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HomeMy WebLinkAbout11B - ORDINANCE - DEVELOPMENT PROJECT 200 E FIRST AMERICAN WAYRYAN OGULNICK FORMELY OWNDED BY VINEYARD DEVELOPMENT CORPORATION REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING ATE: TITLE: ORDINANCE SECOND READING: MODIFY DEVELOPMENT AGREEMENT NO. 2012 -01 TO ALLOW AN AMENDMENT AND ASSIGNMENT TO A NEW PROPERTY OWNER FOR THE DEVELOPMENT PROJECT LOCATED AT 200 EAST FIRST AMERICAN WAY - GENESIS REAL, ESTATE GROUP, APPLICANT RECOMMENDED ACTION Place ordinance on second reading and adopt. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ED'O-rdinance on 1" Reading ? -3 -/31 is 2- Ordinance on 2n° Reading q_ 3 IRS 1113 ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER On August 5, 2013, the City Council introduced first reading and authorized publication of title for the following Ordinance by a vote of 5 -0 (Amezcua abstained, Reyna absent): ORDINANCE NO. NS -2849 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A SECOND AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY FISCAL IMPACT There is no fiscal impact associated with this action. Maria D. Huizar, Clerk of the Council ATTACHMENT: Ordinance No. NS -2$49 11B-1 11 B -2 (ROH 08/05/13) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A SECOND AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana 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 Second Amended 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 July 8, 2013, recommended approval of this Second Amended Development Agreement. D. The purpose of this Second Amended Development Agreement is to revise the Amended Development Agreement, dated April 16, 2012, to allow for the assignment of the Development Agreement for the property located at 200 East First American Way, Santa Ana, including all of the rights, duties, obligations, and benefits contained therein, to the prospective new property owner. E. The project and the use that the owner proposes in connection with the property have been extensively reviewed and considered by the City, and such proposed development and use have been found to accommodate the City's recommendations and suggestions in order to protect the public's interest to enhance the desirability of such proposed development and use. The terms and conditions of this Second Amended Development Agreement have been found to be fair, just and reasonable, and the City has concluded that the pursuit of the Project will serve the interests of the City. Ordinance No. NS -XXX Page 1 of 3 11 B -3 F. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. G. Additionally, an addendum to the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46, have been approved and certified by this Council by resolution simultaneously with the introduction of this ordinance. H. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated August 5, 2013, together with all supporting documents, which are incorporated herein by this reference. Section 2. The Second Amended 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 non - substantive 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. 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 2013. Miguel A. Pulido Mayor Ordinance No. NS -XXX Page 2 of 3 11 B -4 APPROVED AS TO FORM: Sonia R. Carvalho City Attorney Ryan O. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, 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 11 B -5 Ordinance No. NS -XXX Page 3 of 3 RECORDING REQUESTED BY: Clerk of the City Council City of Santa Ana 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 SECOND AMENDED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA, a California municipal corporation, and VDC AT THE MET, LLC, a California limited liability company EXHIBIT 1 11 B -6 DEVELOPMENT AGREEMENT THIS SECOND AMENDED DEVELOPMENT AGREEMENT ("Second Amendment") is entered as of this day of , 2013, by and between THE CITY OF SANTA ANA ( "City "), a charter city and municipal corporation, and VDC AT THE MET, LLC ( "VDC "), a California limited liability company. The City and VDC are at times referred to individually as "Party" and collectively as "Parties" herein. RECITALS A. Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Laws ") authorize City to establish procedures to enter into, amend, and extend binding development agreements with persons having legal or equitable interests in real property located within the City for development of the property; B. The purpose of this Second Amendment is to assign and make certain minor changes to the previously- approved "Amended Development Agreement Between the City of Santa Ana and VDC At The Met, LLC, a California Limited Liability Company," dated April 16, 2012, and recorded in the Orange County Recorder's Office as Document No. (the "First Amended DA "); C. Pursuant to an order of Los Angeles Superior Court Judge James C. Chalfant in Case No. BC 484031, dated September 7, 2012, the subject property is currently controlled by David Wald, a receiver appointed by the Los Angeles Superior Court with full control and authority over VDC and the subject property. A true and correct copy of said order is attached hereto as Exhibit "A" and incorporated herein by this reference; D. Specifically, the Parties now desire to amend the First Amended DA, by way of this Second Amendment, to assign the First Amended DA, including all of the rights, duties, obligations, and benefits contained therein, from VDC to FIRST ROCK SANTA ANA, LLC ( "First Rock "), a California limited liability company, which is the development entity for GENESIS REAL ESTATE GROUP, INC. ( "Genesis "), a Texas corporation. The assignment is subject to the finalization of the sale of the subject property to First Rock, which was authorized by another order of Los Angeles Superior Court Judge James C. Chalfant in Case No. BC 484031, dated April 16, 2013. A true and correct copy of said order is attached hereto as Exhibit "B" and incorporated herein by this reference; E. In addition, the Parties desire to make minor changes to the First Amended DA, by way of this Second Amendment, including to (1) eliminate the two -year prohibition against assignments contained in Section 4.3 of the First Amended DA; (2) remove all references to the previous applicant, Vineyard Development ( "Vineyard "), and the previous developer, Ryan Ogulnick ( "Ogulnick "), from the First Amended DA; and (3) correct the number of total units to be built pursuant to the approved project; and, F. All other provisions of the First Amended DA, including all rights, duties, obligations, and benefits contained therein, shall remain fully intact and unchanged, and shall not be modified in any way by this Second Amendment. 2 11 B -7 AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. That subsection I.I(4) of the First Amended DA is hereby amended to read that the approved project will consist of 271 residential units. Section 2. That subsections 4.3 and 4.3.1 of the First Amended DA are hereby deleted in their entirety and are replaced with the following: "4.3 Assignment. Owner shall have the right to transfer or assign the Property, and its interests in and rights and obligations under this Agreement, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that except as provided in Section 4.3.1 of this Agreement, the rights of Owner under this Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. The rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. 3 11 B -8 4.3.1 Permitted Assignments. The prohibition against transfer of ownership of the Property as defined in section 4.3 above shall not apply to, and the City hereby consents to, the following: (a) Associations, including limited partnerships, limited liability companies, or joint ventures with other entities for the purpose of performing Owner's obligations under this Agreement, provided Owner retains sole operational and managerial control. (b) Easements or temporary permits to facilitate development of the Property. (c) Deeds of trust or other financing documents executed for the purpose of securing loans to Owner made to finance the development of the Property, and transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such deed of trust or other, similar, financing documents and any subsequent transfer by any such person or entity. Section 3. ASSIGNMENT. The City Council of the City of Santa Ana hereby approves the assignment of this Agreement from VDC, pursuant to the authority granted by Los Angeles Superior Court Judge James C. Chalfant to the receiver appointed with full control over VDC and the subject property, to First Rock, subject to the finalization of the sale of the subject property to First Rock. Section 4. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of the First Amended DA shall remain in full force and effect. The First Amended DA and this Second Amendment shall collectively be referred to as the "Agreement" throughout this document. The Agreement integrates all of the terms and conditions of agreement between the Parties, and supersedes all negotiations and previous agreements between the Parties with respect to the subject matter hereof. Section 5. EFFECTIVE DATE This Second Amendment shall take effect upon the completion of both the closing of escrow on the property subject to the Agreement by First Rock and the date the ordinance approving this Second Amendment takes effect. 4 11 B -9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Ryan O. Hodge Assistant City Attorney CITY OF SANTA ANA KEVIN O'ROURKE Interim City Manager VDC AT THE MET, LLC A California limited liability company DAVID WALD Receiver 11B-10