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6151ORDINANCE NO. 6151 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM (i) APPROVING AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00002 BY AND BETWEEN THE CITY OF ANAHEIM AND 1515 E. KATELLA AVENUE -ANAHEIM, LLC (ii) MAKING CERTAIN FINDINGS RELATED THERETO, AND (iii) AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT FOR AND ON BEHALF OF THE CITY. WHEREAS, On or about June 7, 2005, the City of Anaheim ("City") and BRE Properties, Inc. and the Peter Dunkel Revocable Family Trust and the Larry Dunkel Revocable Family Trust entered into that certain Development Agreement No. 2005-00002 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462124 (the "Development Agreement") with respect to that certain real property as legally described in Attachment No. 1, which is attached hereto and incorporated herein by this reference. Copies of the Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California; and WHEREAS, the Development Agreement provides for the development of a 196 unit condominium project; and WHEREAS, subsequent to the recordation of the Development Agreement, the fee title interest in the project was sold, transferred, conveyed or assigned to 1515 E. Katella Avenue -Anaheim, LLC ("Owner"), making 1515 E. Katella Avenue -Anaheim, LLC the sole Owner of the Project; and WHEREAS, pursuant to Section 18 of the Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, Owner, submitted a request to extend the Term, as described in Section 2 of the Development Agreement from a period of five (5) years to a period often (10) years; and WHEREAS, the City Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on May 11, 2009, at 2:30 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.60, to hear and consider evidence for and against said amendment to Development Agreement, and to investigate and make findings and recommendations in connection therewith; and WHEREAS, the City Planning Commission, by its Resolution No. PC2009-54, recommended that the City Council approve Amendment No. 1 to the Development Agreement to extend the Term of the Development Agreement based on the investment and progress made by the applicant to meet the obligations of the Development Agreement, and in recognition of the on-going market conditions which make compliance with the terms of the Development Agreement extremely difficult within the Initial Period as described in Section 2. The Planning Commission further recommended that three new conditions of approval be added to Exhibit "C" to address issues pertaining to enhanced site screening and interim erosion and sediment control during the period of time the site remains vacant and undeveloped; and WHEREAS, the City and Owner intend, in this Amendment No. 1, to revise Section 2 of the Development Agreement to extend the Term of the Development Agreement and add three new conditions of approval to Exhibit "C" of the Development Agreement to provide for the development of a 196 unit condominium project within 10 years, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein; and WHEREAS, the City Council did hold a public hearing on Amendment No. 1 to the Development Agreement, notice of said public hearing having been duly given as required by law; and WHEREAS, the Anaheim City Council has reviewed the proposal and does hereby find that the previously -approved Mitigated Negative Declaration prepared in conjunction with Development Agreement No. 2005-00002 is adequate to serve as the required environmental document in connection with this request; and WHEREAS, after careful consideration of the recommendations of the City Planning Commission and all evidence and reports offered at said hearing the City Council does hereby find and determine, with respect to the request for said amendment to Development Agreement, that all of the conditions and criteria for the approval of said amendment are present as follows: 1. That Amendment No. 1 to the Development Agreement has been properly requested pursuant to Section 5.0 of the Procedures and Requirements for Consideration of Development Agreements and Section 18 of the Development Agreement. 2. That Amendment No. 1 to the Development Agreement is consistent with the City's General Plan in that it is in conformance with the General Plan Mixed Use land use designation and with the goals, policies and objectives for The Platinum Triangle as set forth in the General Plan. 3. That Amendment No. 1 to the Development Agreement will contribute to the orderly development of property in the surrounding area in that it is in conformance with and implements The Platinum Triangle Master Land Use Plan and the PTMU Overlay Zone requirements. 