ORD 09-10 Cancellation Development Agreement Orange City Mills Block at OrangeORDINANCE N0.9-
10 AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE APPROVING
CANCELLATION OF A DEVELOPMENT AGREEMENT BY
AND BETWEEN THE CITY OF ORANGE AND
ORANGE CITY MILLS LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
RELATING TO THE BLOCK AT
ORANGE.WHEREAS, Section 65864 et seq. of the California Government Code
authorizes cities to enter into Development Agreements with any person having a legal or
equitable interest in real property for the development of such property;
and WHEREAS, the City Council of the City of Orange has adopted Chapter 17.44 of
the Orange Municipal Code, which establishes procedures for the processing and approval
of Development Agreements, including the amendment and cancellation thereof;
and WHEREAS, Orange City Mills Limited Partnership, a Delaware limited
partnership herein referred to as "OCMLP"), Orange City Mills II Limited Partnership, a
Delaware limited partnership (herein referred to as "OCMIILP"), and Orange City Mills III
Limited Partnership, a Delaware limited partnership (herein referred to, individually, as "
OCMIIILP"and, collectively, with OCMLP and OCMIILP as the "Owner") are the owners of
an approximately 74.53-acre site in the City of Orange developed as "The Block
at Orange",containing commercial and retail development, restaurants, a 30-screen movie
theater, and a skate park (herein referred to as the "
Retail Center"); and WHEREAS, by the adoption of Ordinance No. 04-04 on February
24, 2004, the City Council of the City of Orange (herein referred to as the "City
Council") approved that certain Development Agreement by and between the City of Orange (herein
referred to as the City") and OCMLP relating to the expansion of the Retail Center with
120,000 square feet of retail uses, two new hotels, three new parking structures and
500 apartment units (herein referred to collectively as the "Expansion Uses"), which are
more particularly described in the Development Agreement, the original of which was recorded in
the Official Records of the County of Orange, State of California on July 6, 2004
as Instrument No. 2004000610769 herein referred to as
the "Development Agreement"); and WHEREAS, on December 13, 2005, the City Council
approved modifications to the entitlements for the Expansion Uses, including modifications of
Conditional Use Permit No.2461-03 and Major Site Plan Review No. 300-03 that
would allow, among other things, the construction of a parking structure consisting of not more
than 1,722 parking spaces, 403 condominium units and related parking to be constructed in
lieu of 500 apartment units, the reorientation of one of the proposed hotels, and the
reconfiguration of an entryway road from Metropolitan Drive (herein referred to
WHEREAS, by the adoption of Ordinance No. 17-05 on January 24, 2006, the
City Council of the City of Orange approved that certain Amended and Restated
Development Agreement by and between the City of Orange and OCMLP, which was intended to vest
the Modified Expansion Uses, replace the Development Agreement, and reflect the agreement
of the City and OCMLP to the amendment and restatement of the Development Agreement;
and WHEREAS, due to market factors and various circumstances including
the withdrawal of the condominium project developer, a change in the ownership and control
of OCMLP, and a change in the ownership of the property adjoining the Retail Center
affected by the approved Modified Expansion Uses, OCMLP determined that it could not
proceed with the Modified Expansion Uses and, therefore, did not execute and deliver to the City
the Amended and Restated Development Agreement and other related documents that had
been approved by the City Council and the Orange Redevelopment Agency in
connection therewith on December 13, 2005;
and WHEREAS, in light of the fact that OCMLP did not execute and deliver to the
City the Amended and Restated Development Agreement, OCMLP and the City entered into
that certain Operating Memorandum to Development Agreement, dated December 12,
2007 herein referred to as the "Operating Memorandum") for the purpose of determining that: (
i)the modifications of Conditional Use Permit No. 2461-03 and Major Site Plan
Review No.300-03 were not viable and, therefore, not applicable to the Retail Center, (
ii) the original Development Agreement and the entitlements that were approved by the
City Council in connection therewith in 2004 constituted the development
standards and restrictions governing the use and development of the Retail Center in accordance with the
terms of the Development Agreement, and (iii) the original Development Agreement
