PC 2016/06/13
City of Anaheim
Planning Commission
Agenda
Monday, June 13, 2016
Council Chamber, City Hall 200 South Anaheim Boulevard
Anaheim, California
• Chairman: Michelle Lieberman
• Chairman Pro-Tempore: Mitchell Caldwell
• Commissioners: Paul Bostwick, Bill Dalati, Grant Henninger,
Victoria Ramirez, John Seymour
• Call To Order - 5:00 p.m.
• Pledge Of Allegiance
• Workshop – Beach Boulevard Specific Plan
• Public Comments
• 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 and Building
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/planning on
Thursday, June 9, 2016, 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 and Building 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 e-mail address: planningcommission@anaheim.net
06-13-2016 Page 2 of 5
APPEAL OF PLANNING COMMISSION ACTIONS
Any action taken by the Planning Commission this date regarding Reclassifications,
Conditional Use Permits, Variances, Public Convenience or Necessity Determinations, Tentative Tract and Parcel Maps will be final 10 calendar 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 at the earliest possible date. You will be notified by
the City Clerk of said hearing.
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.
Anaheim Planning 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.
06-13-2016 Page 3 of 5
Public Hearing Items
ITEM NO. 2 ADDENDUM TO SUPPLEMENTAL EIR NO. 340
DEVELOPMENT AGREEMENT NO. 2016-00002
CONDITIONAL USE PERMIT NO. 2016-05859
FINAL SITE PLAN NO. 2016-00002 (DEV2015-00132)
Location: 1030 West Katella Avenue
Request: To construct a 634-room, 8-story hotel with
42,000 square feet of meeting space and 31,179 square feet of restaurant and retail space; to establish a zero
setback along the east side of the project, adjacent to the
Anaheim Convention Center; and, a request to adopt a
development agreement between the City of Anaheim and
FJS, Inc. for the proposed hotel project.
Environmental Determination: The Planning Commission
will consider if an Addendum to the previously-certified
Supplemental Environmental Impact Report No. 340 (SEIR
340) is the appropriate environmental document for this project and that none of the conditions set forth in Sections
15162 or 15163 of the State CEQA Guidelines calling for
the preparation of a subsequent environmental impact
report or a supplement to SEIR 340 have occurred.
Resolution No. ______
Resolution No. ______
Resolution No. ______
Project Planner:
Elaine Thienprasiddhi
ethien@anaheim.net
ITEM NO. 3
CONDITIONAL USE PERMIT NO. 2015-05818 (DEV2015-00074)
Location: 1678 West Broadway
Request: To permit and retain five automobile sales agency offices within an existing multi-tenant office
building.
Environmental Determination: The Planning Commission will consider whether to find the project to be Categorically Exempt from the provisions of the California Environmental
Quality Act and Guidelines as a Class 1 (Existing Facilities)
Categorical Exemption.
Resolution No. ______
Project Planner: Nick Taylor
njtaylor@anaheim.net
06-13-2016 Page 4 of 5
ITEM NO. 4 CONDITIONAL USE PERMIT NO. 2016-05871
(DEV2016-00031)
Location: 751 South Weir Canyon Road, Suite 147
Request: To upgrade an existing on-sale of beer and wine
ABC license to an alcoholic beverage license in conjunction with an existing restaurant with outdoor dining
(Tempo Urban Kitchen).
Environmental Determination: The Planning Commission
will consider whether to find the project to be Categorically
Exempt from the provisions of the California Environmental
Quality Act and Guidelines as a Class 1 (Existing Facilities) Categorical Exemption.
Resolution No. ______
Project Planner: Amy Vazquez
avazquez@anaheim.net
ITEM NO. 5 CEQA MITIGATED NEGATIVE DECLARATION
GENERAL PLAN AMENDMENT NO. 2015-00505
RECLASSIFICATION NO. 2015-00284
CONDITIONAL USE PERMIT NO. 2015-05832 DEVELOPMENT AGREEMENT NO. 2016-00003 TENTATIVE TRACT MAP NO. 17959
(DEV2015-00101)
Location: 415 South Anaheim Hills Road
Request: The following land use entitlements are
requested to permit the development of a 60-unit, attached
single family residential project: a general plan amendment to amend the General Plan land use designation from
Open Space and Water Uses to Open Space, Water Uses
and Corridor Residential; reclassify the subject properties
from the OS (SC) (Open Space, Scenic Corridor Overlay)
Zone to the RM-1 (SC) (Single Family Residential, Scenic Corridor Overlay) and the OS (SC) (Open Space, Scenic
Corridor Overlay) Zones; a conditional use permit to permit
a 60-unit attached single-family residential development
with modified development standards; a development
agreement between the applicant and the City of Anaheim to provide funding for open space amenities; and a
tentative tract map to create a 60-unit residential
subdivision.
Environmental Determination: The Planning Commission
will consider whether a Mitigated Negative Declaration is the appropriate environmental documentation for this request under the California Environmental Quality Act.
Resolution No. ______ Resolution No. ______ Resolution No. ______
Resolution No. ______
Resolution No. ______
Resolution No. ______
Project Planner:
Amy Vazquez
avazquez@anaheim.net
06-13-2016 Page 5 of 5
Adjourn to Monday, June 27, 2016 at 5:00 p.m.
