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PC 2011/05/09City of Anaheim Planning Commission Agenda Monday, May 9, 2011 Council Chamber, City Hall 200 South Anaheim Boulevard Anaheim, California Chairman: Stephen Faessel Chairman Pro-Tempore: Peter Agarwal Commissioners: Todd Ament, Joseph Karaki, Harry Persaud Victoria Ramirez, John Seymour Call To Order -5:00 p.m. Pledge Of Allegiance Public Comments Consent Calendar Public Hearing Items Commission Updates Discussion Adjournment For record keeping purposes, if you wish to make a statement regarding any item on the agenda, please complete a speaker card in advance and submit it to the secretary. A copy of the staff report may be obtained at the City of Anaheim Planning Department, 200 South Anaheim Boulevard, Anaheim, CA 92805. A copy of the staff report is also available on the City of Anaheim website www.anaheim.net/planningon Thursday, May5, 2011, after 5:00 p.m. Any writings or documents provided to a majority of the Planning Commission regarding any item on this agenda (other than writings legally exempt from public disclosure) will be made available for public inspection in the Planning Department located at City Hall, 200 S. Anaheim Boulevard, Anaheim, California, during regular business hours. You may leave a message for the Planning Commission using the following planningcommission@anaheim.net e-mail address: H:\TOOLS\PC Admin\PC Agendas\(050911).doc AnaheimPlanning Commission Agenda -5:00 P.M. Public Comments: This is an opportunity for members of the public to speak on any item under the jurisdiction of the Anaheim City Planning Commission or public comments on agenda items with the exception of public hearing items. Consent Calendar: The items on the Consent Calendar will be acted on by one roll call vote. There will be no separate discussion of these items prior to the time of the voting on the motion unless members of the Planning Commission, staff,or the public request the item to be discussed and/or removed from the Consent Calendar for separate action. Minutes ITEM NO. 1A Motion Receiving and approving the Minutes from the Planning January 19, 2011 Commission Meeting of.These minutes have been provided to the Planning Commission and are available for review at the Planning Department. ITEM NO. 1B Motion Receiving and approving the Minutes from the Planning January 31, 2011 Commission Meeting of . These minutes have been provided to the Planning Commission and are available for review at the Planning Department. ITEM NO. 1C Motion Receiving and approving the Minutes from the Planning February 28, 2011. Commission Meeting of These minutes have been provided to the Planning Commission and are available for review at the Planning Department. ITEM NO. 1D Motion Receiving and approving the Minutes from the Planning March 14, 2011 Commission Meeting of . These minutes have been provided to the Planning Commission and are available for review at the Planning Department. 05/09/11 Page 2of 11 Public Hearina Items ITEM NO. 2 CONDITIONAL USE PERMIT NO. 2010 -05537 VARIANCE NO. 2011 -04843 PUBLIC CONVENIENCE OR NECESSITY NO. 2010 -00074 Request for continuance to June 6, 2011 (DEV2010- 00177) Owner: Paul Roper D & P, LLC 987 Enterprise Street Orange, CA 92867 Applicant: Juan Reynoso Reymart, Inc 1160 North Kraemer Boulevard Anaheim, CA 92806 Agent: Mike Ayaz Rick Blake, Attorney at Law 2107 North Broadway, Suite 106 Santa Ana, CA 92706 Location: 1168 South State College Boulevard The applicant proposes to establish a nightclub in an Project Planner: existing commercial building, to include a Type 48 (Public David See Premise) ABC license, sale and consumption of alcoholic dsee(olanaheim.net beverages, public dancing, cover charge, and live entertainment with less parking than required by Code. Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). Continued from the January 19, January 31, February 28, March 28, and April 11, 2011 Planning Commission meetings. 05/09/11 Page 3 of 11 ITEM NO. 3 CONDITIONAL USE PERMIT NO. 2010 -05533 A request for withdrawal (DEV2010- 00167) of this application has been received by the applicant. Owner: Dennis Blake 201 West Santa Fe Avenue Placentia, CA 92870 Applicant: Phillip Schwartze 31103 Ranch Viejo Road D -2260 San Juan Capistrano, CA 92675 Location: 4110 East La Palma Avenue The applicant proposes to establish a cheerleading and Project Planner: dance instruction facility. Scott Koehm skoehmaanaheim. net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities) Continued from the April 11, 2011 Planning Commission meeting. 05/09/11 Page 4 of 11 ITEM NO. 4 PUBLIC CONVENIENCE OR NECESSITY NO. 2011 -00075 Resolution No. _ (DEV2011- 00020) Owner: Cal Asia Property Development 1517 South Sepulveda Blvd. Los Angeles, CA 90025 Applicants: Alcoholic Beverage Consulting Service Michael Brewer 26023 Jefferson Avenue, Suite D Murrieta, CA 92562 Jalos Food Enterprises Inc. Josefina Gonzalez 10147 San Fernando Road Pacoima, CA 91331 Location: 2394 West Lincoln Avenue The applicant proposes the sale of alcoholic beverages for off- Project Planner: premises consumption in a proposed grocery store (Vallarta). Della Herrick dherrick(c_)anaheim. net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). ITEM NO. 5 VARIANCE NO. 2011 -04852 Resolution No. (DEV2011- 00046) Owner: Vincent Nardolillo 381 South Yorkshire Circle Anaheim, CA 92808 Location: 381 South Yorkshire Circle The applicant proposes to construct a second story room Project Planner: addition to an existing single - family residence with a side yard Vanessa Norwood setback less than required by Code. morwood(o1anaheim.net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). 05/09/11 Page 5 of 11 ITEM NO. 6 CONDITIONAL USE PERMIT NO. 2011 -05552 Resolution No. _ (DEV2011- 00022) Owner: Gregory Douglas 800 South Lemon Street Anaheim, CA 92805 Applicant: Alexander Lew 2903 Saturn Street, Suite H Brea, CA 92821 Location: 800 South Lemon Street The applicant proposes to construct a 60 -foot high, Project Planner: ground- mounted stealth telecommunications antenna at Scott Koehm an existing church. skoehOcIanaheim. net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 3 (New Construction of Small Facilities). ITEM NO. 7 CONDITIONAL USE PERMIT NO. 2011 -05546 Resolution No. _ (DEV2011- 00005) Owner: John Oskoui Anaheim Union High School District 1765 West Cerritos Avenue Anaheim, CA 92804 Applicant: Trillium Consulting Tim Miller 5912 Bolsa Avenue, Suite 202 Huntington Beach, CA 92649 Location: 1765 West Cerritos Avenue The applicant proposes to construct a 60 foot -high, Project Planner: ground- mounted stealth telecommunications antenna at Della Herrick Loara High School. dherrickCcDanaheim. net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 3 (New Construction of Small Facilities). 05/09/11 Page 6 of 11 ITEM NO. 8 DEVELOPMENT AGREEMENT NO. 2010 -00005 Resolution No. _ (DEV2010- 00182) Owner: RRM Properties, LTD PO Box 3600 Corona, CA 92882 Applicant: Ted Frattone Hunsaker and Associates 3 Hughes Irvine, CA 92618 Location: The 15.5 -acre site is located generally south of the Riverside (SR -91) Freeway, east of Eastern Transportation Corridor (SR -241) and approximately 3,600 feet southeast of the intersection of Santa Ana Canyon Road and Gypsum Canyon Road. The applicant requests a Development Agreement by and between the City of Anaheim and RRM Properties, LTD. to Project Planner: Scott Koehm provide for the development of 56 single - family residential skoehm(olanaheim.net units in conjunction with previously- approved Tentative Tract Map 17289 (Robertson's property). Environmental Determination: Previously- approved Mitigated Negative Declaration. ITEM NO. 9 CONDITIONAL USE PERMIT NO. 2011 -05558 Resolution No. (DEV2011- 00042) Owner: Michael Wallace 116 McCadden Place Los Angeles, CA 90004 Applicant: Ron Mills 1600 West Lincoln Avenue Anaheim, CA 92801 Location: 1600 West Lincoln Avenue The applicant proposes to permit a recreational vehicle Project Planner: storage facility at an existing automobile sales dealership. Scott Koehm skoehm(ol anaheim. net Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). 05/09/11 Page 7 of 11 ITEM NO. 10 CONDITIONAL USE PERMIT NOS. 3253 AND 3881 VARIANCE NO. 2011 -04854 (DEV2010- 00123) Owner: Bayport Imperial Promenade Associates, LP 3090 Pullman Street Costa Mesa, CA 92626 Agent: Brittany DeBeikes DeBeikes Investment Company 5289 Alton Parkway Irvine, CA 92604 Location: 5645 -5675 East La Palma Avenue The applicant proposes to amend Conditional Use Permit No. 3881 by deleting a condition of approval pertaining to the maximum number of seats for a previously- approved restaurant and to modify Conditional Use Permit No. 3253 to increase the permitted area of restaurant uses within an existing retail center with less parking provided than required by Code. Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class (Existing Facilities). Resolution No. Resolution No. Project Planner: Scott Koehm skoehm(o)anaheim. net Adjourn to Monday, May 23, 2011 at 5:00 p.m. 05/09/11 Page 8 of 11 CERTIFICATION OF POSTING I hereby certify that a complete copy of this agenda was posted at: 4:30p.m.May 4, 2011_ (TIME)(DATE) LOCATION: COUNCIL CHAMBER DISPLAY CASE ANDCOUNCIL DISPLAY KIOSK SIGNED: If you challenge any one of these City of Anaheim decisions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in a written correspondence delivered to the Planning Commission or City Council at, or prior to, the public hearing. RIGHTS OF APPEAL TO CITY COUNCIL FROM PLANNING COMMISSION ACTION Any action taken by the Planning Commission this date regarding Reclassifications, Conditional Use Permits,Variances,Tentative Tract and Parcel Maps will be final 10 days after Planning Commission action unless a timely appeal is filed during that time. This appeal shall be made in written form to the City Clerk, accompanied by an appeal fee in an amount determined by the City Clerk. The City Clerk, upon filing of said appeal in the Clerk's Office, shall set said petition for public hearing before the City Council atthe earliest possible date. You will be notified by the City Clerk of said hearing. ANAHEIM CITY PLANNING COMMISSION 05/09/11 Page 9of 11 The City of Anaheim wishes to make all of its public meetings and hearingsaccessible to all members of the public.The City prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. If requested, the agenda and backup materials will be made available inappropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. Any person who requires a disability-related modification or accommodation, including auxiliary aids or services, in order to participate in the public meeting may request such modification, accommodation, aid or service by contacting the Planning Department either in person at 200 South Anaheim Boulevard, Anaheim, California, or by telephone at (714) 765-5139, no later than 10:00 a.m. one business day preceding the scheduled meeting. La ciudad de Anaheim desea hacer todas sus reuniones y audiencias públicas accesibles a todos los miembros del público. La Ciudad prohíbe la discriminación por motivos de raza , color u origen nacional en cualquier programa o actividad que reciba asistencia financiera federal. Si se solicita, la agenda y los materiales de copia estarán disponible en formatos alternativos apropiados a las personas con una discapacidad, según lo requiere la Sección 202 del Acta de Americanos con Discapacidades de 1990 (42 U.S.C. Sec. 12132), las normas federales y reglamentos adoptados en aplicación del mismo. Cualquier persona que requiera una modificación relativa a la discapacidad, incluyendo medios auxiliares o servicios, con el fin de participar en la reunión pública podrá solicitar dicha modificación, ayuda o servicio poniéndose en contacto con la Oficina de Secretaria de la Ciudad ya sea en persona en el 200 S Anaheim Boulevard, Anaheim, California, o por teléfono al (714) 765-5139, antes de las 10:00 de la mañana un día habil antes de la reunión programada. 05/09/11 Page 10of 11 S C H E D U L E 2011 May 23 June 6 June 20 July 6 (Wed) July 18 August 1 August 15 August 29 September 12 September 26 October 10 October 24 November 7 November 21 December 5 December 19 05/09/11 Page 11of 11 ûèèûùôï÷îèîí êé éöê êé êé êé êé êé êé êé éöêéöêéöê éöêéöê éöê éöê êé éöê êé éöê êé êé êé êé êé êé éöê éöê éöêéöê éöê éöê êï êï êïêï êï ûìèé öíçêìð÷ä öíçêìð÷äöíçêìð÷ä öíçêìð÷ä øç êï éçùûéûûðïíîèåííøé ùõ ûìèé ê÷èûóð øç êï êï ùõ ûìèé ùõ öíçêìð÷ä úçéóî÷éé øç ø÷æ ùíðð÷õ÷ ê÷éèûçêûîè ó ó ê÷èûóð ûçèí ó èêçùñ ê÷èûóð ìûêèé ùõ ê÷èûóð ó ùõ é÷êæóù÷ é÷êæóù÷ éèûèóíî éèûèóíî ó ùõ ó é÷êæóù÷ é÷êæóù÷ èóð÷ éèûèóíî éèûèóíî éèíê÷ ùõ ê÷éèûçêûîè êï åûè÷êêóøõ÷ ó ûìûêèï÷îèé ù÷îè÷êìíóîè ó øç úçéóî÷ééìûêñ ùõ èóð÷éèíê÷ ê÷èûóð û×ÊÓÛÐìÔÍÈÍ ûÌÊÓÐ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔéÈÛÈ×ùÍÐÐ×Õ×úÍÇÐ×ÆÛÊØ ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔéÈÛÈ×ùÍÐÐ×Õ×úÍÇÐ×ÆÛÊØ ßÌÌßÝØÓÛÒÌ ÒÑò î City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí êï è øçìð÷ä êï éûæûîîû ùûéûú÷ðóîøû è ôóõôéùôííð ûìûêèï÷îèé è ðíå÷ øç ûìèé ÷ð÷ï÷îèûêã øç éùôííð êï ùûéûúíîóèû ûìûêèï÷îèé ùõ øç êï êï ê÷èûóð ûìèé ûìèé øç øç ùõ æûùûîè êï êï öíçêìð÷ä öíçêìð÷ä êé íð ùõ ùõ éóîõð÷öûïóðãê÷éóø÷îù÷ ï÷øóùûð êï úùù ê÷èûóð ê÷èûóð íööóù÷ èíåîôíï÷é øç ùõ ø÷æ ê÷èûóð êé ùõ éöê êé èíåîôíï÷é ê÷èûóð ùõ éöê ê÷èûóð êé éöê ùõ ê÷èûóð êé éöê êé êï úùù éöê èíåîôíï÷é è êé øç éöê éöê êé éöê êé êé êé êé êé éöêéöê éöê éöê éöê êé éöê êééöê êé êé êé éöê éöê éöê û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî åùê÷éù÷îèûæ÷ éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ åðóîùíðîûæ÷ åðóîùíðîûæ÷ ø÷æ å×ÉÈðÓÎÙÍÐÎûÆ×ÎÇ× ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî åùê÷éù÷îèûæ÷ éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ åðóîùíðîûæ÷ åðóîùíðîûæ÷ ø÷æ å×ÉÈðÓÎÙÍÐÎûÆ×ÎÇ× [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT A CLASS 1 CATEGORICAL EXEMPTION IS THE APPROPRIATE ENVIRONMENTAL DETERMINATION ANDAPPROVING PUBLIC CONVENIENCE OR NECESSITYNO. 2011-00075 FOR A TYPE 21,OFF-SALE OF ALCHOLIC BEVERAGE GENERAL ALCOHOLIC BEVERAGE CONTROL LICENSE (DEV2011-00020) (2394 WEST LINCOLN AVENUE) WHEREAS, on July 11, 1995, the City Council adopted Resolution No. 95R-134 establishing procedures and delegating certain responsibilities to the Planning Commission relating to the determination of "public convenience or necessity" on those certain applications requiring that such determination be made by the local governing body pursuant to applicable provisions of the Business and Professions Code, and prior to the issuance of a license by the Department of Alcoholic Beverage Control (ABC); and WHEREAS, Section 23958 of the Business and Professions Code provides that the ABC shall deny an application for a license if issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except when an applicant has demonstrated that public convenience or necessity would be served by the issuance of a license; and WHEREAS, the Planning Commission of the City of Anaheim did receive an application for a Determination of Public Convenience or Necessity to permit the sales of alcoholic beverages for off-site consumption in conjunction with a grocery store for certain real property situated in the City of Anaheim, County of Orange, State of California,shown on Exhibit “A”, attached hereto and incorporated herein by this reference. WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim onMay 9, 2011, at 5:00 p.m., notice of said public hearing having been duly given as required by lawand in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.60, to hear and consider evidence for and against said proposed determination of public convenience or necessity for an alcoholic beverage control license and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Commission, after due inspection, investigation and study made by itselfand in its behalf, and after due consideration of all evidence and reports offered at said hearing, does find and determine the following facts: 1.That the C-G(General Commercial) zone permits the sales of alcoholic beverages for off-site consumption in conjunction with agrocery store over 15,000 square feet, pursuant to Sections18.08.030 (Primary Uses, Commercial Zones),of the Anaheim Municipal Code. The proposed sales of alcoholic beverages for off-site consumption will not adversely affect the adjoining land uses or the growth and development of the area in which it is proposed to be located because it isaccessory toamarket and has commercialuses surroundingthe property. -1-PC2011-*** 2.That California state law requires a Determination of Public Convenience or Necessity when property is located in a reporting district with a high crime area,and that Section 23958 of the Business and Professions Code provides that the ABC shall deny an application for a license if issuance of that license would tend to create a law enforcement problem or if issuance would result in, or add to, an undue concentration of licenses, except when an applicant has demonstrated that public convenience or necessity would be served by issuance of a license. 3.That Resolution No. 95R-134 authorizes the City of Anaheim Police Department to make recommendations related to the public convenience or necessity determinations; and said recommendations shall take the form ofconditions of approval to be imposed on the determination in order to ensure that the sale and consumption of alcoholic beverages does not adversely affect any adjoining land use or the growth and development of the surrounding area. 4.That subject property is located within Census Tract 871.01with a population that allows for three off sale ABC licenses and there is presently one license in the tract. The Anaheim Police Department evaluates these requests based on the crime rates within a ¼ mile radius for the subject site. This site hasa ¼ mile radius crime rate of 77% percent above the average; however, the Police Department has found that the types of crimes reported in the neighborhood are not typically alcohol-related.The Police Department does not oppose this use, subject to the business continually adhering to the recommended conditions of approval. 5.That the traffic generated by the grocery store with off-premises alcoholic sales will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area. 6.That the Determination of Public Convenience or Necessity can be made based on the finding that the license requested is consistent with the Planning Commission’s previous approvals for such determinationsand further that granting the Determination of Public Convenience or Necessity under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim as the sale of alcoholic beverages is ancillary to the proposed grocery store and would serve as an added convenience to residents and visitors to the areawho choose to shop at this establishment. The Police Department indicates no specific concerns related to off-premises alcoholic beverage sales and operation of this business, subject to the conditions of approval. WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15303, Class 1 (Existing Facilities) as defined in the State CEQA Guidelines, and is therefore,exempt from the requirement to prepare additional environmental documentation. NOW THEREFORE BE IT RESOLVED that the Anaheim City Planning Commission does hereby determine that the public convenience or necessity will be served by the issuance of a license for the sale of alcoholic beverages for off-premises consumption at this location subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference which are found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health,safety and general welfare of the Citizens of the City of Anaheim. -2-PC2011-*** BE IT FURTHER RESOLVED this permit is approved without limitations on the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment of Permit Approval) and 18.60.200 (City- Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVEDthat the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that the Anaheim Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the findings hereinabove set forth. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application. NOW, THEREFORE, BE IT RESOLVED that the Anaheim Planning Commission does hereby approve the Determination of Public Convenience or Necessity No. 2011-00075subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference which are hereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health, safety and general welfare of the citizens of the City of Anaheim. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting ofMay 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina,Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day of May 2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -4-PC2011-*** -5-PC2011-*** EXHIBIT “B” PUBLIC CONVENIENCE OR NECESSITY NO. 2011-00075 (DEV2011-00020) REVIEW SIGNED BYOFF BY NO.CONDITIONS OF APPROVAL GENERAL 1There shall be no exterior advertising or sign of any kind Police or type, including advertising directed to the exterior Department from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. No display of alcoholic shall be located outside of a 2 Police building or within five (5) feet of any public entrance to Department the building. The area of alcoholic displays shall not exceed 25% of 3 Police thetotal display area in a building. Department Sale of alcoholic shall be made to customers only when 4 Police the customer is in the building. Department The possession of alcoholic beverages in open containers 5 Police and the consumption of alcoholic beverages are Department prohibited on or around these premises. The gross sales of alcoholic beverages shall not exceed 6 Police 35 percent of all retail sales during any three (3) month Department period. The applicant shall maintain records on a quarterly basis indicating the separate amounts of sales of alcoholic beverages and other items. These records shall be made available for inspection by any City of Anaheim official when requested. Any graffiti painted or marked upon the premises or on 7 Police any adjacent area under the control of the licensee shall Department be removed or painted over within 24 hours of being applied. Petitioner shall police the area under their control in an 8 Police effort to prevent loitering of persons around the premises. Department The parking lot of the premises shall be equipped with 9 Police lighting of sufficient power to illuminate and make easily Department discernible the appearance and conduct of all person on or about the parking lot. Additionally, the position of such lighting shall not disturb the normal privacy and use of any neighboring residences. -6-PC2011-*** 10The subject property shall be developed substantially in Planning accordance with plans submitted to the City of Anaheim by the applicant and which plans are on file with the Planning Department marked Exhibit Nos. 1 (Site Plan) and 2 (Floor Plans) and as conditioned herein. -7-PC2011-*** ßÌÌßÝØÓÛÒÌ ÒÑò í ßÌÌßÝØÓÛÒÌ ÒÑò ë ßÌÌßÝØÓÛÒÌ ÒÑò ê FRONT VIEW OF SHOPPING CENTER AND PARKING LOT RESIDENTIAL TO THE WEST OF THE PREMISES LOADING DOCK IN THE REAR OF THE BUILDING REAR VIEW OF PREMISES RESIDENTAL TO THE WEST OF THE PREMISES BLOCK WALL / LANDSCAPING TO THE WEST OF THE PREMISES LOOKING FROM ACROSS THE STREET RESIDENTIAL TO THE WEST OF THE PREMISES BLOCK WALL / LANDSCAPING TO THE WEST OF THE PREMISES WEST SIDE OF THE PREMISES LOOKING FROM FRONT OF PREMISES PARKING LOT LOOKING NORTH PARKING LOT LOOKING NORTH TOWARD ENTRYWAY BLOCK WALL / LANDSCAPING BEHIND THE PREMISES FRONT VIEW OF PREMISES FRONT VIEW OF SHOPPING CENTER REAR VIEW OF BUILDING BLOCK WALL / LANDSCAPING TO THE WEST OF THE PREMISES LOOKING FROM REAR OF BUILDING ACCESS ROAD AND BLOCK WALL / LANDSCAPING BEHIND PREMISES WEST SIDE OF THE PREMISES LOOKING FROM REAR OF BUILDING ACCES ROAD AND BLOCK WALL / LANDSCAPING BEHIND PREMISES ÒÑò éßÌÌßÝØÓÛÒÌ City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí êô éù éöê êô éù éöê êô éù êô éù éöê éöê êô éù êô éù éöê êô éù êô éù éöê éöê éöê êô éù êô éù éöê éöê êô éù éöê êô éù éöê êô éù éöê êô éù êô éù êô éù éöê êô éù æûùûîè éöê éöê êô éù éöê êô éù éöê êô éù êô éù ø÷æ êô éù éöê êô éù éöê éöê éöê êô éù êô éù éöê éöê êô éù êô éù éöê éöê êô éù êô éù éöê êô éù éöê êô éù éöê éöê êô éù éöê êô éù éöê êô éù êô éù éöê éöê êô éù êô éù éöê éöê û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔãÍÊÑÉÔÓÊ×ùÓÊÙÐ× ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔãÍÊÑÉÔÓÊ×ùÓÊÙÐ× [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT A CLASS 1 CATEGORICAL EXEMPTION IS THE APPROPRIATE ENVIRONMENTAL DETERMINATION AND APPROVINGVARIANCE NO. 2011-04852 (DEV2011-00046) (381 SOUTH YORKSHIRE CIRCLE) WHEREAS, the Anaheim Planning Commissiondid receive a verified Petition for Variance for certain real property situated in the City of Anaheim, County of Orange, State of California shown on Exhibit “A”, attached hereto andincorporated herein by this reference; and WHEREAS, the petitioner requestsa variance from sideyard setback to expanda two-story,single-family residenceto include a second story room addition in the Single-Family Hillside Residential (RH-2)Scenic Corridor (SC) Overlay zone and the Anaheim General Plan designates this property for Estate Density residential land uses;and WHEREAS, the Planning Commissiondid hold a public hearing at the Civic Center in the City of Anaheim onMay9,2011,at 5:00p.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 “Procedures”, to hear and consider evidence for and against said proposed variance and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing, does find and determine the following facts: 1.That the applicant requests to deviate fromthe following to expand atwo-story, single-family residence to include a second story room addition: SECTION NO. 18.04.100.010.0101Minimum sideyard setback (15feet required;5feet proposed) 2.The requested varianceis hereby approvedbecause there are special circumstances applicable to the propertypertaining totheirregular and narrow shapeof the lot and the fact that a significant portion of this lot is hillsidearea.Further, the expansion is consistent with the existing building footprint and maintains the existing 5-foot side yard setback. In addition, nearby and adjacent properties have obtained variances for similar circumstances and areundertheidentical zoning classification. 3.Strictapplication of the Code woulddeprive the property of privileges enjoyed by other propertiesunder the identical zoning classification in the vicinity.Specifically, adjacent properties also have 5-foot side yard setbacks. -1-PC2011- WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15301, Class 1(Existing Facilities)as defined in the State CEQA Guidelines, and is therefore, exempt from the requirement to prepare additional environmental documentation. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby approve, Variance No. 2011-04852subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference, which arehereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health, safety and general welfare of the Citizens of the City of Anaheim. Extensions for further time to complete conditions of approval maybe granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. Timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition (s), (ii) the modification complies with the Anaheim Municipal Code and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development. BE IT FURTHER RESOLVED, that this Varianceis approved without limitations on the duration of the use.Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that approval of thisapplication constitutes approval of the proposed request only to the extent that itcomplies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoiceor prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application. -2-PC2011-*** THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of May9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commissionheld onMay9,2011, by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day ofMay,2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** -4-PC2011-*** EXHIBIT “B” VARIANCE NO. 2011-04852 (DEV2011-00046) REVIEWSIGNED BYOFF BY NO.CONDITIONS OF APPROVAL GENERAL 1The property shall be developed substantially in Planning accordance with plans and specifications submitted to the City of Anaheim by the applicant and which plans are on file with the Planning Department marked Exhibit No. 1,(Site Plan), Exhibit No. 2 (Elevation Plans) and Exhibit No.3(Floor Plan)and as conditioned herein. -5-PC2011-*** ßÌÌßÝØÓÛÒÌ ÒÑò í ßÌÌßÝØÓÛÒÌ ÒÑò ì ëÒÑò ßÌÌßÝØÓÛÒÌ City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí êï éûúù û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔð×ÏÍÎéÈÊ××È ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éÍÇÈÔð×ÏÍÎéÈÊ××È [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT A CLASS 3CATEGORICAL EXEMPTIONIS THE APPROPRIATE ENVIRONMENTAL DOCUMENTATIONANDAPPROVING CONDITIONAL USE PERMIT NO. 2011-05552 (DEV2011-00022) (800SOUTH LEMON STREET) WHEREAS, the Anaheim City Planning Commission did receive a verified Petition for Conditional Use Permit No. 2011-05552to construct a 60-foot tall stealth telecommunications facility on an existing church propertyfor certain real property situated in the City of Anaheim, County of Orange, State of California, shown on Exhibit “A”, attached hereto and incorporated herein by this reference. WHEREAS, this property is developed with achurchlocated in the RM-3 (Multiple-Family Residential)zoneandthe Anaheim General Plan designates the property for Low Density Residential land uses;and WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of AnaheimonMay 9,2011, at 5:00 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 proposed conditional use permit and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing, does find and determine the following facts: 1.The request to construct a 60-foot tall stealth telecommunications facility on an existing church propertyis properlyone for which a conditional use permit is authorized under Code Section Nos. 18.06.030.040.0402(Primary Uses,Commercial Zones)of the Anaheim Municipal Code. 2.Theproposed stealth telecommunications facilitywill not adversely affect the adjoining land uses and the growth and development of the area in which it is located because it will be located at the rear of the church property and blend in with the added pine trees. 3.The size and shape of the site for the use is adequate to allow the full development of the proposed use in a manner not detrimental to the particular area or to the health and safety of the citizens of Anaheimbecausethistelecommunications facilitywill not impact the development of the area. 4.The traffic generated by the proposed use will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the areabecausenotraffic will begenerated by this unmanned telecommunications facility. -1-PC2011-*** 5.Thegranting of the conditional use permit under the conditions imposed will not bedetrimental to the health and safety of the citizens of the City of Anaheim as the existing land use will continue to becompatible with the surrounding areaand the proposed telecommunications facility isnot a health or safety risk to the citizens of the City of Anaheim. 6.Analternative analysis wasprovided and staffhas determined that the application as approved would have a lesser impact on the aesthetics and welfare of the surrounding community as compared to other alternativesand that the alternative existing tower is 27 feet in height which is too low to meet the coverage objectivesof this site. 7.Based on the evidence presented, the additional height above the maximum building height for the applicable zone is reasonably necessary for collocation of facilities or for the efficient operation of the proposed facility. 8.No negative impacts have been identified and this telecommunications facility will be a stealth designand three additional trees will be planted to blend in with the surrounding trees and landscape. WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15303, Class 3(New Construction or Conversion of Small Structures) as defined in the State CEQA Guidelines, and is therefore, exempt from the requirement to prepare additional environmental documentation. NOW, THEREFORE, BE IT RESOLVED that the Anaheim City Planning Commission does hereby approve Conditional Use Permit No. 2011-05552subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference, which are hereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health, safety and general welfare of the Citizens of the City of Anaheim. Extensions for further time to complete conditions of approval may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. Timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition (s), (ii) the modification complies with the Anaheim Municipal Code and (iii)the applicant has demonstrated significant progress toward establishment of the use or approved development. BE IT FURTHER RESOLVED, that this Conditional Use Permitis approved without limitations on the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. -2-PC2011-*** BE IT FURTHER RESOLVED that approval of this application constitutes approval of the proposed request only to the extent that it complies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval ofthe request regarding any other applicable ordinance, regulation or requirement. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of May 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina,Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day of May2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** -4-PC2011-*** EXHIBIT“B” CONDITIONAL USE PERMIT NO. 2011-05552 (DEV2011-00022) REVIEW SIGNED BY OFF BY NO.CONDITIONS OF APPROVAL PRIOR TO ISSUANCE OF BUILDING PERMITS 1The proposed telecommunications antenna shall be Planning limited to a maximum of sixty (60) feet in height. Services Said information shall be specifically shown on plans submitted for building permits. 2The antennas and equipment cabling shall not be Planning visible to public view. All equipment cabling shall Services be routed inside of the structure and shall be screened from view. Said information shall be specifically shown on plans submitted for building permits. 3Any required relocation of City electrical facilities Public shall be at the property owner/developer’s expense.Utilities – Electrical Engineering GENERAL 4The subject property shall be developed substantially Planning in accordance with plans submitted to the City of Anaheim by the applicantand which plans are on file with the Planning Department marked Exhibit Nos. 1 (Site Plans) and 2 (Elevations) and as conditioned herein. -5-PC2011-*** íÒÑò ßÌÌßÝØÓÛÒÌ ß½½«®¿½§ ±º °¸±¬± ·³«´¿¬·±² ¾¿»¼ «°±² ·²º±®³¿¬·±² °®±ª·¼»¼ ¾§ °®±¶»½¬ ¿°°´·½¿²¬ò Ð®±°±»¼ Û¨·¬·²¹ Ô±±µ·²¹ ±«¬¸ º®±³ °¿®µ·²¹ ´±¬ Ô±½¿¬·±² Ê·»© ï ß²¿¸»·³ Ýß çîèðë èðð Í±«¬¸ Ô»³±² Í¬®»»¬ ÞÌÍóÒ¿¬·ª» ß³»®·½¿² Ë²·¬»¼ Ó»¬¸±¼·¬ Ôßëëððß Ôßëëððß ìÒÑò ßÌÌßÝØÓÛÒÌ ß½½«®¿½§ ±º °¸±¬± ·³«´¿¬·±² ¾¿»¼ «°±² ·²º±®³¿¬·±² °®±ª·¼»¼ ¾§ °®±¶»½¬ ¿°°´·½¿²¬ò Ô±±µ·²¹ »¿¬ º®±³ Ô»³±² Í¬®»»¬Ð®±°±»¼ Û¨·¬·²¹ Ô±½¿¬·±² wîðïð Ù±±¹´» Ó¿° °®±°±»¼ ³±²±°·²» Ê·»© î èðð Í±«¬¸ Ô»³±² Í¬®»»¬ ß²¿¸»·³ Ýß çîèðë ÞÌÍóÒ¿¬·ª» ß³»®·½¿² Ë²·¬»¼ Ó»¬¸±¼·¬ Ôßëëððß ß½½«®¿½§ ±º °¸±¬± ·³«´¿¬·±² ¾¿»¼ «°±² ·²º±®³¿¬·±² °®±ª·¼»¼ ¾§ °®±¶»½¬ ¿°°´·½¿²¬ò Ô±±µ·²¹ ²±®¬¸ º®±³ Ê¿´»²½·¿ ßª»²«»Ð®±°±»¼ Û¨·¬·²¹ °®±°±»¼ ³±²±°·²» Ô±½¿¬·±² wîðïð Ù±±¹´» Ó¿° Ê·»© í èðð Í±«¬¸ Ô»³±² Í¬®»»¬ ß²¿¸»·³ Ýß çîèðë ÞÌÍóÒ¿¬·ª» ß³»®·½¿² Ë²·¬»¼ Ó»¬¸±¼·¬ Ôßëëððß ßÌÌßÝØÓÛÒÌ ÒÑò ë City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí ï÷øóùûðíööóù÷ êé éöê êé êé íð êé éöê éöê íööóù÷é éöê êé éöê è öóê÷éèûèóíî êé ùõ éóîõð÷öûïóðãê÷éóø÷îù÷ êé éöê ûçèíø÷ûð÷êéôóì è éöê ûîûô÷óïùóèãðóúêûêã ÷çùðóøúêûîùô êé êé éöê éöê êé éóîõð÷öûïóðãê÷éóø÷îù÷ êé êé éöê êé éöê éóîõð÷öûïóðãê÷éóø÷îù÷ êé ê÷ðóõóíçé êé êé çé÷ è éöê éöê êé ø÷æ éöê ðíûêûôóõôéùôííð ùõ è êé æûùûîè éöê êé éöê éöê ùõ êé ùíîæûð÷éù÷îè éöê ôíéìóèûð ùõ êé êé ï÷øóùûð éöê éöê íööóù÷ êé è ùõ éöê éöê íööóù÷é ùõ êé è êé êé ê÷èûóð éöê ê÷ðóõóíçéçé÷ éöê éöê éóîõð÷öûïóðãê÷éóø÷îù÷ êï ùõ éûêûèíõû ê÷èûóð êé è èíåîôíï÷é éöê ùûè÷êóîõúçéóî÷éé øç û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ å×ÉÈù×ÊÊÓÈÍÉûÆ×ÎÇ× ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ å×ÉÈù×ÊÊÓÈÍÉûÆ×ÎÇ× [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT CLASS 3CATEGORICAL EXEMPTION IS THE APPROPRIATE ENVIRONMENTAL DOCUMENTATION AND APPROVING CONDITIONAL USE PERMIT NO. 2011-05546 (DEV2011-00005) (1765 WEST CERRITOS AVENUE) WHEREAS, the Planning Commission did receive a verified Petition forConditional Use Permit No. 2011-05546to construct a 60-foot tall flag pole telecommunications facility on an existing school property that exceeds the maximum height allowed by the code for certain real property in the City of Anaheim, County of Orange, State of California shown on Exhibit “A”, attached hereto and incorporated herein by this reference; and WHEREAS, this 39.71-acre property is developed with a high school (Loara High School). The property is located in the Transitional zone and the Anaheim General Plan designates the property for School land uses; and WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim onMay 9, at 5:00 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 proposed conditional use permit to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing with respect to the requestto constructa 60-foot tall flag pole telecommunications facility on an existing school property should be approved for the following reasons: 1.The proposed conditional use permit requestto is properly one for which a conditional use permit is authorized by Anaheim Municipal Code Section 18.38.060.050.0511 (Antennas -Telecommunications).A telecommunications facility designed as flag pole with a height of 60 feet in the Transition (T) zone is properly one for which a conditional use permit is authorized. 