4. That Amendment No. 1 to the Development Agreement is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim. K 5. That Amendment No. 1 to the Development Agreement constitutes a lawful, present exercise of the City's police power and authority under the Statute, the Enabling Ordinance and the Procedures Resolution. 6. That Amendment No. 1 to the Development Agreement is entered into pursuant to and in compliance with its charter powers and the requirements of Section 65867 of the Statute, the Enabling Ordinance and the Procedures Resolution. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: SECTION 1. That Amendment No. 1 to Development Agreement No. 2005-00002 be, and the same is hereby, approved as attached hereto and incorporated herein by this reference. SECTION 2. That the Mayor be, and is hereby, authorized to execute said Amendment No. 1 to Development Agreement 2005-00002 for and on behalf of the City. THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the 21 st day of July , 2009, and thereafter passed and adopted at a regular meeting of said City Council held on the 28th day of July , 2009, by the following roll call vote: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kring NOES: NONE ABSENT: NONE ABSTAIN: NONE CITY OF, I� ATTEST: CITY CLERK OF THE CITY OF NAHEIM 3 OR OF THE CIArOVANAHEIM SPACE ABOVE THE LINE IS FOR RECORDER'S USE AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00002 By and Between THE CITY OF ANAHEIM and 1515 E. KATELLA AVENUE -ANAHEIM, LLC 4 AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00002 This AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00002 (this "Amendment No. 1"), dated for purposes of identification only as of May 1, 2009 (the "Date of Amendment"), is made by 1515 E. KATELLA AVENUE -ANAHEIM, LLC, a Delaware limited liability company. RECITALS A. On or about June 7, 2005, the City of Anaheim ("City") and BRE Properties, Inc. and the Peter Dunkel Revocable Family Trust and the Larry Dunkel Revocable Family Trust entered into that certain Development Agreement No. 2005-00002 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462124 (the "Development Agreement") with respect to that certain real property as legally described in Attachment No. 1, which is attached hereto and incorporated herein by this reference. Copies of the Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California. B. The Development Agreement provides for the development of a 196 unit condominium project, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein. C. Subsequent to the recordation of the Development Agreement, the fee title interest in the project was sold, transferred, conveyed or assigned to 1515 E. Katella Avenue -Anaheim, LLC ("Owner"), making 1515 E. Katella Avenue -Anaheim, LLC the sole Owner of the Project. D. Pursuant to Section 18 of the Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, Owner, submitted a request to extend the Term, as described in Section 2 of the Development Agreement from a period of five (5) years to a period of ten (10) years. E. On May 11, 2009, the Anaheim City Planning Commission recommended approval to City Council of Owner's request for an amendment to the Development Agreement to extend the Term of the Development Agreement based on the investment and progress made by the applicant to meet the obligations of the Development Agreement, and in recognition of the on-going market conditions which make compliance with the terms of the Development Agreement infeasible as described in Section 2. The Planning Commission further recommended that three new conditions of approval be added to Exhibit "C" to address issues pertaining to enhanced site screening and interim erosion and sediment control during the period of time the site remains vacant and undeveloped. F. On , 2009, the Anaheim City Council adopted an ordinance approving an amendment to the Development Agreement to extend the Term of the Development Agreement and add three new conditions of approval pertaining to enhanced site screening and interim erosion and sediment control. 