CERTIFICATION OF POSTING
I hereby certify that a complete copy of this agenda was posted at:
4:45 p.m. June 8, 2016 (TIME) (DATE)
LOCATION: COUNCIL CHAMBER DISPLAY CASE AND COUNCIL DISPLAY KIOSK
SIGNED:
ANAHEIM CITY PLANNING COMMISSION
The City of Anaheim wishes to make all of its public meetings and hearings accessible to all members
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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
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200 S. Anaheim Blvd. Suite #162 Anaheim, CA 92805 Tel: (714) 765-5139
Fax: (714) 765-5280 www.anaheim.net
ITEM NO. 3
PLANNING COMMISSION REPORT
City of Anaheim
PLANNING AND BUILDING DEPARTMENT
DATE: JUNE 13, 2016
SUBJECT: CONDITIONAL USE PERMIT NO. 2015-05818
LOCATION: 1678 West Broadway
APPLICANT/PROPERTY OWNER: The applicant is Hussein Abubaker with
Insurance 4 U. The property owner is H&L Partners, represented by Zachary Sham.
REQUEST: The applicant requests approval of a conditional use permit to permit and
retain five retail and wholesale automobile sales agency offices within an existing
multi-tenant office building.
RECOMMENDATION: Staff recommends that the Planning Commission adopt the
attached resolution, determining that this request is categorically exempt from further
environmental review under the California Environmental Quality Act (Class 1, Existing Facilities) and approving Conditional Use Permit No. 2015-05818.
BACKGROUND: This 1.67-acre property is improved with an existing two-story,
multi-tenant office building fronting Broadway and a single story multi-tenant commercial building fronting Euclid Street. The request includes retaining five
automobile sales agency offices within existing office suites at 1678 West Broadway.
The property is located in the "C-G" General Commercial zone. The General Plan
designates the property for General Commercial land uses. The property is adjacent to General Commercial-zoned properties to the north, south, and west, which include a
service station, restaurant, and a church (across Broadway). The property to the east is
zoned “RM-4” Multi-Family Residential and features existing apartment buildings.
PROPOSAL: The applicant proposes to permit and retain five automobile sales
agency offices within existing office spaces at the subject property. The individual auto
dealers’ offices range from approximately 200 square feet to 500 square feet and would
generally operate from 9:00 a.m. to 5:00 p.m., with most of their business done by
appointment. The applicant proposes both retail and wholesale licenses, and indicates that 90% of their inventory is shipped overseas and sold wholesale, with each business conducting a maximum of four sales transactions per month. Pursuant to DMV
requirements, the applicant has proposed a total of 10 inventory display parking spaces
(two per dealer), which would be located along the east property line.
CONDITIONAL USE PERMIT NO. 2015-05818
June 13, 2016 Page 2 of 3
SITE PLAN
FINDINGS AND ANALYSIS:
Conditional Use Permit: Before the Planning Commission may approve a conditional use
permit, it must make a finding of fact that the evidence presented shows that all of the following
conditions exist:
1) That the proposed use is properly one for which a conditional use permit is authorized by
this code;
2) That the proposed use will not adversely affect the adjoining land uses, or the growth and
development of the area in which it is proposed to be located;
3) That the size and shape of the site proposed for the use is adequate to allow the full development of the proposed use, in a manner not detrimental to either the particular area
or health and safety;
4) That 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 area; and
5) That the granting of the conditional use permit under the conditions imposed, if any, will not be detrimental to the health and safety of the citizens of the City of Anaheim.
CONDITIONAL USE PERMIT NO. 2015-05818
June 13, 2016 Page 3 of 3
Retail and wholesale automotive sales agency offices are permitted in the General Commercial Zone, subject to the approval of a conditional use permit to ensure compatibility with the
surrounding area. The combined uses on-site require 101 parking spaces pursuant to the Zoning
Code, plus 10 spaces for dealer inventory display required by the DMV, totaling 111 spaces. A
total of 129 spaces are provided on-site resulting in a surplus of 18 spaces. With sufficient on-site parking, the auto sales agency offices would operate in a manner consistent with other general office uses, and are not anticipated to create any adverse impacts to the surrounding area. Further,
the sales agency offices have been operating and have not generated any complaints from
surrounding residences or businesses.
Conditions of approval to ensure that the business is operated in a responsible manner have been included in the draft resolution. These conditions include the following:
o The number of sales agency offices on the property shall not exceed five;
o A maximum of two vehicles per automotive sales agency business, not to exceed ten total vehicles, shall be stored on-site and only in designated display spaces;
o Vehicle deliveries including loading and unloading shall be performed on site; and,
o Delivery vehicles shall not block any part of the public right-of-way.
Environmental Impact Analysis: Staff recommends the Planning Commission find that the effects of the proposed project are typical of those generated within that class of projects (i.e., Class 1 – Existing Facilities) which consist of the repair, maintenance, and/or minor alteration
of existing public or private structures or facilities, involving negligible or no expansion of use
beyond that existing at the time of this determination, and that, therefore, pursuant to Section
15301 of Title 14 of the California Code of Regulations, the proposed project will not cause a significant effect on the environment and is, therefore, categorically exempt from the provisions of CEQA.