2.The height of the telecommunications facility would not adversely affect the adjoining land uses orthe growth and development of the area in which it is proposed to be located because the facilitywould be located approximately 54 feet from Cerritos Avenue, 1,029 feet from Euclid Avenue and 242 feet from the residential buildings to the west. 3.Alternative locations and designs were considered by the applicant; however there were no feasible locations to co-locate antenna facilities. -1-PC2011-*** 4.The traffic generated by the proposed flag pole telecommunication facility will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area because the traffic generated by this use will not exceed the anticipated volumes of trafficon the surrounding streetsand there is adequate parking on-site to accommodate the use. 5.The granting of the conditional use permit under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim because the telecommunications facility is an unmanned facility and would not pose a health or safety risk to the citizens of the City of Anaheim. WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15301, Class 3(Newconstruction or conversion of small structures)as defined in the State CEQA Guidelines, and is therefore, exempt from the requirement to prepare additional environmental documentation. NOW, THEREFORE, BE IT RESOLVED that the Anaheim City Planning Commission does hereby approveConditional Use Permit No. 2011-05546and subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference, which are hereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health, safety and general welfare of the Citizens of the City of Anaheim. Extensions for further time to complete conditions of approval may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. Timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition (s), (ii) the modification complies with the Anaheim Municipal Code and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development. BE IT FURTHER RESOLVED, that this permit is approved without limitations on the hours of operation or the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that approval of thisapplication constitutes approval of the proposed request only to the extent that itcomplies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. -2-PC2011-*** BE IT FURTHER RESOLVED thatthe applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice. Failure to pay all charges shall result in the revocation of the approval of this application. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting ofMay 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day ofMay, 2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** EXHIBIT “B” CONDITIONAL USE PERMIT NO. 2011-05546 (DEV2011-00005) REVIEW SIGNED NO.CONDITIONS OF APPROVALBYOFF BY PRIOR TO ISSUANCE OF A BUILDING PERMIT 1The proposed flag pole telecommunication facility shall be Planning limited to a maximum height ofsixty feet. Said information shall be specifically shown on plans submitted for building permits 2The antennas and equipment cabling shall not be visible to Planning public view. All equipment cabling shall be routed inside of the structure and shall be underground. Said information shall be specifically shown on plans submitted for building permits. Any required relocation of City electrical facilities shall be 3Public at the property owner/developer’s expense. Utilities Electrical GENERAL CONDITONS 4Theproperty shall be developed substantially in accordance Planning with plans and specifications submitted to the City of Anaheim by the applicantand which plans are on file with the Planning Department marked Exhibit No.1 (Site Plan), Exhibit No. 2 (Enlarged Site Plan),Exhibit No. 3and 4(Architectural Elevations)and as conditioned herein. -4-PC2011-*** ßÌÌßÝØÓÛÒÌ ÒÑò í ßÌÌßÝØÓÛÒÌ ÒÑò ì ßÌÌßÝØÓÛÒÌ ÒÑò ë City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí éì éù øû íì÷îéìûù÷ éì éù øû êééù íì÷îéìûù÷ íééù ø÷æ íì÷îéìûù÷ íì÷îéìûù÷ éì éù øû íì÷îéìûù÷ éì éù øû íì÷îéìûù÷ û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ êÍÚ×ÊÈÉÍÎÉìÊÍÌ×ÊÈÃ ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ êÍÚ×ÊÈÉÍÎÉìÊÍÌ×ÊÈÃ [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO.PC2011-*** A RESOLUTION OF THE ANAHEIMPLANNING COMMISSION RECOMMENDING CITY COUNCIL APPROVAL OF DEVELOPMENT AGREEMENT NO. 2010-00005BY AND BETWEEN THE CITY OF ANAHEIM AND RRM PROPERTIES, LTD (TENTATIVE TRACT MAP NO. 17289) WHEREAS, Article 2.5 of Chapter 4 of Division 1 of Title 7 (commencing with Section 65864) of the Government Code of the State of California (hereinafter the "Statute") authorizes a city to enter into a contract which is called a development agreement in order to establish with certainty what regulations will govern the construction of a development; and WHEREAS, the City of Anaheim (hereinafter the "City"), as a charter city, heretofore enacted Ordinance No. 4377 (hereinafter the "Enabling Ordinance")on November 23, 1982, makingthe City subject to the Statute; and WHEREAS, pursuant to subdivision (c) of Section 65865 of the Statute, the City heretofore on November 23, 1982, adopted Resolution No. 82R-565 (hereinafter the "Procedures Resolution") establishing procedures and requirements for the consideration of development agreements upon receipt of an application by the City; and WHEREAS, on May 25, 2004, the Anaheim City Council approved General Plan Amendment No. 2004-00419 setting forth the City’svision for development of the City of Anaheim ("General Plan Amendment"), and certified Final Environmental Impact Report No. 330, adopting Findings of Fact and a Statement of Overriding Considerations, and associated Mitigation Monitoring Plans ("FEIR No. 330"), in conjunction with its consideration and approval of the General Plan Amendment, amendment of the City’s zoning code, and a series of related actions; and WHEREAS, the General Plan sets forth a vision for development of low medium densityland uses within theapproximately 15.7-acre Tentative Tract Map No. 17289; and WHEREAS, on March 30, 2009the Planning Commission approved Reclassification No 2008-00221, Conditional Use Permit No. 2008-05362 and Tentative Tract Map No. 17289 to reclassify the subject property from the Multiple-Family Residential (RM-3) zone to the Single- Family Residential (RS-4) zone and construct 56 single-family residential dwelling units; and, WHEREAS, the Development Agreement pertains to approximately 15.7acres of real property in the City of Anaheim, owned by the Applicant, as more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference (hereinafter the "Property"), which is located inthe Hill and Canyon areaand within the RS-4zone; and WHEREAS, the Applicant desires to develop the propertywithin the Mountain Park residential communitywhich was approvedwith a maximum of 2,500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areas;and -1-PC2011-*** WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on May 9, 2011, at5:00 p.m., notice of saidpublic 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 Development Agreement and to investigate and make findings and recommendations in connection therewith; and WHEREAS, the Applicant has demonstrated that the Project meets the eligibility requirements of the Procedures Resolution to enter into the Development Agreement by showing that, upon completion, the Project will result in the construction of56 residential units and share infrastructure, development and improvement costs with the Mountain Park development which is permitted for upto2,500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areaswithin a period of not more than twenty(20)years; and WHEREAS, said Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of and based upon all of the evidence and reports offered at said hearing, does find and determine that the Development Agreement meets the following standards set forth in the Procedures Resolution: 1.That the Project is consistent with the City’s General Plan in that it is in conformance with the General Plan low-medium density residential land use designationsand with the goals, policies and objectives for the Hill and Canyon areaas set forth in the General Plan. 2.That the Project is compatible with the orderly development of property in the surrounding area in that it is in conformance with and complementsthe Mountain Park Specific Plan,and has been coordinated and designed to be compatible with the adjacent existing planned residential communities. 3.That the Project is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim. 4.That 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. 5.That the Development Agreement is entered into pursuant to and in compliance with its charter powers and the requirements of Section 65867of the Statute, the Enabling Ordinance and the Procedures Resolution. -2-PC2011-*** CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDING:That the Anaheim Planning Commission has reviewed the proposal;and did find and determine pursuant to the provisions of the California Environmental Quality Act (“CEQA”), based upon its independent review and consideration of an Initial Study conducted pursuant to CEQA for the Development Agreement, and the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, and the evidence received at the public hearing, that the previously-approvedMitigatedNegative Declarationisadequate to serve as the required environmental documentation for thisproposaland satisfy all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement. NOW, THEREFORE, BE IT RESOLVED that based upon the aforesaid findings and determinations, the Anaheim Planning Commission does hereby recommend to the City Council the approval of the Development Agreement. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting ofMay 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim Planning Commission held on May 9, 2011, by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this9day of May, 2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** -4-PC2011-*** ßÌÌßÝØÓÛÒÌ ÒÑò í ßÌÌßÝØÓÛÒÌ ÒÑò ì RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Council City of Anaheim c/o City Clerk P.O. Box 3222 Anaheim, California 92805 (Space Above Line For Recorder’s Use) DEVELOPMENT AGREEMENT NO. 2011-000__ BETWEEN THE CITY OF ANAHEIM AND RRM PROPERTIES, LTD. TABLE OF CONTENTS Page SECTION 1.DEFINITIONS ...................................................................................................... 5 1.1Authorizing Ordinance .......................................................................................... 5 1.2CITY ..................................................................................................................... 5 1.3Development Agreement ...................................................................................... 5 1.4Development Agreement Date .............................................................................. 5 1.5Development Agreement Statute .......................................................................... 5 1.6Development Approvals ....................................................................................... 5 1.7Development Fees ................................................................................................. 6 1.8Enabling Ordinance .............................................................................................. 6 1.9Existing Land Use Regulations ............................................................................. 6 1.10Existing Project Development Approvals ............................................................. 6 1.11Mountain Park Specific Plan ................................................................................ 6 1.12Mortgage ............................................................................................................... 6 1.13Mortgagee ............................................................................................................. 6 1.14OWNER ................................................................................................................ 6 1.15Permitted Development ........................................................................................ 6 1.16Procedures Resolution .......................................................................................... 6 1.17Project ................................................................................................................... 7 1.18Property ................................................................................................................. 7 1.19Term ...................................................................................................................... 7 1.20Zoning Code.......................................................................................................... 7 SECTION 2.TERM ................................................................................................................... 7 2.1Duration of Term .................................................................................................. 7 2.2Termination in Event of Final Judgment .............................................................. 7 2.3Automatic Termination upon Completion of Project ........................................... 7 SECTION 3.BINDING COVENANTS .................................................................................... 7 SECTION 4.EFFECT OF AGREEMENT ................................................................................ 7 SECTION 5.PROJECT LAND USES ....................................................................................... 8 SECTION 6.PERMITTED DEVELOPMENT.......................................................................... 8 6.1Permitted Development ........................................................................................ 8 6.2Subdivision Maps; Expiration Dates for Development Approvals ....................... 8 SECTION 7.DENSITY OF PERMITTED BUILDINGS ......................................................... 8 SECTION 8.ENFORCEMENT ................................................................................................. 9 SECTION 9.PUBLIC BENEFITS ............................................................................................. 9 9.1Dedication of Right-of-Way Needed to Provide Access to Reservoir Site ........................................................................................................................ 9 112/023401-0002 -i- 1127143.04 a03/15/11 Page 9.2Contribution to Priority Youth Sports Facility ..................................................... 9 9.3Renewable Energy ................................................................................................ 9 SECTION 10.PUBLIC IMPROVEMENTS AND SERVICES .................................................. 9 SECTION 11.FEES ................................................................................................................... 10 11.1Fees Applicable to the Property .......................................................................... 10 11.2Fees Applicable for Modified Development Approvals ..................................... 11 SECTION 12.COVENANTS, CONDITIONS AND RESTRICTIONS ................................... 11 SECTION 13.NEXUS/REASONABLE RELATIONSHIP CHALLENGES ........................... 11 SECTION 14.FUTURE APPROVALS ..................................................................................... 12 14.1Basis for Denying or Conditionally Granting Future Approvals ........................ 12 14.2Standard of Review ............................................................................................. 12 SECTION 15.AMENDMENT................................................................................................... 12 15.1Initiation of Amendment ..................................................................................... 12 15.2Procedure ............................................................................................................ 12 15.3Consent ............................................................................................................... 12 15.4Amendments ....................................................................................................... 12 15.5Effect of Amendment to Development Agreement ............................................ 13 SECTION 16.NON-CANCELLATION OF RIGHTS .............................................................. 13 SECTION 17.BENEFITS TO CITY ......................................................................................... 13 SECTION 18.BENEFITS TO OWNER .................................................................................... 13 SECTION 19.UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATUTE ..................... 13 SECTION 20.RESERVED AUTHORITY................................................................................ 14 20.1State and Federal Laws and Regulations ............................................................ 14 20.2Model Codes ....................................................................................................... 14 20.3Public Health and Safety ..................................................................................... 14 SECTION 21.CANCELLATION .............................................................................................. 14 21.1Initiation of Cancellation .................................................................................... 14 21.2Procedure ............................................................................................................ 14 21.3Consent of OWNER and CITY .......................................................................... 14 SECTION 22.PERIODIC REVIEW.......................................................................................... 14 22.1Time for Review ................................................................................................. 14 22.2OWNER’s Submission ....................................................................................... 15 22.3Findings............................................................................................................... 15 112/023401-0002 -ii- 1127143.04 a03/15/11 Page 22.4Initiation of Review by City Council .................................................................. 15 SECTION 23.EVENTS OF DEFAULT .................................................................................... 15 23.1Defaults by OWNER .......................................................................................... 15 23.2Specific Performance Remedy ............................................................................ 16 SECTION 24.MODIFICATION OR TERMINATION ............................................................ 16 24.1Notice to OWNER .............................................................................................. 16 24.2Public Hearing .................................................................................................... 16 24.3Decision .............................................................................................................. 16 24.4Standard of Review ............................................................................................. 17 24.5Implementation ................................................................................................... 17 24.6Schedule for Compliance .................................................................................... 17 SECTION 25.ASSIGNMENT ................................................................................................... 17 25.1Right to Assign ................................................................................................... 17 25.2Release upon Transfer ......................................................................................... 17 SECTION 26.NO CONFLICTING ENACTMENTS ............................................................... 