HomeMy WebLinkAboutNS-2786 - Approving an Amendment to Development Agreement Between City of Santa Ana Grand Plan 2, LLCORDINANCE NO. NS-2786
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 GRAND PLAN 2, 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 April
13, 2009, tied 3-3 on whether to recommend 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, and its Addendum have been approved and certified
by this Council by resolution simultaneously with the introduction of this ordinance.
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.
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
Council is hereby authorized and directed to cause this Development Agreement to be
recorded with the County Recorder's Office.
Ordinance NS-2786
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SECTION 3: This ordinance shall not be effective unless and until Resolution No.
2009-025 is adopted and become effective. If said resolution is 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 mare sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
ADOPTED this 1st day of June, 2009.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By: -1/
Benja[t in a~afma~
Chief Assistant City Attorney
AYES:
NOES:
ABSTAIN:
NOT PRESENT:
Councilmembers
Councilmembers
Councilmembers
Councilmembers
Alvarez. Benavides, Bustamante, Martinez,
Pulido, Sarmiento Tinaiero (71
None (0)
None (01
Ordinance NS-2786
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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-2786 to be the original ordinance adopted by the City Council
of the City of Santa Ana on June 1, 2009 and that said or finance was published in
accordance with the Charter of the City of Sar ta-A~a~
Date: ~~j
Clerk of the Coun
City of Santa Ana
Ordinance NS-2786
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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
THIRD AMENDMENT TO
DEVELOPMENT AGREEMENT
by and between
THE CITY OF SANTA ANA
and
THE GRAND PLAN 2, LLC
Dated: .2009
Ordinance No. NS-
EXHIBIT 1
Ordinance NS-2786
Page 4 of 10
THIRD AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SANTA ANA, and
THE GRAND PLAN 2, LLC
This THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Third 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").
1. Reference to Facts. This Third 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. GP2's current rights and obligations under the Development
Agreement include the Condo/Office Project and Retail Project Elements of the
Project, which are the subject of this Third Amendment.
1.3 A First Amendment to the Development Agreement by and
between the City, GP2, NDC Skyline Associates, LLC and Integral Communities I, Inc.
(the latter two being assignees of GP1 and GP2 as applicable) was executed on or
about July 7, 2008 and recorded in the Orange County Official Records on July 22,
2005 as Instrument No. 2008000349227. Simultaneous with its consideration of this
Third Amendment, the City Council of the City of Santa Ana is considering a proposed
Second Amendment to the Development Agreement, which is concerned solely with
consideration of separate requests for the City to approve rental use (as opposed to
for-sale condominiums) of the Lake Tower Element and Integral Project Element of
the Project.
1.4 The original Development Agreement and Entitlements (i)
described the Condo/Office Project Element of the Project as consisting of a six (6)
story tower consisting of fifteen (15) for-sale residential units on four (4) floors and
approximately ten thousand (10,000) square feet of office use on two (2) floors, and
(ii) described the Retail Project Element of the Project as consisting of approximately
thirteen thousand eight hundred seventy-one (13,871) square feet of commercial
space, including approximately eight thousand five hundred eighty (8,580) square feet
Ordinance NS-2786
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of restaurant and approximately five thousand two hundred ninety (5,290) square feet
of retail.
1.5 In lieu of the Condo/Office Project and Retail Project, which
Elements are no longer part of the Project, GP2 seeks approval of a Hotel Project.
For purposes of this Third Amendment, the "Hotel Project" shall consist of a new 185
room, 100,000 square foot, four-story (approximately 57.3 feet above grade) hotel to
be located on the corner of MacArthur Place and MacArthur Boulevard served by 133
surface parking spaces, and GP2's right to park in the parking structure located on
Orange County Assessor's Parcel No. 411-081-22 (also known as the Teacher's
parking structure) during certain specified hours of the week.
1.6 Approval of the Hotel Project will result in the need to relocate the
Cinema Tower, which is also owned and developed by GP2. The City and GP2 agree
and acknowledge that development of the Cinema Tower will require GP2 to submit a
new application to the City for site plan review for the proposed new location of the
Cinema Tower, which must be reviewed and approved by the City's Planning
Commission.
1.7 In connection with the foregoing, GP2 and the City now desire to
amend the Development Agreement to provide GP2 with approval of the Hotel Project
subject to the terms and conditions of the Development Agreement, as amended.