CONCLUSION: The requested automotive sales agency offices are compatible with
surrounding commercial and commercial and multi-family residential land uses. The recommended conditions of approval will ensure that the uses will not have an adverse impact on the surrounding land uses. Therefore, staff recommends approval of this request.
Prepared by, Submitted by,
Nick Taylor Jonathan E. Borrego
Associate Planner Planning Services Manager
Attachments:
1. Draft Conditional Use Permit Resolution 2. Letter of Operation
3. Parking Summary
4. Plans
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[DRAFT] ATTACHMENT NO. 1
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RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ANAHEIM APPROVING CONDITIONAL USE PERMIT NO. 2015-05818 AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH
(DEV2015-00074)
(1678 WEST BROADWAY)
WHEREAS, the Planning Commission of the City of Anaheim (the "Planning Commission") did receive a verified petition to approve Conditional Use Permit No. 2015-
05818 to permit five "Automotive – Sales Agency Offices (Retail)" and/or "Automotive –
Sales Agency Offices (Wholesale)" within an existing multi-tenant office complex (the
"Proposed Project") on a portion of that certain real property located at 1678 West Broadway in the City of Anaheim, County of Orange, State of California, as generally depicted on the map attached hereto as Exhibit A and incorporated herein by this reference (the "Property");
and
WHEREAS, the Property is approximately 1.67 acres in size and is currently developed with a two-story, multi-tenant office building and a single-story commercial
building. The Anaheim General Plan designates the Property for General Commercial land
uses. The Property is located in the "C-G" General Commercial Zone, meaning that the
Property is subject to the zoning and development standards contained in Chapter 18.08
(Commercial Zones) of the Anaheim Municipal Code (the "Code"); and
WHEREAS, the Planning Commission did hold a public hearing at the Civic
Center in the City of Anaheim on June 13, 2016 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 Chapter
18.60 (Procedures) of the Code, to hear and consider evidence for and against proposed Conditional Use Permit No. 2015-05818, and to investigate and make findings and
recommendations in connection therewith; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as “CEQA”), the State of California Guidelines for Implementation of the California
Environmental Quality Act (Title 14 of the California Code of Regulations; herein referred to
as the "CEQA Guidelines"), and the City's Local CEQA Procedure Manual, the City is the
"lead agency" for the preparation and consideration of environmental documents for the
Proposed Project; and
WHEREAS, the Planning Commission finds and determines that the effects of the
Proposed Project are typical of those generated within that class of projects (i.e., Class 1 –
Existing Facilities) which consist of the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that
existing at the time of this determination, and that, therefore, pursuant to Section 15301 of the
CEQA Guidelines, the Proposed Project will not cause a significant effect on the environment
and is, therefore, categorically exempt from the provisions of CEQA; and
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WHEREAS, the 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 Proposed project and, specifically, with respect to
the request for Conditional Use Permit No. 2015-05818, does find and determine the following:
1. The proposed five "Automotive – Sales Agency Offices (Retail)" and/or
"Automotive – Sales Agency Offices (Wholesale)" within an existing commercial building are
allowable primary uses in the "C-G" General Commercial Zone authorized by subsection .010 of Section 18.08.030 (Uses) of Chapter 18.08 (Commercial Zones) of the Code subject to a
conditional use permit and the zoning and development standards of Section 18.38.065
(Automotive – Sales Agency Office (Retail) and Automotive – Sales Agency Office
(Wholesale) of the Code.
2. The proposed conditional use permit to permit five "Automotive – Sales
Agency Offices (Retail)" and/or "Automotive – Sales Agency Offices (Wholesale)", 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 offices will operate
within an existing multi-tenant office building and will not have an adverse affect on adjacent properties.
3. The size and shape of the site for the use is adequate to allow the full
development of the five "Automotive – Sales Agency Offices (Retail)" and/or "Automotive –
Sales Agency Offices (Wholesale)" in a manner not detrimental to the particular area or to the health and safety because the facility is located within an existing commercial property that
provides a sufficient number of on-site parking and vehicle display spaces, and vehicle
circulation will be in accordance with the plans and materials submitted.
4. The traffic generated by the use will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area because the
number of vehicles entering and exiting the site by this use will not exceed the anticipated
volumes of traffic on the surrounding streets and adequate parking and circulation will be
provided 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 as the
proposed land use will continue to be integrated with the surrounding commercial and multi-family residential uses in the area and would not pose a health or safety risk to the citizens of
the City of Anaheim.
WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this
Resolution, that the facts stated in this Resolution are supported by substantial evidence in the
record, including testimony received at the public hearing, the staff presentations, the staff report and all materials in the project files. There is no substantial evidence, nor are there other facts, that detract from the findings made in this Resolution. This Planning Commission
expressly declares that it considered all evidence presented and reached these findings after
due consideration of all evidence presented to it.
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NOW, THEREFORE, BE IT RESOLVED that, pursuant to the above findings,
this Planning Commission does hereby approve Conditional Use Permit No. No. 2015-05818,
contingent upon and subject to the conditions of approval set forth in Exhibit B attached
hereto and incorporated herein by this reference, which are hereby found to be a necessary prerequisite to the proposed use of that portion of the Property for which Conditional Use Permit No. 2015-05818 is applicable 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 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, (ii) the modification complies with the Code, and
(iii) the applicant has demonstrated significant progress toward establishment of the use or
approved development.