18 SECTION 27.GENERAL .......................................................................................................... 18 27.1Force Majeure ..................................................................................................... 18 27.2Construction of Development Agreement .......................................................... 19 27.3Severability ......................................................................................................... 19 27.4Cumulative Remedies ......................................................................................... 19 27.5Hold Harmless Agreement .................................................................................. 19 27.6Cooperation in the Event of Legal Challenge ..................................................... 20 27.7Public Agency Coordination ............................................................................... 20 27.8Initiative Measures .............................................................................................. 20 27.9Attorneys’ Fees ................................................................................................... 21 27.10No Waiver ........................................................................................................... 21 27.11Authority to Execute ........................................................................................... 21 27.12Notice .................................................................................................................. 21 27.12.1To OWNER ................................................................................ 21 27.12.2To CITY ...................................................................................... 22 27.13Captions .............................................................................................................. 22 27.14Consent ............................................................................................................... 22 27.15Further Actions and Instruments ......................................................................... 22 27.16Subsequent Amendment to Authorizing Statute ................................................. 23 27.17Governing Law ................................................................................................... 23 27.18Effect on Title ..................................................................................................... 23 27.19Mortgagee Protection .......................................................................................... 23 27.20Notice of Default to Mortgagee, Right of Mortgagee to Cure ............................ 23 27.21Bankruptcy .......................................................................................................... 23 27.22Disaffirmance ...................................................................................................... 24 112/023401-0002 -iii- 1127143.04 a03/15/11 Page 27.22.1New Development Agreement upon Most Senior Mortgagee’s Request .................................................................. 24 27.22.2New Development Agreement Not Required ............................. 24 27.23No Third Party Beneficiaries .............................................................................. 24 27.24Project as a Private Undertaking ......................................................................... 24 27.25Restrictions ......................................................................................................... 25 27.26Recitals ................................................................................................................ 25 27.27Recording ............................................................................................................ 25 27.28Title Report ......................................................................................................... 25 27.29Entire Agreement ................................................................................................ 25 27.30Successors and Assigns ....................................................................................... 25 27.31OWNER’s Title of Property ............................................................................... 25 27.32Exhibits ............................................................................................................... 25 LIST OF EXHIBITS Exhibit “A” Site Map Exhibit “B” Preliminary Title Report with Legal Description 112/023401-0002 -iv- 1127143.04 a03/15/11 DEVELOPMENT AGREEMENT NO. 2011-000__ BETWEEN THE CITY OF ANAHEIM AND RRM PROPERTIES, LTD. This Development Agreement is entered into this ____ day of __________, 2011, by and between the City of Anaheim, a charter city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California (“CITY”) and RRM PROPERTIES, LTD., a California limited partnership( “OWNER”), pursuant to the authority set forth in Article 2.5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the California Government Code (the “Development Agreement Statute”). RECITALS This Development Agreement is predicated upon the following facts: A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the California Government Code. The Development Agreement Statute authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation in project costs and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; provide assurance to the applicants of development projects: (i) that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval of such projects and provisions of such development agreements, and (ii) encourage private participation in comprehensive planning and reduce the private and public economic costs of development. B. These Recitals refer to and utilize certain capitalized terms which are defined in this Development Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. C. OWNER represents that it owns in fee approximately 15.70 acres of real property located south of the Riverside (SR-91) Freeway and east of the Eastern Transportation Corridor (SR-241) in the City of Anaheim, County of Orange (“County”), State of California, and more particularly shown and described on Exhibit “A” attached hereto and made a part hereof by this reference (the “Property”). The Property is adjacent to and bounded on two sides by approximately 1,149 acres of real property owned by The Irvine Land Company LLC and The Irvine Company LLC (collectively, “TIC”) commonly known as the “Mountain Park Specific Plan Area” and referred to herein as the “TIC Property.” At the request of OWNER and California State Parks (“State Parks”), the easement for road purposes east of the Tract Boundary (Instrument No. 19960068732 recorded in the Official Records of the County of Orange, 112/023401-0002 1127143.04 a03/15/11 California) was vacated and quitclaimed by the City to the State Parks. The only access between the Property and the nearest public road, Gypsum Canyon Road, is across the TIC Property. D. The Property is designated Low-Medium Density Residential (0-18 DU/AC) in the Land Use Element of CITY’s General Plan. On March 30, 2009, CITY’s Planning Commission adopted the following resolutions: (i) Resolution No. PC2009-043 approving a mitigated negative declaration and recommending to the City Council of CITY that it approve Reclassification No. 2008-00221 to rezone the Property from RM-3 (Multiple Family, Residential) to RS-4 (SC) (Single-Family Residential; Scenic Corridor Overlay); (ii) Resolution No. PC2009-044, approving Conditional Permit No. 2008-05362; and (iii) Resolution No. PC2009-045 conditionally approving Tentative Tract No. 17289 and authorizing subdivision of the Property into fifty-six (56) single-family residential lots. On June 9, 2009, the City Council of CITY adopted its Ordinance No. 6147 approving Reclassification No. 2008-00221, amending the Zoning Map referred to in Title 18 of CITY’s Municipal Code, and rezoning the Property from RM-3 to RS-4. Finally, on May 4, 2010, the City Council of CITY adopted its Ordinance No. 6170 amending Subsection .020 of Section 18.18.060 of Chapter 18.18 of Title 18 of CITY’s Municipal Code relating to building height exceptions to increase the maximum height of any residential building constructed on the Property from twenty-five (25) feet to thirty (30) feet, as set forth therein. Development of the Property in accordance with Planning Commission Resolution Nos. PC 2009-043, PC2009-044, and PC2009-045 and City Council Ordinances 6147 and 6170 (collectively, the “Existing Project Development Approvals”),as the same may be amended from time to time in accordance with and subject to the terms and conditions set forth in this Development Agreement, is referred herein to as the “Project.” E. On October 26, 2010, the City Council of CITY adopted its Ordinance No. 6186 approving Development Agreement No. 2010-00002 by and between the CITY and TIC (the “TIC Development Agreement”) for development of a partially gated residential community with a maximum of 2,500 residential units, public facilities, private and public infrastructure improvements, a fire station, trails, trail staging area, concession store, public school site, private and public parks, and open space areas on the TIC Property (collectively, the “Mountain Park Project”). The TIC Development Agreement has a term of up to twenty (20) years, as set forth therein. F. OWNER desires to develop the Project on the Property in accordance with the Existing Project Development Approvals and this Development Agreement. Since, however, (i) OWNER’s ability to access and develop the Property is dependent upon TIC’s development of the portion of the Mountain Park Project situated between the Property and Gypsum Canyon Road and (ii) TIC may choose to not develop that portion of the Mountain Park Project for up to 20 years (or longer), as permitted under the TIC Development Agreement; accordingly, OWNER desires to enter into this Development Agreement to assure that the Project may be developed in accordance with the Existing Project Development Approvals, which may terminate or expire before OWNER has the opportunity to develop the Project. G. On or about January 4, 2010, OWNER and TIC entered into a Cooperative Agreement pursuant to which (i) TIC covenanted to provide access to OWNER for development of the Project on the Property at such time that TIC develops the adjacent portion of the TIC Property and (ii) OWNER covenanted to include the Property in one or more financing districts 112/023401-0002 -2- 1127143.04 a03/15/11 to fund infrastructure improvements needed to accommodate development of the Mountain Park Project and to pay OWNER’s fair share of other infrastructure improvements needed for the Mountain Park Project that are not included in financing districts, all as set forth therein. H. CITY desires to accomplish the goals and objectives set forth in CITY’s General Plan and the objectives for the Mountain Park Specific Plan as set forth in subsection 18.112.020 of the Anaheim Municipal Code and finds that the Project will help to accomplish said goals and objectives. I. OWNER anticipates the submission of detailed construction plans and other documentation required by CITY in order for OWNER to obtain its building permits. J. In order to avoid any misunderstandings or disputes which may arise from time to time between OWNER and CITY concerning the proposed development of the Project and to assure each party of the intention of the other as to the processing of any land use entitlements which now or hereafter may be required for such development, the parties believe it is desirable to set forth their intentions and understandings in this Development Agreement. In order for both CITY and OWNER to achieve their respective objectives, it is imperative that each be as certain as possible that OWNER will develop and that CITY will permit OWNER to develop the Project as required and approved by CITY within the time periods provided in this Development Agreement, except as otherwise indicated herein. K. The City Council of CITY adopted its Ordinance No. 4377 on November 23, 1982, which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865 of the Development Agreement Statute, the City Council of CITY adopted its Resolution No. 82R-565 (the “Procedures Resolution”) on November 23, 1982. The Procedures Resolution establishes procedures and requirements for the consideration of development agreements upon receipt of an application. L. On December 7, 2010, as required by Section 1.0 of the Procedures Resolution, OWNER submitted to CITY’s Planning Department an application for approval of a development agreement (the “Application”). The Application included a proposed development agreement (the “Proposed Development Agreement”). M. On _________, 2011, as required by Section 65867 of the Development Agreement Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of CITY’s Planning Commission’s intention to consider a recommendation to the City Council regarding adoption of a development agreement. N. On _________, 2011, as required by Section 65867 of the Development Agreement Statute and Section 2.2 of the Procedures Resolution, CITY’s Planning Commission held a public hearing on the Application. O. On that date, CITY’s Planning Commission, after considering the requirements of the California Environmental Quality Act (“CEQA”), including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, found and determined and recommended that the City Council find that the mitigated negative declaration previously approved by the Planning Commission through its Resolution No. PC2009-043 is adequate to 112/023401-0002 -3- 1127143.04 a03/15/11 serve as the required environmental documentation for this Development Agreement and related actions and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement. P. CITY’s Planning Commission further found that the Development Agreement meets the following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the proposed Project: (i) is consistent with CITY’s existing General Plan, (ii) is compatible with the uses authorized in and the regulations prescribed for the applicable zoning district, (iii) is compatible with the orderly development of property in the surrounding area and (iv) is not otherwise detrimental to the health, safety, and general welfare of the citizens of CITY. Based upon the aforesaid findings, CITY’s Planning Commission recommended that the City Council approve the Application and this Development Agreement pursuant to Resolution No. PC ___________. Q. On _____________, 2011, as required by Section 65867 of the Development Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be given of the City Council’s intention to consider adoption of a development agreement. R. On _____________, 2011, as required by Section 65867 of the Development Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on the Application. S. On that date, the City Council, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, did find and determine that the previously approved mitigated negative declaration is adequate to serve as the required environmental documentation for this Development Agreement and related actions and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement. T. On _____________, 2011, the City Council found and determined that this Development Agreement: (i) is consistent with CITY’s existing General Plan; (ii) is not otherwise detrimental to the health, safety, and general welfare of the citizens of CITY; (iii) is entered into pursuant to and constitutes a present exercise of CITY’s police power; and (iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution. U. In preparing and adopting the General Plan and in granting the Existing Project Development Approvals, CITY considered the health, safety, and general welfare of the residents of CITY. Without limiting the generality of the foregoing, in preparing and adopting the General Plan and in granting the Existing Project Development Approvals, the City Council and Planning Commission carefully considered and determined the projected needs (taking into consideration the planned development of the Project and all other areas within CITY) for water service, sewer service, storm drains, electrical facilities, traffic/circulation infrastructure, police and fire services, paramedic and similar improvements, facilities, and services within the Mountain Park Specific Plan and the Property, and the appropriateness of the density and 112/023401-0002 -4- 1127143.04 a03/15/11 intensity of the development comprising the Project and the needs of CITY and surrounding areas for other infrastructure. V. On _____________, 2011, the City Council adopted the Authorizing Ordinance authorizing the execution of this Development Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures Resolution, and CITY’s inherent powers as a charter city, and pursuant to the mutual promises and covenants herein contained, the parties hereto agree as follows: SECTION 1.DEFINITIONS The following words and phrases are used as defined terms throughout this Development Agreement, and each defined term shall have the meaning set forth below. 1.1Authorizing Ordinance. The “Authorizing Ordinance” means Ordinance No. _____ approving this Development Agreement. 1.2CITY. “CITY” means the City of Anaheim, a charter city and municipal corporation, duly organized and existing under its charter and the Constitution and laws of the State of California. 1.3Development Agreement. “Development Agreement” means this Development Agreement and any subsequent amendments to this Development Agreement which have been made in compliance with the provisions of this Development Agreement, the Development Agreement Statute, the Enabling Ordinance, and the Procedures Resolution. 1.4Development Agreement Date. The “Development Agreement Date” means the later of (i) the date of recordation in the office of the County Recorder of this Development Agreement, or a memorandum thereof, or (ii) the effective date of the Authorizing Ordinance. 1.5Development Agreement Statute. The “Development Agreement Statute” means Sections 65864 through 65869.5 of the California Government Code as it exists on the Development Agreement Date. 1.6Development Approvals. “Development Approvals” means all site specific plans, maps, permits, and other entitlements to use of every kind and nature which are approved or granted by CITY in connection with development of the Property, including, but not limited to: site plans, tentative and final subdivision maps, vesting tentative maps, variances, conditional use permits, and grading, building, and other similar permits. To the extent any of such site specific plans, maps, permits, and other entitlements to use are amended from time to time, “Development Approvals” shall include, if OWNER and CITY agree in writing, such matters as so amended. If this Development Agreement is required by law to be amended in order for “Development Approvals” to include any such amendments, “Development Approvals” shall not include such amendments unless and until this Development Agreement is so amended. 112/023401-0002 -5- 1127143.04 a03/15/11 1.7Development Fees. “Development Fees” shall have the meaning ascribed in Section 10.1 of this Development Agreement. 