HomeMy WebLinkAboutNS-2783 - Approving an Amendment to Development Agreement Between the City of Santa Ana NDC Skyline Associates, LLCORDINANCE NO. NS-2783
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 NDC SKYLINE ASSOCIATES, LLC
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.
B. 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, recommended approval of this Amendment to Development
Agreement.
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 the
owner of MacArthur Place South 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-2783
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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-
2782 and Resolution No. 2009-022 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 May , 2009.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
B jam' Kauf
C ief A sistant Ci y Attorney
AYES: Councilmembers Alvarez, Benavides, Bustamante, Martinez,
Pulido Sarmiento, Tinaiero (7)
NOES: Councilmembers None (0)
ABSTAIN: Councilmembers None (0)
NOT PRESENT: Councilmembers None (0)
Ordinance NS-2783
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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-2783 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.
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Date: ~ ~ , - ~ - ~°~ ~ ; - ~' ~ X. -~ ~~ -L-~..~ fi't`-; =-- ~ _-
Clerk of the Council j '~
City of Santa Ana
Ordinance NS-2783
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Ordinance NS-2783
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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-2783
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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").
1. 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).
Ordinance NS-2783
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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 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:
Ordinance NS-2783
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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-2783
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IN WITNESS WHEREOF, this Second Amendment has been executed by the City of
Santa Ana, Skyline and Integral.
Dated this _ day of , 2009.
By
Approved as to Form:
By
JOSEPH W.FLETCHER
City Attorney
"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
"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-2783
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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 )
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
Ordinance NS-2783
Page 10 of 11
STATE OF CALIFORNIA
COUNTY OF
On
before me,
ss.
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
Ordinance NS-2783
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