BE IT FURTHER RESOLVED that any amendment, modification or revocation 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 Code.
BE IT FURTHER RESOLVED that the 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 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.
THE FOREGOING RESOLUTION was adopted at the Planning Commission
meeting of June 13, 2016. Said resolution is subject to the appeal provisions set forth in Chapter 18.60 (Procedures) of the Anaheim Municipal Code pertaining to appeal procedures
and may be replaced by a City Council Resolution in the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
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STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do
hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016 by the following vote of
the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM
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EXHIBIT “B”
CONDITIONAL USE PERMIT NO. 2015-05818
(DEV2015-00074)
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
OPERATIONAL CONDITIONS
1 A maximum of five (5) retail and/or wholesale automotive sales agency businesses shall be permitted on-site.
Planning and Building Department
Cofe Enforcement
Division
2 A maximum of two (2) vehicles per automotive sales agency
business, not to exceed ten (10) total vehicles, shall be stored on-site and only in designated display spaces.
Planning and Building
Department
Cofe Enforcement
Division
3 Automobiles in the possession or under the control of any person
operating an Automotive — Sales Agency Office (Retail or
Wholesale) and offered for sale to a consumer shall not be stored, sold, or displayed upon any public street or highway. [See
paragraph . 0104 of Subsection .010 of Section 18. 38. 065 of the
Anaheim Municipal Code.]
Planning and Building
Department
Cofe Enforcement Division
4 Ongoing during project operations, vehicle deliveries, including
loading and unloading, shall be performed on site. Delivery vehicles shall not block any part of the public right-of-way.
Public Works
Department
Traffic &
Transportation Division
GENERAL CONDITIONS
5 The business shall be operated in accordance with the Letter of
Request submitted as part of this application. Any changes to the business operation, as described in that document, shall be subject
to review and approval by the Planning Director to determine
substantial conformance with the Letter of Request and to ensure
compatibility with the surrounding uses.
Planning and Building
Department,
Planning Services
Division
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6 The Applicant shall defend, indemnify, and hold harmless the City
and its officials, officers, employees and agents (collectively referred to individually and collectively as “Indemnitees”) from
any and all claims, actions or proceedings brought against
Indemnitees to attack, review, set aside, void, or annul the decision
of the Indemnitees concerning this permit or any of the
proceedings, acts or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality or
validity of any condition attached thereto. The Applicant’s
indemnification is intended to include, but not be limited to,
damages, fees and/or costs awarded against or incurred by
Indemnitees and costs of suit, claim or litigation, including without limitation attorneys’ fees and other costs, liabilities and expenses
incurred by Indemnitees in connection with such proceeding.
Planning and Building
Department,
Planning Services
Division
7 The applicant is responsible for paying all charges related to the
processing of this discretionary case application within 30 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
may result in the revocation of the approval of this application.
Planning and Building
Department,
Planning Services Division
8 The business premises shall be developed substantially in
accordance with plans and specifications submitted to the City of Anaheim by the petitioner, which plans are on file with the
Planning Department, and as conditioned herein.
Planning and Building
Department,
Planning Services
Division
ATTACHMENT NO. 2
ATTACHMENT NO. 3
ATTACHMENT NO. 4
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
ITEM NO. 4
PLANNING COMMISSION REPORT
City of Anaheim
PLANNING AND BUILDING DEPARTMENT
DATE: JUNE 13, 2016 SUBJECT: CONDITIONAL USE PERMIT NO. 2016-05871
LOCATION: 731 South Weir Canyon Road, Suite 147 (Tempo Urban Kitchen) APPLICANT/PROPERTY OWNER: The applicant is John Lascari representing
Tempo Urban Kitchen and the property owner is Sycamore Canyon Plaza, LLC.
REQUEST: The applicant is requesting approval of a conditional use permit to upgrade an existing “Type 41” On-Sale Beer and Wine-Eating Place Alcoholic Beverage Control (ABC) license to a “Type 47” On-Sale General– Eating Place
license at a new restaurant which is located within a commercial shopping center
(Tempo Urban Kitchen).
RECOMMENDATION: Staff recommends that the Planning Commission adopt the attached resolution, determining that this request is categorically exempt from
further environmental review under the California Environmental Quality Act (Class
1, Existing Facilities) and approving Conditional Use Permit No. 2016-05871.
BACKGROUND: This 11.5-acre property is developed with a multi-tenant shopping center (Sycamore Canyon Plaza). The property is located in the “SP-88-1,
DA 2” Sycamore Canyon Specific Plan zone and the General Plan designates this
property for Neighborhood Center land uses. The property is also located within the
Scenic Corridor (SC) Overlay zone. The property is surrounded by apartments to the south across Canyon Creek Road, condominiums to the north and west, and single-family residences to the east across Serrano Avenue. The property is well-
maintained and there are no active code enforcement cases related to the commercial
center or restaurant.
Conditional Use Permit No. 3304 was approved July 30, 1990 to permit the commercial retail center. This permit was amended on December 16, 1991 to allow
the on-premises sales and consumption of beer and wine for a pizza restaurant within
Suite No. 147.