1.8Enabling Ordinance. The “Enabling Ordinance” means Ordinance No. 4377 enacted by the City Council of CITY on November 23, 1982. 1.9Existing Land Use Regulations. “Existing Land Use Regulations” mean the ordinances, resolutions, and regulations adopted or approved by CITY and in effect on the Development Agreement Date, including the adopting ordinances and regulations that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Property, including, but not limited to, the General Plan, the Zoning Code, the Existing Project Development Approvals, and all other ordinances, resolutions and regulations of CITY establishing subdivision standards, park regulations, impact or development fees and building and improvement standards, but only to the extent the Zoning Ordinance and such other regulations are not inconsistent with this Development Agreement. Existing Land Use Regulations do not include non-land use regulations, which include taxes. 1.10Existing Project Development Approvals. “Existing Project Development Approvals” means those CITY permits and approvals listed in Recital D of this Agreement. 1.11Mountain Park Specific Plan. “Mountain Park Specific Plan” means the Mountain Park Specific Plan No. 90-4 approved by the City Council on August 23, 2005, and amended by the City Council of CITY on May 9, 2006, and February 13, 2007. 1.12Mortgage. “Mortgage” means a mortgage, deed of trust, sale and leaseback arrangement, or other transaction in which the Property, or a portion thereof or an interest therein, is pledged as security. 1.13Mortgagee. “Mortgagee” means the holder of the beneficial interest under a Mortgage, or the owner of the Property, or interest therein, under a Mortgage. 1.14OWNER. “OWNER” means RRM Properties, Ltd., a California limited partnership, and any person or entity with which or into which RRM Properties, Ltd., may merge, and any person or entity who may acquire substantially all of the assets of RRM Properties, Ltd., and any person or entity who receives any of the rights or obligations of under this Development Agreement in accordance with the provisions of Section 25 of this Development Agreement. 1.15Permitted Development. “Permitted Development” includes all buildings and related improvements and open space areas as identified in Section 6 of this Development Agreement. 1.16Procedures Resolution. The “Procedures Resolution” is Resolution No. 82R-565 adopted by the City Council of CITY pursuant to Section 65865 of the Development Agreement Statute. 112/023401-0002 -6- 1127143.04 a03/15/11 1.17Project. The “Project” means the development project contemplated with respect to the Property in accordance with the Existing Project Development Approvals, consisting of fifty-six (56) single-family residential units and related improvements and open space areas, as such development project is further defined, enhanced, or modified pursuant to the provisions of this Development Agreement and the Existing Land Use Regulations. 1.18Property. The “Property” means that certain real property referred to in Recital C and shown and described on Exhibit “A” to this Development Agreement. 1.19Term. “Term” is defined in Section 2 of this Development Agreement. 1.20Zoning Code. “Zoning Code” refers to Title 18 of the Anaheim Municipal Code. SECTION 2.TERM 2.1Duration of Term. The term (“Term”) of this Development Agreement 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 twenty (20) years thereafter, terminating at the end of the day on the twentieth anniversary of the Development Agreement Date, subject to the periodic review and modification or termination provisions defined in Section 22 and Section 24, respectively, of this Development Agreement. 2.2Termination in Event of Final Judgment. This Development Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to CITY as a result of any lawsuit filed against CITY to set aside, withdraw, or abrogate the approval of the City Council of this Development Agreement or if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby. 2.3Automatic Termination upon Completion of Project. If not already terminated by reason of any other provision in this Development Agreement, or for any other reason, this Development Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Development Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by CITY of all dedications and improvements as required by the development of the Project. SECTION 3.BINDING COVENANTS The provisions of this Development Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. SECTION 4.EFFECT OF AGREEMENT As a material part of the consideration of this Development Agreement, unless otherwise provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to 112/023401-0002 -7- 1127143.04 a03/15/11 development of the Project. In connection with all subsequent discretionary actions which CITY takes or has the right to take under this Development Agreement relating to the Project, including any review, approval, renewal, conditional approval, or denial, CITY, shall exercise its discretion or take action in a manner which complies and is consistent with the Existing Land Use Regulations (as same may be modified in accordance with this Development Agreement) and such other standards, terms, and conditions expressly contained in this Development Agreement. CITY shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Development Agreement, including any necessary site plan, tentative map, vesting tentative map, final map, and any grading, construction, or other permits filed by OWNER in accordance with the Development Approvals. SECTION 5.PROJECT LAND USES The Property shall be used for such uses as may be permitted by the Development Approvals and the Existing Land Use Regulations. The Term, the density and intensity of use, the maximum height and size of proposed buildings and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions for reservation or dedication of land for public purposes shall be those set forth in the Development Approvals, the Existing Land Use Regulations, and this Development Agreement pursuant to Section 65865.2 of the Development Agreement Statute. SECTION 6.PERMITTED DEVELOPMENT 6.1Permitted Development. The Permitted Development shall be as follows: Development of fifty-six (56) single-family residential and related improvements and open space areas as set forth in the Existing Project Development Approvals. 6.2Subdivision Maps; Expiration Dates for Development Approvals. OWNER may file and process new and existing tentative maps or vesting tentative maps consistent with the California Subdivision Map Act and Anaheim Municipal Code Chapters 17.08 and 17.09. Pursuant to Government Code Section 66452.6(a), the term of any tentative map or vesting tentative map approved for the Property shall automatically be extended for the Term of this Development Agreement. In addition, and notwithstanding any other provision of CITY’s Municipal Code or the conditions of approval currently in effect with respect to the Existing Project Development Approvals, to the extent any of the other Development Approvals, including without limitation Conditional Use Permit No. 2008-05342, would expire at an earlier date in the absence of this Development Agreement, the term of such Development Approvals likewise shall be extended until the expiration of the Term of this Development Agreement. SECTION 7.DENSITY OF PERMITTED BUILDINGS The Permitted Buildings shall not encroach into applicable building setbacks and shall not exceed the maximum heights provided for in the Existing Land Use Regulations. 112/023401-0002 -8- 1127143.04 a03/15/11 SECTION 8.ENFORCEMENT Unless this Development Agreement is terminated or cancelled pursuant to the provisions of this Development Agreement, this Development Agreement or any amendment hereto, shall be enforceable by any party hereto notwithstanding any change hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or building ordinance adopted by CITY which alters or amends the rules, regulations, or policies of Development of the Project as provided in this Development Agreement pursuant to Section 65865.4 of the Development Agreement Statute; provided, however, that the limitations of this Section shall not apply to changes mandated by State or Federal laws or other permissible changes or new regulations as more particularly set forth in Section 20 of this Development Agreement. SECTION 9.PUBLIC BENEFITS 9.1Dedication of Right-of-Way Needed to Provide Access to Reservoir Site. Pursuant to Condition 20 of the conditions of approval for Tentative Tract No. 17289, prior to recordation of the final tract map for said tract OWNER shall irrevocably offer for dedication to CITY an easement or easements as needed by CITY to provide access for construction, operation, and maintenance of the 1,320-foot zone reservoir south of Development Area 7, as specified in Section IV of the Mountain Park Specific Plan and for all water service mains and service laterals, all on an instrument or instruments acceptable to City as to form and content. 9.2Contribution to Priority Youth Sports Facility. OWNER agrees to contribute $500 per dwelling unit upon issuance of each building permit for residential development to improve Priority youth sports facilities, either as specified in the 2004 Final Report by the Mayor’s Task Force for Youth Sports Facilities or as mutually agreed by CITY and OWNER. 9.3Renewable Energy. Pursuant to Condition 62 of the conditions of approval for Conditional Use Permit No. 2008-0532, OWNER shall, to the extent feasible and to the satisfaction of CITY, implement the energy efficiency measures, water conservation and efficiency measures and solid waste measures referred to therein, including without limitation on-site renewable energy systems. SECTION 10.PUBLIC IMPROVEMENTS AND SERVICES In addition to performing any other obligations heretofore imposed as conditions of the Existing Project Development Approvals or as set forth in Section 9 of this Development Agreement, as material consideration for CITY’s entering into this Development Agreement OWNER shall perform its obligations set forth in the Cooperative Agreement between OWNER and TIC with respect to including the Property in financing districts and paying to TIC OWNER’s pro rata share of the Mountain Park Specific Plan infrastructure costs not funded through financing districts, all as provided for in the Cooperative Agreement, as the same may be modified or amended from time to time by OWNER and TIC. It is understood that said infrastructure improvements are located off the Property, will be constructed and installed by TIC and/or CITY, and OWNER shall have no responsibility therefor excepting only the contribution of OWNER’s share of funding. OWNER shall be responsible for ensuring said infrastructure improvements located off the Property are sized to accommodate the demands of 112/023401-0002 -9- 1127143.04 a03/15/11 the Project. As of the Development Agreement Date, said improvements include the following (to the extent expressly provided for in the Cooperative Agreement): (a)Extension of Weir Canyon Road; (b)Relocation and widening of Santa Ana Canyon Road; (c)Extension of Gypsum Canyon Road; (d)Widening of Gypsum Canyon Road; (e)Construction of future public street segment of Mountain Park Drive from Weir Canyon Road; (f)The access roads leading from Gypsum Canyon Road to the Property boundary; (g)Traffic signalization improvements at the Santa Ana Canyon Road/Gypsum Canyon Road and Weir Canyon Road/Mountain Park Drive intersections and at the entry to the school site along Mountain Park Drive; (h)A fire station; (i)A community center; (j)Riding and hiking trail and public park improvements; (k)Water, sewer, and public storm drainage improvements; (l)Electrical systems; and (m)The water reservoir referred to in Section 9.1 of this Development Agreement and other water reservoirs and other water pump stations. The parties agree that all of the aforedescribed infrastructure improvements will provide substantial public benefits that justify CITY’s entering into this Development Agreement. SECTION 11.FEES 11.1Fees Applicable to the Property. During the Term of this Development Agreement, the fees applicable to the Property shall be the Development Fees as defined in this Section. The term “Development Fees” shall mean all existing impact and development fees applicable to the Project on the Development Agreement Date charged by CITY for the purpose of defraying all or a portion of the cost of public facilities related to development of the Project, subject to any increase in the amount of the Development Fees applicable to the Project on the date of issuance of building permits. The parties acknowledge that the following fees, taxes, and charges do not constitute Development Fees and that nothing in this Development Agreement is intended or shall be 112/023401-0002 -10- 1127143.04 a03/15/11 construed to release OWNER from the obligation to pay these fees, taxes, and charges, including increases, if and when they become due: (a)CITY’s normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover CITY’s costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; and (b)Fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether CITY collects those fees and charges; and (c)Community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the property development tax payable under the Anaheim Municipal Code; and (d)Any fees and charges set forth in Rule 15 of the Water Utilities Rates, Rules and Regulations; and (e)Any fees, costs, charges, mitigations, and indemnities associated with the annexation of the Property into the service area of the Orange County Water District. 11.2Fees Applicable for Modified Development Approvals. Notwithstanding Section 11.1 of this Development Agreement, if and to the extent that the Development Approvals applicable to the Property are amended after the Development Agreement Date and OWNER is authorized under the modified Development Approvals to develop any additional density or intensity of use beyond what is allowed as of the Development Agreement Date, CITY shall retain the right to require OWNER to pay all CITY fees for such additional density or intensity of use to the extent such fees would be applicable in the absence of this Development Agreement. SECTION 12.COVENANTS, CONDITIONS AND RESTRICTIONS In consideration for CITY entering into this Development Agreement and other consideration set forth in this Development Agreement, OWNER agrees to record unsubordinated covenants, conditions, and restrictions applicable to the Property in a form and content satisfactory to the Planning Director, City Engineer, and the City Attorney. SECTION 13.NEXUS/REASONABLE RELATIONSHIP CHALLENGES OWNER consents to, and waives any right it may have now or in the future to challenge the legal validity of the conditions, requirements, policies, or programs required by Existing Land Use Regulations or this Development Agreement, including, without limitation, any claim that they constitute an abuse of the police power, violate substantive due process, deny equal 112/023401-0002 -11- 1127143.04 a03/15/11 protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax. SECTION 14.FUTURE APPROVALS 14.1Basis for Denying or Conditionally Granting Future Approvals. Before OWNER can begin grading on the Property or other development of the Property, OWNER must secure several additional permits and/or approvals from CITY. The parties agree that to the extent said Development Approvals are ministerial in nature, CITY shall not, through the enactment or enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold such approvals as a means of blocking construction or of imposing conditions on the Project which were not imposed during an earlier approval period unless CITY has been ordered to do so by a court of competent jurisdiction. Notwithstanding the previous sentence, CITY and OWNER will use their best efforts to ensure each other that all applications for and approvals of grading permits, building permits or other developmental approvals necessary for OWNER to develop the Project in accordance with this Development Agreement are sought and processed in a timely manner. 14.2Standard of Review. The rules, regulations, and policies that apply to any additional Development Approvals which OWNER must secure prior to the Development of the Property shall be the Existing Land Use Regulations, as defined in this Development Agreement. SECTION 15.AMENDMENT 15.1Initiation of Amendment. Either party may propose an amendment to this Development Agreement. 15.2Procedure. Except as set forth in Section 15.4 of this Development Agreement, the procedure for proposing and adopting an amendment to this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3, and 5 of the Procedures Resolution. 15.3Consent. Except as provided elsewhere within this Development Agreement, any amendment to this Development Agreement shall require the consent of both parties. No amendment of this Development Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each party hereto. 15.4Amendments. Subject to the foregoing provisions of this Section, the parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Development Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development of the Project and with respect to those items covered in general terms under this Development Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to further the intended purposes of this Development Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments as specified in the Development Approvals. 112/023401-0002 -12- 1127143.04 a03/15/11 15.5Effect of Amendment to Development Agreement. The parties agree that except as expressly set forth in any such amendment, an amendment to this Development Agreement will not alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of either party under this Development Agreement. SECTION 16.NON-CANCELLATION OF RIGHTS Subject to defeasance pursuant to Sections 22, 23, or 24 of this Development Agreement, the Development Approvals as provided for in this Development Agreement shall be final and the rights once granted thereby shall be vested in the Property upon recordation of this Development Agreement. SECTION 17.BENEFITS TO CITY The direct and indirect benefits CITY (including, without limitation, the existing and future anticipated residents of CITY) expects to receive pursuant to this Development Agreement include, but are not limited to, the following: (a) the participation of OWNER in TIC’s funding, construction/ installation, and dedication to the public of certain of the vitally needed on-site and area-wide public improvements and facilities pursuant to the TIC Development Agreement for the Mountain Park Project and assurances that OWNER’s Project will be developed as set forth in this Development Agreement; and (b) the considerations set forth in Sections 9, 10, and 11 of this Development Agreement. SECTION 18.BENEFITS TO OWNER OWNER has expended and will continue to expend large amounts of time and money on the planning and infrastructure construction for the Project. OWNER asserts that OWNER would not make any additional expenditures without this Development Agreement and that any additional expenditures which OWNER makes after the Development Agreement Date will be made in reliance upon this Development Agreement. The benefit to OWNER under this Development Agreement consists of the assurance that OWNER will preserve the right to develop the Property as planned and as set forth in this Development Agreement. The parties acknowledge that the public benefits to be provided by OWNER to CITY pursuant to this Development Agreement are in consideration for and reliance upon assurances that the Property can be developed in accordance with this Development Agreement. SECTION 19.UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATUTE The mutual undertakings and assurances described above and provided for in this Development Agreement are for the benefit of CITY and OWNER and promote the comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development which was contemplated and promoted by the Development Agreement Statute. CITY agrees that it will not take any actions which are intended to circumvent this Development Agreement; provided, however, that any action of the electorate shall not be deemed an action for purposes of this section. 