2. Hotel Proiect. GP2 and the City hereby acknowledge and agree that GP2
has the right under this Third Amendment to construct and operate the Hotel Project, as
hereinafter defined.
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 "office/commercial/retail uses"
appearing in Section 1.1(1) of the Development Agreement is hereby amended and
restated to read as "hotel uses with ancillary retail/restaurant uses."
3.2 Section 2.13. The entire section is deleted and replaced with the
word "Reserved."
3.3 Section 2.23. The entire section is deleted and replaced with the
word "Reserved."
3.4 Section 2.25A. Anew section is added between Section 2.25
and 2.26 to read as follows:
"'Hotel Project' is defined in Section 2.43."
3.5 Section 2.21. This section is hereby supplemented by adding the
following after the first sentence appearing therein: 'The Project also includes a new
185 room, approximately 100,097 square foot, four-story (approximately 57.3 feet above
Ordinance NS-2786
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grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard
served by 133 surface parking spaces, and GP2's parking rights in structure located on
Orange County Assessor's Parcel No. 411-081-22 (also known as the Teacher's
parking structure) during certain specified hours of the week, as set forth in detail in City
approvals for Development Permit No. 2008-8, Zoning Ordinance Amendment No.
2009-04, Conditional Use Permit No. 2009-08, Variance No. 2009-02, Environmental
Review No. 2008-235 (including the Addendum to the Final Environmental Impact
Report for Environmental Review No. 2004-02). Entitlements shall also include the City
approvals for the Hotel Project set forth in detail in City approvals for Development
Permit No. 2008-8, Zoning Ordinance Amendment No. 2009-04, Conditional Use Permit
No. 2009-08, Variance No. 2009-02, Environmental Review No. 2008-235 (including
the Addendum to the Final Environmental Impact Report for Environmental Review No.
2004-02).
3.6 Section 2.43(21. The section is deleted and replaced by the
following:
"A new 185 room, approximately 100,097 square foot, four-
story (approximately 57.3 feet above grade) hotel to be
located on the corner of MacArthur Place and MacArthur
Boulevard served by 133 surface parking spaces, and GP2's
parking rights in the structure located on Orange County
Assessor's Parcel No. 411-081-22 (also known as the
Teacher's parking structure) during certain specified hours of
the week (the `Hotel Project')."
3.7 Section 2.43(4). The entire section is deleted and replaced with the
word "Reserved."
3.8 Section 2.43 (generally). The final sentence appearing in this
section (i.e., the sentence beginning with the phrase "Each of the Lake Towers ... ") is
deleted and replaced with the following:
"The Lake Towers, the Cinema Tower, the Hotel
Project, and the Integral Project are each an 'Element."'
3.9 Section 2.52. The entire section is deleted and replaced with the
word "Reserved."
3.10 Section 2.55. The following is added to this section:
"The City and GP2 agree and acknowledge that the final
location of the relocated Cinema Tower has not been
determined. This is other issues related to its relocation
shall be resolved by submission of an application by GP2 for
Development Project Plan Approval pursuant to Division 3 of
Ordinance NS-2786
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Article V of Chapter 41 of the City's Municipal Code, which
shall be processed pursuant to said Division and Section 41-
593 et seq. of the City's Municipal Code."
3.11 Section 5.1.11. The phrase "Restaurant Portion" appearing in
Section 5.1.11 of the Development Agreement is hereby amended and restated to read
as "Hotel Project."
3.12 Exhibit B (Public Art Plan). The second to last sentence of
paragraph 2 of Exhibit B of the Development Agreement, as previously amended in the
First Amendment to the Development Agreement (beginning with the phrase "Owner
shall have committed..."), is deleted and replaced with the following:
"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, (iii) Integral
Project, and (iv) Hotel Project, but in no event exceeding an
aggregate of Five Hundred Thousand Dollars ($500,000)."
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 Third Amendment may be executed in any number of counterparts, all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Third Amendment has been executed by the City
of Santa Ana and The Grand Plan 2, LLC.
Dated this _ day of , 2009.
"CITY"
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
Ordinance NS-2786
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ATTEST:
PATRICIA E. HEALY
Clerk of the Council
Approved as to Form:
By
JOSEPH W.FLETCHER
City Attorney
STATE OF CALIFORNIA
COUNTY OF
"G P2"
THE GRAND PLAN 2, LLC, a California limited
liability company
By
Name
Its
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.
Ordinance NS-2786
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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
Ordinance NS-2786
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