CONDITIONAL USE PERMIT NO. 2016-05871
June 13, 2016 Page 2 of 4
PROPOSAL: The applicant proposes upgrade from the sales of beer and wine to full alcoholic beverages for on-site consumption within a new 2,600 square foot restaurant with an outdoor
patio. The restaurant space is currently being improved and the business will soon be opening.
Beer and wine has been served at this location since 1991 in conjunction with both a pizza and
Italian food restaurant. The new restaurant owner (the applicant) would like to offer a full variety of alcoholic beverages to customers to complement the food served at the restaurant. The restaurant would be open seven days a week from 11:00 a.m. to midnight and have
approximately 30 employees. The business would operate with an On-General-Eating Place
(Type 47) ABC license. The restaurant is currently under construction with tenant improvements
that include new restrooms, kitchen, bar and dining room upgrades and a new trellis for the outdoor patio.
Interior Rendering
FINDINGS AND ANALYSIS:
Conditional Use Permit: Before the Planning Commission may approve a conditional use
permit, it must make a finding of fact that the evidence presented shows that all of the following
conditions exist:
1) That the proposed use is properly one for which a conditional use permit is authorized by
this code;
2) That the proposed use will not adversely affect the adjoining land uses, or the growth and
development of the area in which it is proposed to be located;
3) That the size and shape of the site proposed for the use is adequate to allow the full
development of the proposed use, in a manner not detrimental to either the particular area
or health and safety;
4) That 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 area; and
5) That the granting of the conditional use permit under the conditions imposed, if any, will
not be detrimental to the health and safety of the citizens of the City of Anaheim.
CONDITIONAL USE PERMIT NO. 2016-05871
June 13, 2016 Page 3 of 4
While restaurants are permitted by right in this zone, a conditional use permit is required to permit
alcoholic beverages to ensure compatibility with surrounding land uses. A determination of public
convenience or necessity is not required by the City for a Type 47 ABC license.
The number of alcohol licenses allowed in each of the City’s census tracts is regulated by ABC and is based upon population. The restaurant is located within Census Tract No. 219.22, which
has a population of 4,834 residents. This population allows for five on-sale licenses and presently
there are 12 licenses within the tract. The number of licenses is high in this census tract because
the tract includes the Anaheim Hills Festival regional shopping center where a significant amount of restaurants and entertainment venues currently exist.
The location is within Police Reporting District No. 1244, which has a crime rate that is 114
percent above the city average. There has been one call for service to the restaurant location in
the last year for an open door. The crime rate within ¼ mile of this property is below the citywide average related to calls for service during the past year consisting of eight petty thefts, seven simple assaults, six thefts from vehicles and six reports of vandalism.
The purpose of a conditional use permit is to analyze any potential impacts on adjacent properties and impose conditions of approval to ensure that any operational impacts would be minimal. Staff has evaluated the proposal and believes that, if properly conditioned to address potential impacts,
alcoholic beverage service at this location would be appropriate. Staff has provided conditions of
approval in the attached resolution to ensure that the use would not have a negative impact on the
adjacent businesses in the area, including the Police Department’s recommended conditions intended to regulate the use. These conditions include the following:
o Requiring the premise to be operated as a bona fide restaurant with a full menu available
at all times;
o Requiring ABC LEAD (Licensee Education on Alcohol and Drugs) training for
employees;
o Prohibiting any exterior advertising of alcoholic beverages;
o Sales of alcoholic beverages for consumption off the premises are prohibited; and
o Requiring security measures to the satisfaction of the Anaheim Police Department.
No increase in the parking requirement would occur since the new restaurant is replacing an
existing restaurant in the same tenant space. Based on these factors, staff believes that the proposed use would be compatible with the surrounding area and recommends approval of the conditional use permit.
CONDITIONAL USE PERMIT NO. 2016-05871
June 13, 2016 Page 4 of 4
Environmental Impact Analysis: Staff recommends the Planning Commission find that the effects of the proposed project are typical of those generated within that class of projects (i.e.,
Class 1 – Existing Facilities) which consist of the repair, maintenance, and/or minor alteration of
existing public or private structures or facilities, involving negligible or no expansion of use
beyond that existing at the time of this determination, and that, therefore, pursuant to Section 15301 of Title 14 of the California Code of Regulations, the proposed project will not cause a significant effect on the environment and is, therefore, categorically exempt from the provisions
of CEQA.
CONCLUSION: Staff supports the requested conditional use permit to allow alcoholic beverage sales for on-site consumption in conjunction with a new restaurant within a commercial shopping center because the use would be compatible with surrounding uses. The recommended
conditions of approval would ensure that the alcoholic beverage sales would not have an adverse
impact on the surrounding land uses. Staff recommends approval of this request.