112/023401-0002 -13- 1127143.04 a03/15/11 SECTION 20.RESERVED AUTHORITY 20.1State and Federal Laws and Regulations. In the event that the State or Federal laws or regulations enacted after this Development Agreement has been entered into prevent or preclude compliance with one or more provisions of the Development Agreement, such provisions of the Development Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Development Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. Notwithstanding the foregoing, CITY shall not adopt or undertake any rule, regulation, or policy which is inconsistent with this Development Agreement until CITY makes a finding that such rule, regulation, or policy is reasonably necessary to comply with such State and Federal laws or regulations. 20.2Model Codes. This Development Agreement shall not prevent CITY from applying new rules, regulations, and policies contained in model codes, including, but not limited to, the Anaheim Building Code as adopted in Title 15, Section 15.02. 20.3Public Health and Safety. This Development Agreement shall not prevent CITY from adopting new rules, regulations, and policies, including amendments or modifications to model codes described in Section 20.2 of this Development Agreement which directly result from findings by CITY that failure to adopt such rules, regulations, or policies would result in a condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing, CITY shall not adopt any such rules, regulations, or policies which prevent or preclude compliance with one or more provisions of this Development Agreement until CITY makes a finding that such rules, regulations, or policies are reasonably necessary to correct or avoid such injurious or detrimental condition. SECTION 21.CANCELLATION 21.1Initiation of Cancellation. Either party may propose cancellation of this Development Agreement. 21.2Procedure. The procedure for proposing a cancellation of and canceling this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3, and 5 of the Procedures Resolution and Section 65868 of the California Government Code. 21.3Consent of OWNER and CITY. Any cancellation of this Development Agreement shall require the mutual consent of OWNER and CITY. SECTION 22.PERIODIC REVIEW 22.1Time for Review. CITY may, at least every twelve (12) months after the Development Agreement Date, review the extent of good faith compliance by OWNER with the terms of this Development Agreement. Such periodic review shall determine compliance with the terms of this Development Agreement pursuant to California Government Code Section 65865.1 and other successor laws and regulations. 112/023401-0002 -14- 1127143.04 a03/15/11 22.2OWNER’s Submission. Each year during the Term of this Development Agreement, not less than forty-five (45) days nor more than sixty (60) days prior to the anniversary of the Development Agreement Date, OWNER shall submit evidence to the City Council of its good faith compliance with the terms and conditions of this Development Agreement. OWNER shall notify the City Council in writing that such evidence is being submitted to CITY pursuant to the requirements of Section 6.2 of the Procedures Resolution. OWNER shall pay to CITY a reasonable processing fee in an amount as CITY may reasonably establish from time to time on each occasion that OWNER submits its evidence for a periodic review. 22.3Findings. Within forty-five (45) days after the submission of OWNER’s evidence, the City Council shall determine, on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, OWNER shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non- compliance take more than sixty (60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period, OWNER fails to cure such noncompliance or is not making reasonable good faith progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 24 of this Development Agreement. 22.4Initiation of Review by City Council. In addition to the periodic review set forth in this Development Agreement, the City Council may at any time initiate a review of this Development Agreement upon the giving of written notice thereof to OWNER. Within thirty (30) days following receipt of such notice, OWNER shall submit evidence to the City Council of OWNER’s good faith compliance with this Development Agreement and such review and determination shall proceed in the manner as otherwise provided in this Development Agreement. SECTION 23.EVENTS OF DEFAULT 23.1Defaults by OWNER. Within forty-five (45) days after the submission of OWNER’s evidence, the City Council shall determine on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, OWNER shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non-compliance take more than sixty (60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period OWNER fails to cure such non-compliance or is not making reasonable progress towards such end, then the City Council may, at its discretion, proceed to 112/023401-0002 -15- 1127143.04 a03/15/11 modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 24 of this Development Agreement. 23.2Specific Performance Remedy. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Development Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property and provide for other benefits. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Development Agreement and will be investing even more significant time in implementing the Project in reliance upon the terms of this Development Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts. For the above reasons, CITY and OWNER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Development Agreement. Therefore, specific performance of this Development Agreement is the only remedy which would compensate OWNER if CITY fails to carry out its obligations under this Development Agreement, and CITY hereby agrees that OWNER shall be entitled to specific performance in the event of a default by CITY hereunder. CITY and OWNER acknowledge that, if OWNER fails to carry out its obligations under this Development Agreement, CITY shall have the right to refuse to issue any permits or other approvals which OWNER would otherwise have been entitled to pursuant to this Development Agreement. If CITY issues a permit or other approval pursuant to this Development Agreement in reliance upon a specified condition being satisfied by OWNER in the future, and if OWNER then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole purpose of causing OWNER to satisfy such condition. CITY’s right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause OWNER to otherwise proceed with the Development of the Project in any manner. SECTION 24.MODIFICATION OR TERMINATION If pursuant to Section 24.1 of this Development Agreement, CITY elects to modify or terminate this Development Agreement or establish a revised time schedule for compliance as herein provided, then CITY shall proceed as set forth in this Section. 24.1Notice to OWNER. CITY shall give notice to OWNER of the City Council’s intention to proceed to modify or terminate this Development Agreement or establish a time schedule for compliance within ten (10) days of making CITY’s findings. 24.2Public Hearing. The City Council shall set and give notice of a public hearing on modification or termination or a time schedule for compliance to be held within forty-five (45) days after the City Council gives notice to OWNER. 24.3Decision. The City Council shall announce its findings and decisions on whether this Development Agreement is to be terminated, how this Development Agreement is to be modified, or the provisions of the Development Agreement with which OWNER must comply and a time schedule therefor not more than ten (10) days following completion of the public hearing. 112/023401-0002 -16- 1127143.04 a03/15/11 24.4Standard of Review. Any determination by CITY to terminate this Development Agreement because OWNER has not complied in good faith with the terms of this Development Agreement must be based upon a finding by the City Council, based on the preponderance of evidence, that OWNER is in default and has not cured that default in the timeframe permitted by Sections 22 and 23 of this Development Agreement, as applicable. 24.5Implementation. Amending or terminating this Development Agreement shall be accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons which, in the opinion of CITY, make the amendment or termination of this Development Agreement necessary. Not later then ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded to OWNER. This Development Agreement shall be terminated or this Development Agreement as modified shall become effective on the effective date of the ordinance terminating or modifying this Development Agreement. 24.6Schedule for Compliance. Setting a reasonable time schedule for compliance with this Development Agreement may be accomplished by CITY enacting a resolution. The resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days following adoption of the resolution, one copy thereof shall be forwarded to OWNER. Compliance with any time schedule so established as an alternative to amendment or termination shall be subject to periodic review as provided in this Development Agreement and lack of good faith compliance by OWNER with the time schedule shall be basis for termination or modification of this Development Agreement. SECTION 25.ASSIGNMENT 25.1Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign, or transfer this Development Agreement, and any and all of its rights, duties, and obligations hereunder to any person, partnership, joint venture, firm, or corporation at any time during the term of this Development Agreement, provided that any such sale, mortgage, hypothecation, assignment, or transfer must be pursuant to a sale, assignment, or other transfer of the interest of OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage, hypothecation, assignment, or transfer, (a) OWNER shall notify CITY of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between OWNER and such transferee shall provide that either OWNER or the transferee or both shall be liable for the performance of all obligations of OWNER pursuant to this Development Agreement and the Development Approvals. Such transferee and/or OWNER shall notify CITY in writing which entity shall be liable for the performance of such obligations, and upon the express written assumption of any or all of the obligations of OWNER under this Development Agreement by such assignee, transferee, or purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to perform said obligations under this Development Agreement with respect to the Property or portion thereof so transferred, except to the extent OWNER is not in default under the terms of this Development Agreement. 25.2Release upon Transfer. It is understood and agreed by the parties that the Property may be subdivided following the Development Agreement Date. One or more of such 112/023401-0002 -17- 1127143.04 a03/15/11 subdivided parcels may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Development Agreement and upon recordation of the Final Map. Effective upon such sale, mortgage, hypothecation, assignment, or transfer, the obligations of OWNER shall become several and not joint. Upon the sale, transfer, or assignment of OWNER’s rights and interests under this Development Agreement as permitted pursuant to the Section 25.1 of this Development Agreement, OWNER shall be released from its obligations under this Development Agreement with respect to the Property, or portion thereof so transferred, provided that (a) OWNER is not then in default under this Development Agreement, (b) OWNER has provided to CITY the notice of such transfer specified in Section 25.1 of this Development Agreement, (c) the transferee executes and delivers to CITY a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all the obligations of OWNER under this Development Agreement and the Development Approvals with respect to the Property, or portion thereof, so transferred and (d) the transferee provides CITY with security equivalent to any security provided by OWNER to secure performance of its obligations under the Development Approvals. Non-compliance by any such transferee with the terms and conditions of this Development Agreement shall not be deemed a default hereunder or grounds for termination hereof or constitute cause for CITY to initiate enforcement action against other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. Upon completion of any phase of development of the Project as determined by CITY, CITY may release that completed phase from any further obligations under this Development Agreement. The provisions of this Section shall be self-executing and shall not require the execution or recordation of any further document or instrument. Any and all successors, assigns, and transferees of OWNER shall have all of the same rights, benefits, and obligations of OWNER as used in this Development Agreement and the term “OWNER” as used in this Development Agreement shall refer to any such successors, assigns, and transferees unless expressly provided herein to the contrary. SECTION 26.NO CONFLICTING ENACTMENTS By entering into this Development Agreement and relying thereupon, OWNER is obtaining vested rights to proceed with the Project in accordance with the terms and conditions of this Development Agreement, and in accordance with, and to the extent of, the Development Approvals. OWNER shall have the vested right to develop the Property at the rate, timing, and sequencing that OWNER deems appropriate within the exercise of OWNER’s sole subjective business judgment. By entering into this Development Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety, and general welfare. CITY therefore agrees that except as provided in Section 20 of this Development Agreement, neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure which relates to the rate, timing, or sequencing of the Development or construction of all or any part of the Project and which is inconsistent or in conflict with this Development Agreement. SECTION 27.GENERAL 27.1Force Majeure. The Term of this Development Agreement and the time within which OWNER shall be required to perform any act under this Development Agreement shall be 112/023401-0002 -18- 1127143.04 a03/15/11 extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably by strikes, lock-outs, Acts of God, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the reasonable control of OWNER. 27.2Construction of Development Agreement. The language in all parts of this Development Agreement shall in all cases be construed as a whole and in accordance with its fair meaning. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience only and shall not be considered or referred to in resolving questions of constructions. This Development Agreement shall be governed by the laws of the State of California. The parties understand and agree that this Development Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY’s police powers. In this regard, the parties understand and agree that this Development Agreement shall not be deemed to constitute the surrender or abnegation of CITY’s governmental powers over the Property. 27.3Severability. If any provision of this Development Agreement shall be adjudged to be invalid, void, or unenforceable, such provision shall in no way affect, impair, or invalidate any other provision hereof, unless such judgment affects a material part of this Development Agreement, and the parties hereby agree that they would have entered into the remaining portions of this Development Agreement not adjudged to be invalid, void, or illegal. In the event that all or any portion of this Development Agreement is found to be unenforceable, this Development Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event they shall take all steps necessary to comply with such public hearings and/or notice requirements as may be necessary in order to make valid this Development Agreement or that portion which is found to be unenforceable. Notwithstanding any other provisions of this Development Agreement, in the event that any material provision of this Development Agreement is found to be unenforceable, void, or voidable, OWNER or CITY may terminate this Development Agreement in accordance with the provisions of the Development Agreement Statute and the Procedures Resolution. 27.4Cumulative Remedies. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation, including suits for declaratory relief, specific performance, relief in the nature of mandamus, and actions for damages. All of the remedies described above shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy. 27.5Hold Harmless Agreement. OWNER and CITY hereby mutually agree to, and shall hold each other, each other’s elective and appointive councils, boards, commissions, officers, partners, agents, representatives, and employees harmless from any liability for damage or claims for damage for personal injury, including death, and from claims for property damage which may arise from the activities of the other or the other’s contractors, subcontractors, agents, or employees which relate to the Project whether such activities be by OWNER or CITY, or by 112/023401-0002 -19- 1127143.04 a03/15/11 any of OWNER’s or CITY’s contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for OWNER or any of OWNER’s or CITY’s contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the other’s elective and appointive councils, boards, commissioners, officers, partners, agents, representatives, and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project. 27.6Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Development Agreement and/or the Development Approvals, the parties hereby agree to cooperate fully with each other in defending said action and the validity of each provision of this Development Agreement, however, OWNER shall be liable for all legal expenses and costs incurred in defending any such action. OWNER shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys’ fees awarded against CITY or OWNER, or both, resulting from any such legal action. OWNER shall be entitled to any award of attorneys’ fees arising out of any such legal action. 