gave OCMLP and its successors and assigns the vested right to develop the Expansion Uses
in accordance with the terms of the
Development Agreement; and WHEREAS, the Owner has made application to the City for a
Major City Plan Review to construct approximately 105,000 square feet of new retail/restaurant
uses and a Conditional Use Permit to allow valet parking at the Retail Center. As part
of its application,the Owner has requested the cancellation of the Development Agreement
and the revocation of the entitlements related to the
Expansion Uses; and WHEREAS, Section 65868 of the California Government
Code andSection 17.44.160 of the Orange Municipal Code permit the cancellation
of a Development Agreement by mutual consent of the parties to the agreement. The
procedure for proposing and approving the cancellation of a Development Agreement is the same as
the procedure for entering into a Development Agreement; namely that a noticed public hearing
must be held by both the Planning Commission and the City Council and such
cancellation, if approved,must be approved
by ordinance; and WHEREAS, in accordance with State and local law, on April 19,
2010, the Planning Commission conducted a duly noticed public hearing on the proposed
cancellation of the Development Agreement and reviewed and considered the information
presented by City staff and public testimony regarding the proposed cancellation
of the Development Agreement, and, by a vote of not less than a majority of its
total membership, recommended City Council approval of cancellation of the
Development
WHEREAS, in accordance with State and local law, on June 8, 2010, the City
Council conducted a duly noticed public hearing on the proposed cancellation of the
Development Agreement and considered the information presented by City staff and public
testimony regarding same and, based upon the request of the Owner, finds and determines
that the Development Agreement should be cancelled.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE
DOES ORDAIN AS FOLLOWS:
SECTION I:
The City Council finds that a public hearing has been held before this City Council
pursuant to the procedures described in Section 65868 of the California Government Code
and Chapter 17.44 of the Orange Municipal Code. At the hearing, the City Council
considered testimony presented by the public and the Planning Commission's
recommendation to approve the cancellation of that certain Development Agreement that was
adopted by Ordinance No. 04-04 of the City of Orange on February 24, 2004,
which Development Agreement was recorded in the Official Records of the County of
Orange,State of California on July 6, 2004 as Instrument No.
2004000610769.SECTION
II:The City Council approves cancellation of said Development
Agreement.SECTION
III:The City Council authorizes and directs the City Manager to execute on behalf of
the City and thereafter record, or cause to be recorded, in the Official Records of the County
of Orange, State of California, a "Notice of Cancellation and Release of
Development Agreement" or such other similar document, which, in consultation with the City
Attorney,he may deem necessary or advisable in order to reflect the agreement of the City and
the Owner to cancel the Development Agreement. Said document shall be recorded
following the effective date of this
Ordinance.SECTION
IV:A summary of this Ordinance shall be published and a certified copy of the full
text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior
to the City Council meeting at which this Ordinance is adopted. A summary of this
Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in
a newspaper of general circulation, published, and circulated in the City of Orange. The
City Clerk shall post in the Office of the City Clerk a certified copy of the full text of
such adopted Ordinance along with the names of those City Council members voting for
and against the Ordinance in accordance with Government Code Section 36933. This
Ordinance shall take effect thirty (30) days from and after the date of its final
passage.
ADOPTED this 22°d day of June, 2010.
e
ATTEST:
Mary E. City Clerk, City Orange
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF ORANGE )
I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby
certify that the foregoing Ordinance was introduced at the regular meeting of the City
Council held on the 8th day of June, 2010, and thereafter at the regular meeting of said City
Council duly held on the 22°d day of June, 2010, was duly passed and adopted by the
following vote, to wit:
AYES:COUNCILMEMBERS:Smith, Murphy, Cavecche, Dumitru, Bilodeau
NOES:COUNCILMEMBERS:None
ABSENT:COUNCILMEMBERS:None
ABSTAIN:COUNCILMEMBERS:None
r
Mary E. City Clerk, City Orange
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