Prepared by, Submitted by,
Amy Vazquez Jonathan E. Borrego
Contract Planner, Lilley Planning Group Planning Services Manager Attachments: 1. Draft Conditional Use Permit Resolution
2. Applicant’s Request Letter
3. Police Department Memorandum 4. Plans 5. Photographs
(SC)DA4SINGLE FAMILY RESIDENCE
T (SC)FIRE STATION
SP 88-1 (SC)
DA7
SINGLE FAMILY RESIDENCE
SP 88-1 (SC)DA2RETAIL
SP 88-1 (SC)DA1CONDOMINIUMS/TOWNHOUSES
SP 88-1 (SC)DA3SYCAMORE CANYON APARTMENTS450 DU
SP 88-1 (SC)OPENSPACE SP 88-1 (SC)OPENSPACEPUMPING STATION
SP 88-1 (SC)DA4OPEN SPACE
SP 88-1 (SC)DA6OPEN SPACE
SP 88-1 (SC)DA5SINGLE FAMILY RESIDENCE
SP 88-1 (SC)DA1CONDOMINIUMS/TOWNHOUSES
S P 8 8 -1 (S C )
D A 4
S I N G L E F A M I L Y R E S I D E N C E
SP 88-1 (SC)
DA4
SINGLE FAMILY RESIDENCE
SP 88-1 (SC)DA4SINGLE FAMILY RESIDENCE
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DEV No. 2016-00031
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DEV No. 2016-00031
Subject Property APN: 354-201-22
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[DRAFT] ATTACHMENT NO. 1
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF ANAHEIM APPROVING CONDITIONAL USE PERMIT NO. 2016-05871
TO PERMIT A TYPE 47 (ON SALE GENERAL– EATING PLACE) ALCOHOLIC
BEVERAGE CONTROL LICENSE AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH
(DEV2016-00031)
(731 SOUTH WEIR CANYON ROAD, SUITE 147)
WHEREAS, the Planning Commission of the City of Anaheim (the "Planning
Commission") did receive a verified petition to approve Conditional Use Permit No. 2016-05871 to permit the sale and consumption of beer, wine and distilled spirits with a Type 47 (On Sale
General – Eating Place) license issued by the State of California Department of Alcoholic
Beverage Control (herein referred to as "ABC") at a proposed new restaurant within a portion of
an existing retail commercial center commonly known as Suite 147 (the "Proposed Project")
located at 731 South Weir Canyon Road in the City of Anaheim, County of Orange, State of California (the "Property") as generally depicted on the map attached hereto as Exhibit A and
incorporated herein by this reference; and
WHEREAS, the Proposed Project is part of an 11-acre, multi-tenant commercial retail
shopping center. The Property is located in Development Area No. 2 of the Sycamore Canyon
Specific Plan No. 88-1. Since Section 18.102.130 (Development Area No. 2) of Chapter 18.102 (Sycamore Canyon Specific Plan No. 88-1 (SP 88-1) Zoning and Development Standards) of the Anaheim Municipal Code (“Code”) states that the standards of the"C-NC" Neighborhood Center
Commercial Zone shall apply for development in Development Area No. 2, the Property is
subject to the zoning and development standards contained in Chapter 18.08 (Commercial
Zones) of the Code. The Property is also located in the Scenic Corridor (SC) Overlay Zone, meaning that the requirements of the Scenic Corridor (SC) Overlay Zone, as set forth in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of the Code shall apply to the Property and
supersede any inconsistent regulations of the"C-NC" Neighborhood Center Commercial Zone.
The Anaheim General Plan designates the Property for Neighborhood Center land uses; and
WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on June 13, 2016 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 Chapter 18.60
(Procedures) of the Code, to hear and consider evidence for and against the Proposed Project,
and to investigate and make findings and recommendations in connection therewith; and
WHEREAS, pursuant to and in accordance with the provisions of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as “CEQA”), the State of California Guidelines for the Implementation of the California
Environmental Quality Act (commencing with Cal. Code Regs. tit. 14, § 15000; herein referred
to as the "CEQA Guidelines"), and the City's Local CEQA Procedure Manual, the City is the
"lead agency" for the preparation and consideration of environmental documents for the Proposed Project; and
- 2 - PC2016-***
WHEREAS, this Planning Commission finds and determines that the effects of the
Proposed Project are typical of those generated within that class of projects (i.e., Class 1 – Existing Facilities) which consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical
equipment, or topographical features, involving negligible or no expansion of use beyond that
existing at the time of this determination, and that, therefore, pursuant to Section 15301 of the
CEQA Guidelines, the Proposed Project will not cause a significant effect on the environment and is, therefore, categorically exempt from the provisions of CEQA; and
WHEREAS, this 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 Proposed Project and, specifically, with respect to the request for
Conditional Use Permit No. 2016-05871, does find and determine the following:
1. The proposed request to permit the restaurant with the sale and consumption of beer, wine, and distilled spirits within an existing commercial retail center is an allowable use within
the "C-NC" Neighborhood Center Commercial Zone and, by extension, Chapter 18.102
(Sycamore Canyon Specific Plan No. 88-1 (SP 88-1) Zoning and Development Standards) and
within the Scenic Corridor (SC) Overlay Zone , subject to a conditional use permit.
2. The proposed request to permit the restaurant with the sale and consumption of beer, wine, and distilled spirits within an existing commercial retail center would not adversely affect
the surrounding land uses and the growth and development of the area in which it is proposed to
be located because the Property is currently developed with a commercial retail center and the
proposed use of a portion of the Property as a restaurant is compatible with the existing uses within the commercial center and surrounding area.