27.7Public Agency Coordination. CITY and OWNER shall cooperate and use their respective best efforts in coordinating the implementation of the Development Approvals with other public agencies, if any, having jurisdiction over the Property or the Project. 27.8Initiative Measures. Both CITY and OWNER intend that this Development Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, referendum, statute, ordinance, or other limitation (whether relating to the rate, timing, or sequencing of the Development or construction of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative, or final), building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY, or portions of CITY, and which Agreement shall apply to the Project to the extent such initiative, measure, moratorium, referendum, statute, ordinance, or other limitation is inconsistent or in conflict with this Development Agreement. Should an initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be enacted by the citizens of CITY which would preclude construction of all or any part of the Project, and to the extent such initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of this Development Agreement, OWNER shall have no recourse against CITY pursuant to the Development Agreement, but shall retain all other rights, claims, and causes of action under this Development Agreement not so invalidated and any and all other rights, claims, and causes of action as law or in equity which OWNER may have independent of this Development Agreement with respect to the project. The foregoing shall not be deemed to limit OWNER’s right to appeal any such determination that such initiative, measure, referendum, statute, ordinance, or other limitation invalidates or prevails over all or any part of this Development Agreement. CITY agrees to cooperate with OWNER in all reasonable manners in order to keep this Development Agreement in full force and effect, provided OWNER shall reimburse CITY for its out-of-pocket expenses incurred directly in connection with such cooperation and CITY shall not be obligated to institute a lawsuit or other court proceedings in this connection. 112/023401-0002 -20- 1127143.04 a03/15/11 27.9Attorneys’ Fees. In the event of any dispute between the parties involving the covenants or conditions contained in this Development Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorneys’ fees, and costs. 27.10No Waiver. No delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any of the provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be performed by the other party shall not be construed as a waiver of any succeeding breach of non- performance of the same or other covenants and conditions hereof. 27.11Authority to Execute. The person executing this Development Agreement on behalf of OWNER warrants and represents that he/she has the authority to execute this Development Agreement on behalf of his/her partnership and represents that he/she has the authority to bind OWNER to the performance of OWNER’s obligations hereunder. 27.12Notice. 27.12.1To OWNER. Any notice required or permitted to be given by CITY to OWNER under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing and delivered personally to an officer of OWNER or mailed with postage thereon fully prepaid, registered or certified mail, return receipt requested, addressed; to OWNER as follows: RRM Properties, Ltd. c/o Watermarke Properties, Inc. 410 North Main Street Corona, CA 92880 Attn: Jeff Troesh, President and RRM Properties, Ltd. c/o Robertson’s Ready Mix Concrete, Inc. 200 S. Main Street Corona, CA 92882 Attn: Jon Troesh, President With copies to: Rutan & Tucker LLP th 611 Anton Blvd., 14 Floor Costa Mesa, CA 92626 Attn: Jeffrey M. Oderman, Esq. or such changed address as OWNER shall designate in writing to CITY. 112/023401-0002 -21- 1127143.04 a03/15/11 27.12.2To CITY. Any notice required or permitted to be given to CITY under or pursuant to this Development Agreement shall be made and given in writing, if by mail addressed to: CityCouncil City of Anaheim c/o City Clerk P.O. Box 3222 Anaheim, California 92803 With copies to: CityManager City of Anaheim P.O. Box 3222 Anaheim, California 92803 CityAttorney City of Anaheim P.O. Box 3222 Anaheim, California 92803 or such changed address as CITY shall designate in writing to OWNER. Alternatively, notices to CITY may also be personally delivered to the City Clerk, at the Anaheim Civic Center, 200 S. Anaheim Blvd., Anaheim, California, together with copies marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in care of the City Clerk at the above address with copies likewise so mailed to the City Manager and the City Attorney, respectively and also in care of the City Clerk at the same address. The provisions of this Section shall be deemed permissive only and shall not detract from the validity of any notice given in a manner which would be legally effective in the absence of this Section. 27.13Captions. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Development Agreement. 27.14Consent. Any consent required by the parties in carrying out the terms of this Development Agreement shall not unreasonably be withheld. 27.15Further Actions and Instruments. Each of the parties shall cooperate with and reasonably provide to the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the 112/023401-0002 -22- 1127143.04 a03/15/11 provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement. 27.16Subsequent Amendment to Authorizing Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject to Section 20.1 of this Development Agreement, to the extent that subsequent amendments to the California Government Code would affect the provisions of this Development Agreement, such amendments shall not be applicable to this Development Agreement unless necessary for this Development Agreement to be enforceable or unless this Development Agreement is modified pursuant to the provisions set forth in this Development Agreement and California Government Code Section 65868 as in effect on the Development Agreement Date. 27.17Governing Law. This Development Agreement, including, without limitation, its existence, validity, construction, and operation, and the rights of each of the parties shall be determined in accordance with the laws of the State of California. 27.18Effect on Title. OWNER and CITY agree that this Development Agreement shall not continue an encumbrance against any portion of the Property as to which this Development Agreement has terminated. 27.19Mortgagee Protection. Entering into or a breach of this Development Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on any portion of the Property made in good faith and for value, unless otherwise required by law. No Mortgagee shall have an obligation or duty under this Development Agreement to perform OWNER’s obligations, or to guarantee such performance prior to any foreclosure or deed in lieu thereof. 27.20Notice of Default to Mortgagee, Right of Mortgagee to Cure. If the City Clerk timely receives notice from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Development Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the receipt of such notice from CITY, to cure or remedy, or to commence to cure or remedy the default unless a further extension of time to cure is granted in writing by CITY. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver, or otherwise, and shall thereafter remedy or cure the default or non- compliance within thirty (30) days after obtaining possession. If any such default or non- compliance cannot, with diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or non-compliance if such Mortgagee commences cure during such thirty (30) day period and thereafter diligently pursues and completes such cure. 27.21Bankruptcy. Notwithstanding the foregoing provisions of Section 27.20 of this Development Agreement, if any Mortgagee is prohibited from commencing or pursuing and prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or 112/023401-0002 -23- 1127143.04 a03/15/11 injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition. 27.22Disaffirmance. 27.22.1New Development Agreement upon Most Senior Mortgagee’s Request. CITY agrees that in the event of termination of this Development Agreement by reason of any default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator, or trustee for OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new Development Agreement for the Project with the most senior Mortgagee requesting such new agreement, for the remainder of the Term, effective as of the date of such termination, upon the terms, provisions, covenants, and agreements as herein contained to the extent and subject to the law then in effect, and subject to the rights, if any, of any parties then in possession of any part of the Property, provided: (a)The Mortgagee shall make written request upon CITY for the new Development Agreement for the Project within thirty (30) days after the date of termination; (b)The Mortgagee shall pay to CITY at the time of the execution and delivery of the new Development Agreement for the Project expenses, including reasonable attorneys’ fees, to which CITY shall have been subjected by reason of OWNER’s default; and (c)The Mortgagee shall perform and observe all covenants herein contained on OWNER’s part to be performed, and shall further remedy any other conditions which OWNER under the terminated agreement was obligated to perform under its terms, to the extent the same are curable or may be performed by the Mortgagee. 27.22.2New Development Agreement Not Required. Nothing herein contained shall require any Mortgagee to enter into a new Development Agreement pursuant to Section 27.22.1 of this Development Agreement, nor to cure any default of OWNER referred to above. 27.23No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of CITY, OWNER, and their successors and assigns. No other person shall have right of action based upon any provision in this Development Agreement. 27.24Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Development Agreement. No partnership, joint venture or other association of any kind is formed by this Development Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such private property. 112/023401-0002 -24- 1127143.04 a03/15/11 27.25Restrictions. OWNER shall place in any agreements to sell or convey any interest in the Property, or any portion thereof, provisions making the terms of this Development Agreement binding on any successors in interest of OWNER and express provision for OWNER or CITY, acting separately or jointly, to enforce the provisions of this Development Agreement and to recover attorneys’ fees and costs for such enforcement. 27.26Recitals. The recitals in this Development Agreement constitute part of this Development Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Development Agreement. 27.27Recording. The City Clerk shall cause a copy of this Development Agreement to be executed by CITY and recorded in the Official Records of Orange County no later than ten (10) days after CITY approves this Development Agreement. 27.28Title Report. CITY is required to sign this Development Agreement only after OWNER has provided CITY with a satisfactory preliminary title report evidencing and showing OWNER’s legal and equitable ownership interest in the Property, current within six (6) months, unencumbered except for the exceptions (the “Permitted Exceptions”) set in the preliminary title report for the Property dated _______, 201_, attached hereto as Exhibit “B” (the “Preliminary Title Report”). Any instrument of monetary encumbrance such as a deed of trust or a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the Development Agreement Date, shall contain language expressly subordinating such instruments of monetary encumbrance to the provisions of this Development Agreement. OWNER shall present evidence, satisfactory to CITY, of OWNER’s legal title to Property, subject only to the Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the time of recordation of this Development Agreement, or a memorandum thereof. 27.29Entire Agreement. This Development Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Development Agreement, and this Development Agreement supersedes all previous negotiations, discussions, and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof. 27.30Successors and Assigns. The burdens of the Development Agreement shall be binding upon and the benefits of the Development Agreement inure to all successors in interest and assigns of the parties to the Development Agreement. 27.31OWNER’s Title of Property. Neither party hereto shall be bound by any provision of this Development Agreement unless and until OWNER shall record this Development Agreement or a memorandum thereof, in the office of the County Recorder of the County sufficient to cause this Development Agreement and the obligations contained herein to attach to and encumber OWNER’s fee title to Property. 27.32Exhibits. All exhibits, including attachments thereto, are incorporated in this Development Agreement in their entirety by this reference. [ALL SIGNATURES APPEAR ON THE FOLLOWING PAGE] 112/023401-0002 -25- 1127143.04 a03/15/11 IN WITNESS WHEREOF, CITY and OWNER have executed this Development Agreement as of the date and year first above written. “CITY” CITY OF ANAHEIM, a California municipal corporation By: Name: Title: Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney “OWNER” RRM PROPERTIES, LTD., a California limited partnership By: Robertson’s Management, LLC, a Delaware limited liability company, its General Partner By: Name: Title: By: __________________________________ Name: ________________________________ Title: _________________________________ 112/023401-0002 -26- 1127143.04 a03/15/11 EXHIBIT “A” SITE MAP 112/023401-0002 EXHIBIT “A” 1127143.04 a03/15/11 EXHIBIT “B” PRELIMINARY TITLE REPORT WITH LEGAL DESCRIPTION 112/023401-0002 EXHIBIT “B” 1127143.04 a03/15/11 City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí ó óîøçéèêóûð ùõ ó æûùûîè óîøçéèêóûð ùõùõ ê÷èûóðê÷èûóð ùõ ê÷èûóð ûÎÛÔ×ÓÏìÐÛÂÛ ê×Ø×Æ×ÐÍÌÏ×ÎÈûÊ×Û ó ùõóîøçéèêóûð ùõ ùõ ê÷èûóð ê÷èûóð ê÷èûóð ûÎÛÔ×ÓÏìÐÛÂÛ ê×Ø×Æ×ÐÍÌÏ×ÎÈûÊ×Û ùõ ó ø÷æ óîøçéèêóûð ê÷èûóð êï êï ìûêñ ìûðï ìðûù÷ å÷éè ûìèé ûìèé êï øç øç êï ìûïìûé ìûïìûéðûî÷ ûìûêèï÷îèé ûìûêèï÷îèé øç ó øç ó óîøçéèêóûð óîøçéèêóûð ûÎÛÔ×ÓÏìÐÛÂÛ ê×Ø×Æ×ÐÍÌÏ×ÎÈûÊ×Û ó ó óîøçéèêóûð óîøçéèêóûð êï ôûåûóóûî ó êïó ûìèé éöê õ÷óðóîõóîøçéèêóûð øç ûìûêèï÷îèé ó øç ó óîøçéèêóûð óîøçéèêóûð è è ðíûêû éöê ÷ð÷ï÷îèûêãéùôííð ó öûóêïíîèìêóæûè÷ éùôííð û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ å×ÉÈðÓÎÙÍÐÎûÆ×ÎÇ× ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ å×ÉÈðÓÎÙÍÐÎûÆ×ÎÇ× [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT A CLASS 1 CATEGORICAL EXEMPTIONIS THE APPROPRIATE ENVIRONMENTAL DOCUMENTATIONANDAPPROVING CONDITIONAL USE PERMIT NO. 2011-05558 (DEV2011-00042) (1600WESTLINCOLN AVENUE) WHEREAS, the Anaheim City Planning Commission did receive a verified Petition for Conditional Use Permit No. 2011-05558to permit a recreational vehicle storage facility in conjunction with anexisting automobile sales dealershipfor certain real property situated in the City of Anaheim, County of Orange, State of California, shown on Exhibit “A”, attached hereto and incorporated herein by this reference. WHEREAS, this property is developed with achurchlocated in the C-G(General Commercial)zoneandthe Anaheim General Plan designates the property for General Commercialland uses;and WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of AnaheimonMay 9,2011, at 5:00 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 proposed conditional use permit and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing, does find and determine the following facts: 1.The request to permit a recreational vehicle storage facility in conjunction with an existing automobile sales dealershipis properly one for which a conditional use permit is authorized under Code Section Nos. 18.66.040.020.0202(Approval Authority)of the Anaheim Municipal Code. 2.Theproposed recreational vehicle storage facility will not adversely affect the adjoining land uses and the growth and development of the area in which it is located because it will be located within the interior and rear of the propertyand will be screened from the adjacent uses. 3.The size and shape of the site for the use is adequate to allow the full development of the proposed use in a manner not detrimental to the particular area or to the health and safety of the citizens of Anaheimbecausethisstoragefacilityis on a development property and no future development or expansion is proposed. 4.The traffic generated by the proposed use will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the areabecausethe storage facility will general minimal traffic. -1-PC2011-*** 5.Thegranting of the conditional use permit under the conditions imposed will not bedetrimental to the health and safety of the citizens of the City of Anaheim as the existing land use will continue to becompatible with the surrounding areaand isnot a health or safety risk to the citizens of the City of Anaheim. WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15301, Class 1(Existing Facilities) as defined in the State CEQA Guidelines, and istherefore, exempt from the requirement to prepare additional environmental documentation. NOW, THEREFORE, BE IT RESOLVED that the Anaheim City Planning Commission does hereby approve Conditional Use Permit No. 2011-05558subject to the conditions of approval described in Exhibit “B” attached hereto and incorporated by this reference, which are hereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the health, safety and general welfare of the Citizens of the City of Anaheim. Extensions for further time to complete conditions of approval may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. Timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition (s), (ii) the modification complies with the Anaheim Municipal Code and (iii)the applicant has demonstrated significant progress toward establishment of the use or approved development. BE IT FURTHER RESOLVED, that this Conditional Use Permitis approved without limitations on the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that approval of this application constitutes approval of the proposed request only to the extent that it complies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application. -2-PC2011-*** THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of May 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina,Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day of May2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION -3-PC2011-*** -4-PC2011-*** EXHIBIT“B” CONDITIONAL USE PERMIT NO. 2011-05558 (DEV2011-00042) REVIEW SIGNED BY OFF BY NO.CONDITIONS OF APPROVAL PRIOR TO ISSUANCE OF BUILDING PERMITSOR COMMENCEMENT OF USE, WHICHEVER OCCURS FIRST 1The barbed wire must be removed from all fencing Planning on the property.Services 2All chain link fencing shall be interwoven with PVC Planning slats or other suitable material to provide screening Services of the storage uses. The use of wooden slats shall not be allowed. A screening plan shall be submitted to the Planning Services Division for review and approval prior to installation. 