5 G. The City and Owner intend, in this Amendment No. 1, to revise Section 2 of the Development Agreement to extend the Term of the Development Agreement and add three new conditions of approval to Exhibit "C" of the Development Agreement to provide for the development of a 196 unit condominium project within 10 years, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: SECTION 1. That Section 1.16 of the Development Agreement be, and the same is hereby, amended to read as follows: "Owner. "Owner" is 1515 E. Katella Avenue -Anaheim LLC, any person or entity with which or into which 1515 E. Katella Avenue -Anaheim LLC may merge, and any person or entity who may acquire substantially all of the assets of 1515 E. Katella Avenue -Anaheim LLC, and any person or entity who receives any of the rights or obligations under this Development Agreement in accordance with the provisions of Section 28 (Assignment) of this Development Agreement." SECTION 2. That Section 2.1 of the Development Agreement be, and the same is hereby, amended to read as follows: "2.1 The term of this Development Agreement (hereinafter called "Term") shall be that period of time during which this Development Agreement shall be in effect and bind the parties hereto. The Term shall commence on the Development Agreement Date and shall extend for a period of ten (10) years, terminating at the end of the day on the tenth anniversary of the Development Agreement Date, subject to the periodic review and modification or termination provisions defined in Section 25 and Section 27, respectively, of this Development Agreement, or the provisions of 30.1 of this Development Agreement." SECTION 3. That three new conditions of approval be, and the same are hereby, added to Exhibit "C" (Development Agreement Conditions of Approval) of the Development Agreement to read as follows: 6674. That within 14 days of the effective date of the ordinance approving Amendment No. 1 to Development Agreement No. 2005-00002, final enhanced site screening plans shall be submitted for review and approval by 0 the Planning Director, or his/her designee. Said plans shall include a wood fence along the property frontage facing Katella Avenue and a 25 foot return along the southerly portion of Campton Avenue. Enhanced site screening shall be constructed in accordance with approved plans within sixty days of approval of final plans. 75. That within sixty (60) days from the effective date of the ordinance approving Amendment No. 1 to Development Agreement No. 2005-00002 the applicant shall demonstrate to the City Engineer or his/her designee that coverage has been obtained under California's General Permit for Stormwater Discharges Associated with Construction Activity by providing a copy of the Notice of Intent (NOI) submitted to the State Water Resources Control Board and a copy of the subsequent notification of the issuance of a Waste Discharge Identification (WDID) Number. The applicant shall prepare and implement an updated Stormwater Pollution Prevention Plan (SWPPP). A notice posted at the site shall indicate how to arrange a review of the updated SWPPP. Required measures shall include the following: • Current name and 24 hour contact information for individual maintaining erosion control and sediment control measures. • Incorporate Dust Control BMPs. • Describe the long-term operation and maintenance; identify the responsible parties, and funding mechanisms for the Erosion and Sediment Control BMPs. 76. That within sixty (60) days from the effective date of the ordinance approving Amendment No. 1 to Development Agreement No. 2005-00002 the applicant shall submit to the City Engineer or his/her designee a revision to the approved grading plans with updated information as follows: • New WDID number. • New developer contact information. • Updated utility contact information. • Current limits of construction. • New location of proposed fence. • Describe the long-term operation and maintenance; identify the responsible parties, and funding mechanisms for the Erosion and Sediment Control BMPs." SECTION 4. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of the Development Agreement shall remain in full force and effect. The Development Agreement and this Amendment No. 1 shall hereinafter be collectively referred to as the "Agreement." The Agreement integrates all of the terms and conditions of understanding between the City and 7 Owner and supersedes all negotiations or previous agreements with respect to the subject matter hereof. SECTION 5. EFFECTIVE DATE. This Amendment No. 1 to Development Agreement No. 2005-00002 shall take effect immediately upon recordation in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, OWNER HAS EXECUTED THIS AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00002 AS OF THE DATE SET FORTH BELOW. DATE: "OWNER" 1515 E. KATELLA AVENUE -ANAHEIM, LLC By: _ Name: Title: (Signature of owner(s) must be acknowledged by a Notary Public) APPROVED AS TO FORM: CRISTINA TALLEY, CITY ATTORNEY Mark S. Gordon Assistant City Attorney E. ATTACHMENT NO. I [LEGAL DESCRIPTION] The and mftrred to herein is situated in the. State of California, County of Orange, City of ANAHEIM, and is descnbed as fbIlaws: LOT 2 OF TRACT NO. 16$31, AS PER MAP RECORDED IN BOOK 981, PAGES 9 THROUGH 12 INCLUSyVE OF MISCELLANEOUS MAPS, IN