3. The size and shape of the site is adequate to allow the full development of the
proposed use in a manner not detrimental to the particular area nor to the health, safety and
general welfare of the public because the Property is already improved with a multi-tenant commercial building and no expansion to the existing building or use is proposed.
4. The traffic generated by permitting the sale of beer, wine, and distilled spirits for on-
premises consumption in conjunction with a restaurant would not impose an undue burden upon
the streets and highways designed and improved to carry the traffic in the area because the
number of vehicles entering and exiting the Property are consistent with the existing commercial use of the Property and the permitted businesses within the commercial center.
5. The granting of Conditional Use Permit No. 2016-05871 under the conditions
imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim.
WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this Resolution, that the facts stated in this Resolution are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentations, the staff report
and all materials in the Proposed Project files. There is no substantial evidence, nor are there
other facts, that detract from the findings made in this Resolution. This Planning Commission
expressly declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it.
- 3 - PC2016-***
NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and determinations, this Planning Commission does hereby approve Conditional Use Permit No. 2016-05871, contingent upon and subject to the conditions of approval set forth in Exhibit B
attached hereto and incorporated herein by this reference, which are hereby found to be a
necessary prerequisite to the proposed use of the Property under Conditional Use Permit No.
2016-05871 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 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, (ii)
the modification complies with the Code, and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development.
BE IT FURTHER RESOLVED that any amendment, modification or revocation 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 Code.
BE IT FURTHER RESOLVED that this 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 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.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
June 13, 2016. Said resolution is subject to the appeal provisions set forth in Chapter 18.60
(Procedures) of the Anaheim Municipal Code pertaining to appeal procedures and may be
replaced by a City Council Resolution in the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 4 - PC2016-***
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss. CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim,
do hereby certify that the foregoing resolution was passed and adopted at a meeting of the
Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM
- 5 - PC2016-***
- 6 - PC2016-***
EXHIBIT “B”
CONDITIONAL USE PERMIT NO. 2016-05871 (DEV2016-00031)
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
RESTAURANT CONDITIONS OF APPROVAL
1. There shall be no admission fee, cover charge, nor minimum purchase of
alcoholic beverages required.
Police Department
2. The subject alcoholic beverage license shall not be exchanged for a
public premise (bar) type license nor shall the establishment be operated
as a public premise as defined in Section 23039 of the Business and
Professions Code.
Police Department
3. At all times when the premise is open for business, the premise shall be
maintained as a bona fide restaurant and shall provide a menu containing
an assortment of foods normally offered in such restaurant.
Police Department
4. Security measures shall be provided to the satisfaction of the Anaheim Police Department and to prevent disturbances to the neighborhood by excessive noise created by patrons entering or leaving the premises.
Police Department
5. Managers / Owners need to call the Department of Alcoholic Beverage Control and obtain LEAD (Licensee Education on Alcohol and Drugs
Program) Training for themselves and service employees. The number is
714-558-4101.
Police Department
6. The door(s) shall be kept closed at all times during the operation of the
premises except in cases of emergency. Said door(s) not to consist solely
of a screen or ventilated security door.
Police Department
7. There shall be no exterior advertising of any kind or type, including
advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages.
Police Department
8. Applicant shall post clearly visible signs that read “No Alcoholic Beverages Beyond This Point” at any exit door that leads outside the main building.
Police Department
9. Sales of alcoholic beverages for consumption off the premises are prohibited. Police Department
- 7 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
COMMERCIAL RETAIL CENTER CONDITIONS OF APPROVAL
10. Adequate lighting of parking lots, passageways, recesses, and grounds contiguous to buildings shall be provided with lighting of sufficient
wattage to provide adequate illumination to make clearly visible the
presence of any person on or about the premises during the hours of
darkness and provide a safe, secure environment for all person, property, and vehicles on-site. All exterior doors shall have their own light source, which shall adequately illuminate door areas at all hours to make clearly
visible the presence of any person on or about the premises and provide
adequate illumination for persons exiting the building.
Police Department
11. The owner of the commercial center shall be responsible for maintaining
the commercial center in an orderly fashion through the provision of
regular maintenance and removal of trash or debris. Any graffiti painted or marked upon the buildings making up the subject Property shall be removed or painted over within 24 hours of being applied.
Planning and
Building Department,
Code Enforcement Division
GENERAL CONDITIONS OF APPROVAL
12. The Applicant shall defend, indemnify, and hold harmless the City and its officials, officers, employees and agents (collectively referred to individually and collectively as “Indemnitees”) from any and all claims,
actions or proceedings brought against Indemnitees to attack, review, set
aside, void, or annul the decision of the Indemnitees concerning this
permit or any of the proceedings, acts or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality or validity of any condition attached thereto. The Applicant’s
indemnification is intended to include, but not be limited to, damages,
fees and/or costs awarded against or incurred by Indemnitees and costs
of suit, claim or litigation, including without limitation attorneys’ fees and other costs, liabilities and expenses incurred by Indemnitees in connection with such proceeding.
Planning and Building Department,
Planning Services
Division
13. The applicant is responsible for paying all charges related to the processing of this discretionary case application within 30 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 may result in the revocation of the approval of this application.