3Landscaping shall be planted in front of the Planning relocated chain link fence along Loara Street at the Services southeastend of the property. An automatic irrigation system shall also be installed in this planter area prior to any planting. A landscapeand irrigation plan shall be submitted to the Planning Services Division for review and approvalprior to installation. 4Condition Nos. 1 through 3, above, shall be Planning completed prior to the establishment of this use.Services GENERAL 5The subject property shall be developed substantially Planning in accordance with plans submitted to the City of Anaheim by the applicantand which plans are on file with the Planning Department marked Exhibit Nos. 1 (Site Plan)and as conditioned herein. -5-PC2011-*** íÒÑò ßÌÌßÝØÓÛÒÌ ßÌÌßÝØÓÛÒÌ ÒÑò ì City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net ûèèûùôï÷îèîí ùõ çîø÷ê ùíîéèêçùèóíî éìéù øû ùûîãíî êïéù íööóù÷ ùûîãíîæóððûõ÷ ù÷îè÷ê ûìûêèï÷îèé øç éìéù éìéù øû ø÷æ éìéù ùóî÷ïû ê÷èûóð øû ùóèã íùöùø èô÷ûè÷ê éìéù øû ê÷ðóõóíçéçé÷ ùõéù ê÷èûóð ûÐÌÔÛîÍÊÈÔ×ÛÉÈûÊ×Û éìéù ê×Ø×Æ×ÐÍÌÏ×ÎÈûÊ×Û øû ùûîãíî íööóù÷ ù÷îè÷ê éìéù øû ùõéù úûîñ ê÷èûóð éìéù éìéù éìéù ùõéù øû øû øû æûùûîè óîøçéèêóûð ê÷èûóð é÷êæóù÷éèûèóíî ùõéù ùõéù ú÷éèå÷éè÷êî ê÷éèûçêûîè ûîûô÷óïôóððé û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éûîèûûîûùûîãíîêø ÷ÛÉÈðÛìÛÐÏÛûÆ×ÎÇ× ûèèûùôï÷îèîí û×ÊÓÛÐìÔÍÈÍ ûððìêíì÷êèó÷éûê÷óîèô÷éù÷îóùùíêêóøíêéùíæ÷êðûãâíî÷ ïÛÃ ûìî éÇÚÒ×ÙÈìÊÍÌ×ÊÈÃ ø÷æ éûîèûûîûùûîãíîêø ÷ÛÉÈðÛìÛÐÏÛûÆ×ÎÇ× [DRAFT]ATTACHMENT NO. 2 RESOLUTION NO. PC2011-*** A RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION DETERMINING THAT ACLASS 1 CATEGORICAL EXEMPTION IS THE APPROPRIATE ENVIRONMENTAL DOCUMENTATION AND AMENDINGCONDITIONAL USE PERMIT NO. 3881 (DEV2010-00123) (5645EAST LA PALMA AVENUE#170) WHEREAS, onDecember 9, 1996, the Anaheim City Planning Commission ("Planning Commission"),by its Resolution No. PC96-124,approvedConditional Use Permit No. 3881,in part, to permit a 1,163 sq. ft. expansion (outdoor seating) and on-premises sale and consumption of alcoholic beverages in an existing 4,390 sq, ft, restaurant (for a total of 5,553 sq. ft.) with waivers of minimum landscaped setback and minimum number of parking spacesfor that certain real property located at 5645 East La Palma Avenue, Unit #170, in the City of Anaheim, County of Orange, State of California, as more particularly shown on Exhibit "A" attached hereto and incorporated herein by this reference; and WHEREAS, the Planning Commission did receive a verified Petition for an amendment to Conditional Use Permit No. 3881to delete Condition No. 6of Resolution No. PC96-124which reads as follows: "6. Thatthere should be a maximum of one hundred eighteen (118) seats (both indoors and outdoors) at any time." WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on May 9, 2011, at 5:00 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 proposed amendment to conditional use permit and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing,does find and determine the following facts: 1.The proposed request to delete Condition No. 6 of Resolution No. PC96-124in the Northeast Area Specific Plan, Commercial Area (Development Area 5 -Scenic Corridor Overlay) (SP94-1, DA5) (SC) zone is properly one for which a conditional use permit is authorized by Anaheim Municipal Code Section18.120.100.050.0522(Restaurants). 2.The proposed amendment to theconditional use permit to delete a condition of approval, as conditioned herein, would not adversely affect the adjoining land uses and the growth and development of the area in which it is proposed to be located because the demand for parking will not exceed the parking spaces provided for this requestas identified in the parking study prepared for the amendment to Conditional Use Permit No. 3253, now pending. 3.The size and shape of the site for the use is adequate to allow the full development of the existingrestaurant in a manner not detrimental to the particular area or to the health and safety because theexisting restaurant useislocated within an existingcommercial retail center and is surrounded by compatible commercial uses. 4.The traffic generated by the restaurant will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area because the majority of traffic generated by this use will occur after the highest peak afternoon hours on the adjacent highways. 5.The granting of the conditional use permit and the variance under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim as the restaurant iscompatible with the surrounding area because the use is integrated with other uses on the property and is not a health or safety risk to the citizens of the City of Anaheim. WHEREAS, the proposed project falls within the definition of Categorical Exemptions, Section 15301, Class 1 (Existing Facilities)as defined in the State CEQA Guidelines, and is therefore, exempt from the requirement to prepare additional environmental documentation. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission for the reasons hereinabove stated does hereby approve the amendment toConditional Use Permit No. 3881to delete Condition No.6 of Resolution PC96-124. BE IT FURTHER RESOLVED, that amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that approval of thisapplication constitutes approval of the proposed request only to the extent that itcomplies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. BE IT FURTHER RESOLVED that,except as expressly amended herein, the provisions of Resolution No. PC96-124, approving Conditional Use Permit No. 3881, shall remain infull force and effect. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice. Failure to pay all charges shall result in the revocation of the approval of this application. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of May 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day ofMay, 2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION [DRAFT]ATTACHMENT NO. 3 RESOLUTION NO. PC2011-*** A RESOLUTION OFTHE ANAHEIM CITY PLANNING COMMISSION DETERMINING THATACLASS 1 CATEGORICAL EXEMPTION IS THE APPROPRIATE ENVIRONMENTAL DOCUMENTATION AND AMENDINGCONDITIONAL USE PERMIT NO. 3253 AND VARIANCE NO. 2011-04854 (DEV2010-00123) (5645-5675EAST LA PALMA AVENUE) WHEREAS, on September 11, 1990, the Anaheim City Council("City Council"), by its Resolution No. 90R-353,approvedConditional Use Permit No. 3253 to permit a 30-unit commercial retail center (including 14,000 square feet of semi-enclosed fast food restaurants) and a freestanding semi-enclosed restaurant with sales of alcoholic beverages for on-premises consumption with waivers of minimum number of parking spaces, minimum structural setback, and prohibited roof-mounted equipmentfor that certain real property located at 5645 -5675 La Palma Avenuein the City of Anaheim, County of Orange, State of California, asmore particularly shown on Exhibit "A"attached hereto and incorporated herein by this reference; and WHEREAS, on June 1, 1994, the Anaheim City Planning Commission ("Planning Commission"), by itsResolution No. PC94-65,didamend certain conditions of approval of Resolution No. 90R-353pertaining to Conditional Use Permit No. 3253; and WHEREAS, on November 27, 1995, the Planning Commission, by itsResolution No. PC95-160,did further amend the conditions of approval of Resolution 90R-353 pertaining to Conditional Use Permit No. 3253; and WHEREAS, on December 9, 1996, the Planning Commission, by itsResolution No. PC96-123,did further amend the conditions of approval of Resolution 90R-353pertaining to Conditional Use Permit No. 3253,by amending Condition No. 37 and adding new Condition No. 38to read as follows: "38. That this amendment to Conditional Use Permit No. 3253 (Readvertised) is granted subject to the approval of, and compliance with, all conditions of approval for Conditional Use Permit No. 3881, now pending. Further, that the increase to the maximum area of restaurant uses (one thousand one hundred sixty three[1,163] sq.ft. shall be specific to the proposed outdoor dining area at 5645 East La Palma, #170 (Foscari’s Italian Cuisine); and that the subject business shall be limited to a maximum of one hundred eighteen (118) seats (both interior and exterior)." WHEREAS, on November 18, 1997, the City Council,by its Resolution No. 97R- 224,did further amend the conditions of approval of Resolution No. 90R-353pertaining to Conditional Use Permit No. 3253, by further amendingCondition No. 37 to read as follows: 37. Thetotal area of restaurant uses shall not exceed twenty six thousand forty (26,040) square feet and shall be limited to the following: Juice BarFast FoodFast FoodRestaurantsRestaurants (Spacerestaurantsrestaurantswith tablewith #135)withwithserviceoutdoor 1010 customer11 customerseating Customerseats seats orlessseats ormore orless 1,300sq. ft total1,612 sq.ft.total4,442sq. ft. total5,779sq. ft. total12,907sq. ft. total Required Required Required Required parking: 5.5 parking: 5.5 parking:16parking: 8 spaces Required spaces per 1,000 spaces per 1,000 spaces per 1,000 per 1,000 sq. ft.parking: 8 spaces sq. ft.sq. ft.sq. ft.per 1,000 sq. ft. WHEREAS, the Planning Commission (hereinafter referred to as "Planning Commission") did receive a verified Petition for an amendment to Conditional Use Permit No. 3253and Variance No. 2011-04854, as described below; and WHEREAS, the applicant requestsan amendment to Conditional Use Permit No. 3253 to delete Condition No. 37and amend Condition No. 38 of Resolution No. 90R-353as shown in Exhibit "B" attached hereto and incorporated herein by this reference, to permit the expansion of thesquare footagefor restaurant uses with less parking than required by Code; and WHEREAS, the subject property is located in the Northeast Area Specific Plan, Commercial Area (Development Area 5 -Scenic Corridor Overlay) (SP94-1, DA5) (SC) zone, and the Anaheim General Plan designates this property for General Commercial land uses; and WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on May 9, 2011, at 5:00 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 proposed amendment to conditional use permit and variance and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing,does find and determine the following facts: 1.The proposed request to expand the permitted square footage for restaurant uses with less parking provided than required by Codein the Northeast Area Specific Plan, Commercial Area (Development Area 5 -Scenic Corridor Overlay) (SP94-1, DA5) (SC) zone is properly one for which a conditional use permit is authorized by Anaheim Municipal Code Section18.120.100.050.0510(Commercial Retail Centers). 2.The proposed conditional use permit to expand the permitted square footage for restaurant uses, as conditioned herein, would not adversely affect the adjoining land uses and the growth and development of the area in which it is proposed to be located because the demand for parking will not exceed the parking spaces provided as identified in the parking study for this request; 3.The size and shape of the site for the use is adequate to allow the full development of the proposed restaurant and retail usesin a manner not detrimental to the particular area or to the health and safety because theproposed restaurants and retail useswill be located within an existingcommercial building and is surrounded by compatible commercial uses. 4.The traffic generated by the proposed restaurant and retail uses will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area because the majority of traffic generated by this use will occur after thehighest peak afternoon hours on the adjacent highways. 5.The granting of the conditional use permit and the variance under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim as the proposed restaurant and retail useswill be compatible with the surrounding area because the use is integrated with other uses on the property and is not a health or safety risk to the citizens of the City of Anaheim. WHEREAS, the Planning Commission does further find and determine that the request for a variance to permit less parking than required by Code in conjunction with a request to expand the permitted square footage for restaurant usesshould be approved for the following reasons: SECTION NO. 18.42.040.010Minimum number of parking spaces. (479spaces required for the entire commercial center;316spaces proposed). 1.The requested variance is hereby approvedbased upon the findings and conclusions contained in a parking demand study prepared by Pirzadeh and Associates, Inc. dated March 31, 2011, to determine the number of parking spaces necessary for the proposed commercial retail center.The study concludes that the existing number of parking spaces was sufficient as 303spaces would be needed for all existing and proposed uses, including the new restaurant square footageand that this will not cause fewer off-street parking spaces to be provided for the proposed use than the number of such spaces necessary. 2.The variance will notwill not increase thedemand and competition for parking spaces upon the public streets in the immediate vicinity of the proposed usebecauseall parking will becontained on the subject property. 3.The variance will not increase the demand and competition for parking spaces upon adjacent private property in the immediate vicinity of the proposed use becauseall parking will becontained on the subject property. 4.The variance will not increase traffic congestion within the off-street parking areas or lots provided for the proposed use because the project does not propose new ingress or egress points and is designed to allow adequate on-site circulation. 5.The variance will not impede vehicular ingress to or egress from adjacent properties upon the public streets in the immediate vicinity of the proposed usebecause the project does not propose new ingress or egress points and is designed to allow adequate on-site circulation and therefore will not impede vehicular ingress to or egress from adjacent properties upon the public streets in the immediate vicinity of the commercial retail center. WHEREAS, the proposed project falls within the definition of Categorical Exemptions,Section 15301, Class 1 (Existing Facilities)as defined in the State CEQA Guidelines, and is therefore, exempt from the requirement to prepare additional environmental documentation. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission for the reasons hereinabove stated does hereby approve the amendment toConditional Use Permit No. 3253to delete Condition No. 37and amend Condition No. 38 of Resolution No. 90R-353 and grant Variance No. 2011-04854subject to the conditions of approval of Resolution No. 90R-353, as previously amended, and as further amended herein. Extensions for further time to complete conditions of approval may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. Timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition (s), (ii) the modification complies with the Anaheim Municipal Code and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development. BE IT FURTHER RESOLVED, that this permit is approved without limitations on the hours of operation or the duration of the use. Amendments, modifications and revocations of this permit may be processed in accordance with Chapters 18.60.190 (Amendment to Permit Approval) and 18.60.200 (City-Initiated Revocation or Modification of Permits) of the Anaheim Municipal Code. BE IT FURTHER RESOLVED that the Anaheim City Planning Commission does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that approval of thisapplication constitutes approval of the proposed request only to the extent that itcomplies with the Anaheim Municipal Zoning Code and any other applicable City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. BE IT FURTHER RESOLVED that,except as expressly amended herein, the provisions of Resolution No. 90R-353, approving Conditional Use Permit No. 3253, shall remain if full force and effect. BE IT FURTHER RESOLVEDthat this resolution is subject to the approval of the amendment to Conditional Use Permit No. 3881 to delete Condition No. 6 of Resolution No. PC96-124, now pending. BE IT FURTHER RESOLVED that the applicant is responsible for paying all charges related to the processing of this discretionary case application within 15 days of the issuance of the final invoice. Failure to pay all charges shall result in the revocation of the approval of this application. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of May 9, 2011. CHAIRMAN, ANAHEIM CITY PLANNING COMMISSION ATTEST: SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Grace Medina, Senior Secretary of the Anaheim City Planning Commission, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning Commission heldonMay 9, 2011,by the following vote of the members thereof: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSENT:COMMISSIONERS: th IN WITNESS WHEREOF, I have hereunto set my hand this 9day ofMay, 2011. SENIOR SECRETARY, ANAHEIM CITY PLANNING COMMISSION EXHIBIT “B” CONDITIONAL USE PERMIT NO. 3253 AND VARIANCE NO. 2011-04854 (DEV2010-00123) REVIEW SIGNED NO.CONDITIONS OF APPROVALBYOFF BY GENERAL CONDITIONS 37Deleted.Planning 38Thisproperty shall be developed substantially in accordance Planning with the plans, technical studiesand specifications submitted to the City of Anaheim by the applicantand as conditioned herein, which includethe Site Plan dated May 9, 2011 (Exhibit No.1)and the corresponding Parking Study dated March 31, 2011.Said plans and studies are on file in the Planning Department. ßÌÌßÝØÓÛÒÌ ÒÑò ì ßÌÌßÝØÓÛÒÌ ÒÑò ë Effect of Imperial Highway Bridge Construction on Imperial Promenade Shopping Center-Photo Timeline March 7, 2008 Figure 1: View of Imperial Highway from Imperial Promenade looking towards Orangethorpe indicating Imperial Promenade was at grade with Imperial Highway prior to construction of bridge. Figure 2: View of Imperial Highway from Imperial Promenade facing Orangethorpe. Caltrans begins creating change in grade at the back corner of Imperial Promenade. Figure 3: View of Imperial Highway from Imperial Promenade. View looking across Imperial Highway towards Canyon Village Shopping Center on the corner of La Palma & Imperial Highway. Figure 4:View of Imperial Highway from Imperial Promenade indicating property at grade with Imperial Highway at this point in bridge construction. View looking across Imperial Highwayat Canyon Village Shopping Center. Figure 5: View of Imperial Highway from Imperial Promenade facing La Palma indicating property at grade with Imperial Highway. Post Construction of Imperial Highway Overpass April 28, 2010 Figure 6: View of Imperial Highway overpass from Imperial Promenade Figure 7: Front area of Imperial Promenade has lost most visibility due to Imperial Highway overpass. Figure 8: Portion of Imperial Promenade that has lost all visibility due to Imperial Highway bridge construction. Figure 9: Portion of Imperial Promenade that has lost all visibility due to Imperial Highway bridge construction. Figure 10: View of Imperial Promenade from across Imperial Highway. ßÌÌßÝØÓÛÒÌ ÒÑò ê Proposed Sign Location Parking Structure 100 120135155 123125130140145150 105 5645 E. La Palma 115 110 160 197 5655 E. La Palma 165 195 198199 180 167 185 170 5675 E. La Palma City of Anaheim PLANNING DEPARTMENT There is no new correspondence regarding this item. 200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139 Fax: (714) 765-5280 www.anaheim.net