the total art
budget . Due to this cost, and the desire by the developer to meet the
intent of the public art policy, Nexus is proposing to return to the
provision in the original draft development agreement and replace the
requirement to install signs in the MacArthur Boulevard and Main Street
medians with an art installation located on the project site but
accessible and visible to the public. Nexus remains committed to fund
public art in the originally approved amount of $500,000.
Nexus is also requesting to modify the Public Art Plan and allow the
public art contributions to be phased. Under the current terms of the
agreement, the entire art contribution would need to be satisfied upon
75C-3
Amendment to
May 12, 2008
Page 3
DA No. 05-02
issuance of the first certificate
is proposing to modify the timing
the various development phases
Condo/Office project, Integral
recommends approval of Nexus' r
development agreement.
CEQA Compliance
of occupancy for the project. Nexus
of these contributions to be tied to
(Lake Towers, Cinema Towers and
and retail) (Exhibit 4). Staff
'quest to modify the terms of the
In accordance with the California Environmental Quality Act, the proposed
project has been determined to be adequately evaluated in previously
prepared Environmental Impact Report No. 2004-02.
~~
Vince Fre oso, ICP
Principal nner
VF:jm
of/reports/Nexus/Amend DA05-02 .pc
75C-4
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AMENDMENT TO DA 05-2
NEXUS DEVELOPMENT CORPORATION m
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P L A N N I N G A N D B U I L D I N G A G E N C Y
LAND USE MAP
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5.1.3 Phasing. The Owner acknowledges and agrees that the
Commencement of Construction of the Integral Project cannot commence until the Commencement
of Construction has occurred on either of the Lake Towers or the Cinema Tower.
5.1.4 FAA Approval. Owner shall obtain and maintain, during the tenor of
this Agreement, any and all necessary approvals from the FAA for the Project. Should such
approvals lapse, and not be reinstated or reapproved prior to the issuance of a building permit for
either of the Lake Towers and/or Cinema Tower, the City shall have the right to delay the issuance of
building permits for either of the Lake Towers and/or Cinema Tower until such approvals are
reinstated or reapproved.
5.1.5 Avigation Easement. The Owner shall, prior to issuance of the first
building permit for the Project, execute the Avigation Easement in favor of the City. Owner and City
may make non-substantive alterations in the Avigation Easement prior to its execution, to the extent
such changes are approved by Owner and City (as to content by the City Manager, and as to form by
the City Attorney).
5.1.6 Limit on Fast Food and Take Out Restaurants. At no time during
the Term shall the Project include retail space which is devoted to "fast food" and "take out"
restaurants. For purposes of this Agreement, a restaurant shall not be deemed to be a "fast food" or
"take out" restaurant if it provides sit-down dining areas and primary table service for ordering and
delivering meals and beverages, and take out service ancillary to such services.
5.1.7 Development, Construction and Completion of Public Art. Owner
shall include within the Project, (i) two (2) gateway entry signs ("Signs"), and (ii) a single or grouped
permanent work(s) of public art ("Work(s) of Public Art") consistent with the Public Art Plan
(collectively refPrrP.d to herein as the "Public Art") at a cost not to exceed Five Hundred Thousand
Dollars ($500,000) ("Public Art Fee").
5.1.8 Inclusionary Housing Fee. Owner shall pay to the City the sum of
Three Thousand Dollars ($3,000) for each Residential Unit contained in each Element ("Inclusionary
Housing Fee"). The Inclusionary Housing Fee shall be paid with respect to each Element containing
Residential Units at such time as 75% of the Residential Units within such Element have received
Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including but
not limited to preparation of one or more elements of its general plan or for zoning amendments),
conceptual design, final design, bid preparation, award of bid, property appraisal, property
acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated
existing affordable housing in the City.
5.1.9 In-Lieu Park Development Fee. The Owner shall pay an in-lieu
park development fee in the amount of Two Million Six Hundred Thousand Dollars ($2,600,000)
with respect to the Residential Units within the Project ("In-Lieu Park Development Fee") payable
for each Element in which Residential Units are located at such time as 75% of the Residential Units
within such Element have received Utility Releases, based on a fraction the numerator of which is the
total number of Residential Units in an Element and the denominator of which is the total number of
Residential Units in the Project.