THE 'OFFICE OF THE ORANGE COUNTY RECORDEX F ,XCEpT THE TITLE AlD ExCLI)SIVE RIGHT TO ALL OF THE MINERALS AND MINERAL ORES OF EVERY KIND AND CHARACTER NOW KNOWIIS 'TO .M" OR HEREAFTER DISCOVMtED UPON, WrMIN OR UNDERIA-MG SAID LAND OR THAT MAY BE PRODUCED THEREFROM, INCLUDING, STOUT LMMING THE GENERALHY OF THE FOREGOING, ALL PETROLEM. OE, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WMI THE EXCLUSIVE AN9) PERPETUAL RIGHT OF SAID GRAN'MRS, THM SUCCESSORS AND ASSTGNS, OF TKGRESS AND EGRESS BENEATH THE SURFACE OF SAID LAND TO EXPLORE FOR, EXTRACT, MINE AND REMOVE THE SAME, AND To MAKE SUCH USE OF THE SAID LAND BENEATH THE StIRFACE AS IS NECESSARY OR USEFM IN CONNKMON THEREWITH, WHICH USE MAY INCLUDE LATERAL OR SLANT DRHJING,. BORINGDIGGING OR SWMr. OF WELLS, SHAFTS OR TUNNELS; PROVIDED, HOWENrER, THAT SAID GRANTORS, THM StJCCESSOR-S AND ASSIGNS, SHALL NOT USE 111 SURFACE OF SAID LAND IN THE EXERCISE OF ANY OF SAID RIGHTS, AND SHALL NOT DISTURE THE SURFACE Of SAID LAND OR ANY W",OVEMMM -11jEnON, AS RESERVED BY PACIFIC EIT, CIC RAILAh"AY COMPANY, A CORPORATION, AND NORT"vIESTERN PACIFIC RAILROAD COMPANY, A CORPORATION IN DEED REC0gDM3 NOVEMER 21,1960IN 13DGK 5517, PAGE 218 OT 0,FrICIAL RECORDS. PARCELB; A NON-EXCj.jJSTVE, RiFiCIPROCAL EASEMENT FOR PFJVATF SEWER, AS 5E7 FOR171 IN THAT CERTAIN "AGREEMENT FOR -PpJVATE SEW ER, EASE MENI— RECORDED MAY 2 3, 2006 AS INSTRUMENT NO. 2WOW3436M OF OFFICIAL, RECORDS AND SHO W N TIIERETN" ON EX14113IT "A", PERPT-TUAL, NON -r -,X EASEMEN-I'S FOR ACCESS, LNGRESS AND E('vRa3S FOR VEHICULAR AND PEDESTRIAN ENTRY AS CREATED IN THAT CERTAIN "RECIPROCAL EASEMENTS AND MAINTENANCE AGREENIFN71"R.CORDED JUNE 6, 2006 AS INSTRUMENT NO. 2006M379004 OF (LFFICLAL RECORDS, AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA COUNTY OF ORANGE I am a citizen of the United States and employed in the county aforesaid. I am over the age of eighteen years and not a party to or interested in the above -entitled matter. I am the current Custodian of Records for the Orange County Register and its publications, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California on June 7, 1984, Case No A-122949 in the County of Orange, State of California. The advertisement that is adhered to this notice is a true printed copy as it was published in each regular and entire issue of the Anaheim Bulletin August 6, 2009 1 declare under penalty of perjury that the foregoing is true and correct. Executed at Santa Ana, Orange County, California, on Seember 18, 200 Shmmett Custodi of Records For The Orange County Register 625 North Grand Ave Santa Ana CA 92701 F -0'd See attached Proof of Publication SUMMARY PUBLICATION CITY OF ANAHEIM ORDINANCE NO. 6151 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM (I) APPROVING AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT 140. 2005.OW02 BY AND BETWEEN THE CITY OF ANAHEIM AND 1515 E. KATELLA AVENUE -ANAHEIM, LLC Oil MAKING CERTAIN FINDINGS RELATED THERETO. AND 010 AU- THORWING THE MAYOR TO EXECUTE SAID AMEND- MENT FOR AND ON BEHALF OF THE CITY. This ordinance approves an amendment to Development Apreement No. 2005.00002 by and between the City of Anaheim and 1515 E. Katella Avenue -Anaheim, LCC, to pro- vide for the development of a 196 -unit condominium devel- cpment. This amendment to the Development Agreement extends the term of the agreement from June 15, 2010 to June 15, 2015. The amendment also changes Condition No. 74 of the Development Agreement to require the applicant to submit a fencing plan for approval by the Planning Direc• tor, and a reguirement to remove any graffiti within 60 -days. 1, Linda N. Andal, City Clerk of the City of Anaheim, -do here- by certify that the foregoing is a summary W Ordinance No. 6151 which ordinance was introduced at a regular maWng of the City Council of the City of Anaheim on the 21st day of July, 2009 and was duly passed and adopted at a regular meeting of said Council on the 28th day of July. 2009 by the following roll 0811 vote of the members thereof: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Krinn NOES: NONE ABSENT: NONE ABSTAIN: NONE The above summary is a brief description of the subject matter contained in the text of Ordinance No. 6151, which has been prepared pursuant to Section 512 of the Charter of the City of Anaheim. This summary does not include or de- scribe every provision of the ordinance and should not be relied on as a substitute for the full text of the ordinance. To obtain a copy of the full text of the ordinance, please contact the Office of the City Clerk, (714) 765-5166, between 6:00 AM and 5:00 PM, Monday through Friday. There is no charge for the copy. Publish: Anaheim Bulletin August 6, 2009 9127686 AA TS:FT 600E-8T-d3S