~ The City shall use not more than twenty five percent (25%) of the In-lieu Park
Development Fee for the acquisition of the land for parks and the construction of capital
I
' 11
i DOCSOC/1110339vr 1/24579-0001 AMENDMENT
TO DA 05-02
EXHIBIT 3
~~i+ ~
EXHIBTT B
PUBLIC ART PLAN
The Work(s) of Public Art shall be designed, constructed and installed by the Owner;
provided however, that the Signs shall be designed by the City at its sole expense.
2. A Final Design Plan consistent herewith, which proposes specific Work(s) of Public Art for
specific locations and/or applications, shall be submitted to the City's Planning Commission
within thirty sixty five (365) days from the issuance of the first building permit for the
Project. Owner shall install the Public Art not later than the issuance by the City of the first
certificate of occupancy for any Element.
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.
The Work(s) of 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
Work(s) of Art to one or more Owners' Association(s). The City shall be solely responsible
for maintaining the Signs.
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.
Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees incurred in connection with the Public
Works} of Art.
iii. 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.
B-1
DOCSOC/ 1110339v 1 l /24579-0001
v. Lighting elements not integral to the illumination of the Public Work(s) of Art.
vi. Publicity, public relations, photographs, educational materials, business letterhead or
logos bearing artwork image.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
11. All molds, dies, or other patterns used in .constructing the t~e-{~ gate~y.-ei-signs,
together with all plans, shall be property of the City.
B-2
DOC SOC/ 1110339v 1 1 /24 5 7 9-000 1
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
AMENDMENT
DOCSOC/1275524v9/024579-0001 TO DA 05-02
~~I~~
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
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 ("GP 1 ") 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 defined 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 assigned its rights and obligations under the Development Agreement with respect to
Lake Towers to Skyline and GP 1 assigned its rights and obligations under the Development
Agreement with respect to Integral to Integral Communities I. 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/1275524v9/024579-0001 7 5 ~ -11
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.
JOSEPH W.FLETCHER
City Attorney
[Signatures continue on following page]
2
DOCSOC/1275524v9/024579-0001 ~ ~ ~ _
THE GRAND PLAN 2, LLC, a California limited
liability company
By
Name
Its
NDC SKYLINE ASSOCIATES, LLC
a Delaware limited liability company
By -
Name
Its
INTEGRAL COMMUNITIES I, INC., a Delaware
corporation
By _
Name
Its
DOCSOC/ 1275524v9/024579-0001
75C-13
EXHIBIT B
PUBLIC ART PLAN
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 . 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).
9. All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
B-1
DOCSOC/ 1275524v9/024579-0001
75C-14
10. Expenses not included in the Public Art Fee.
i. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
iii. 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.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
B-2
DOCSOC/ 1275524v9/024579-0001 7 5 ~ -15
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
75C-16
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. Anotice 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
75C-17
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 any one 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:
NOES:
Councilmembers
Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Ordinance No. NS-
Page 3
75C-18
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
75C-19
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
DOC SOC/ 12 75 524v 9/0245 79-0001
75C-20
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
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").
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 defined 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. GPI 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 Integral to Integral Communities I. 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.
DOC SOC/ 1275524v9/024579-0001
75C-21
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
JOSEPH W.FLETCHER
City Attorney
[Signatures continue on following page]
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THE GRAND PLAN 2, LLC, a California limited
liability company
3
DOCSOC/ 1275524v9/024579-0001
By -
Name
Its
NDC SKYLINE ASSOCIATES, LLC
a Delaware limited liability company
By -
Name
Its
INTEGRAL COMMUNITIES I, INC., a Delaware
corporation
By -
Name
Its
75C-23
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 . 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.
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).
All Public Art shall remain on the Property and may not be removed without the approval of
the Planning Commission.
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10. Expenses not included in the Public Art Fee.
i. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.)
ii. Architect and Landscape Architect fees incurred in connection with the Public
Work(s) of Art.
iii. 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.
vii. Dedication ceremonies, including sculpture unveilings or grand openings.
B-2
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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
DOC SOC/ 1275524v9/024579-0001
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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
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