Planning and Building Department,
Planning Services
Division
- 8 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
14. The subject Property shall be developed, used and maintained
substantially in accordance with plans and specifications submitted to
the City of Anaheim by the petitioner and which plans are on file with
the Planning Department, and as conditioned herein.
Planning and
Building Department,
Planning Services
Division
LETTER OF REQUEST
John Lascari Tempo Urban Kitchen 731 S. Weir Canyon Road Anaheim Hills, CA. 92808
We are requesting approval to sell alcohol at our full service restaurant in Anaheim Hills to complement our food and satisfy our customer requests.
We will be employing approximately 30 full and part time employees with hours of operations from approximately 11: am to midnight.
There are multiple tenants in the center including Ralph’s market, CVS pharmacy, KD donuts, Subway, Union Bank, Chase Bank, Supercuts, Giti nail salon, Circle K- Mobil gas, chiropractic, Dental care, Vision care, Animal hospital, Lati Da Bagles, Taco & Karate shops. We would appreciate the request and feel free to contact my cell anytime with any questions. John Lascari 714-336-7934
ATTACHMENT NO. 2
ATTACHMENT NO. 3
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ATTACHMENT NO. 4
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1. Front door/parking view west facing.
1 B. Side view with glass enclosure patio north facing
ATTACHMENT NO. 5
2. Rear view w/ parking east facing
2 B. Kitchen east facing from rear door
3. Kitchen west facing from dining area
3 B. Kitchen service area south facing
4. Service bar and dining south facing.
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
ITEM NO. 5
PLANNING COMMISSION REPORT
City of Anaheim
PLANNING AND BUILDING DEPARTMENT
DATE: JUNE 13, 2016
SUBJECT: GENERAL PLAN AMENDMENT NO. 2015-00505
RECLASSIFICATION NO. 2015-00284 CONDITIONAL USE PERMIT NO. 2015-05832 TENTATIVE TRACT MAP NO. 17959 DEVELOPMENT AGREEMENT NO. 2016-00003
LOCATION: 415 South Anaheim Hills Road (Anaheim Hills Racquet Club)
APPLICANT/PROPERTY OWNER: The applicant is Greg McCafferty with
Sagecrest, LLC and the property owner is Russell D. Miller.
REQUEST: The applicant is requesting approval of the following land use entitlements to construct a 60-unit, attached single-family residential development:
1) A General Plan Amendment to amend the land use designation from
Open Space and Water Uses to Open Space, Water Uses and Corridor
Residential.
2) A Reclassification, or rezoning, of the property from the “OS” Open
Space to the “RM-1” Multiple Family Residential zone.
3) A Conditional Use Permit to allow an attached single-family residential development with modified development standards.
4) A Tentative Tract Map to create a one lot, 60-unit residential
subdivision for condominium purposes.
5) A Development Agreement between Sagecrest, LLC and the City of
Anaheim that would serve to provide funding for off-site open space
amenities while “locking in” the policies, rules and regulations in
effect at the time of approval of the Development Agreement.
RECOMMENDATION: Staff recommends the Planning Commission adopt the
attached resolutions, determining that a Mitigated Negative Declaration is the
appropriate environmental documentation for this request along with Mitigation
Monitoring Plan No. 333, and approving General Plan Amendment No. 2015-00505,
Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832, Tentative Tract Map No. 17959, and Development Agreement No. 2016-00003.
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 2 of 10
BACKGROUND: This 8.4-acre site is located in the “OS”, and “SC” Overlay zones and is
developed with a private tennis club. A detached 0.52-acre portion of the project site,
immediately north of La Paz Way, is vacant. A 1.7 acre easement along the west property line
includes the Walnut Creek Flood Control Channel. The site is designated for Open Space and Water land uses by the General Plan. Surrounding uses include Santa Ana Canyon Road to the
north, single-family residences to the west, senior living apartment residences to the south and
condominiums and single-family residences to the east across Anaheim Hills Road.
PROPOSAL: The applicant proposes to construct 60 attached single-family residences, or townhomes on the 7.84-acre portion of the site south of La Paz Way. The 0.52-acre portion of
the site north of La Paz Way would remain in its current state. The residential buildings would be
2-stories (29 feet) in height. The units would be three to four bedrooms and range in size from
1,511 to 2,033 square feet. As depicted in the rendering below, the units are designed with a
Spanish architectural style. The buildings would be enhanced with tile roofs, stucco finishes, wrought iron railings, decorative entry doors and light fixtures, decorative stucco medallions and
wood shutters. A detailed development summary is included as Attachment No. 1 to this report.
Access to the development would be provided by a driveway along Anaheim Hills Road, which
runs parallel to the site’s eastern boundary. A 28-foot wide private drive would provide
vehicular access to the private garages and surface parking for residents and guests. Pedestrian access paths are provided throughout the project. A total of 188 parking spaces are required for
this project and 188 spaces are proposed. The parking spaces would consist of 120 garage
spaces and 68 surface spaces adjacent to the driveways and common guest parking areas.
The project would also provide 69,000 square feet of common recreational leisure area in excess
of the 21,000 square feet required by the Zoning Code. Features that would be provided to the new residents include barbeque areas, outdoor fitness equipment, landscaped paseos, a passive
garden with seating, pet areas and several open courtyards. The project would be heavily
landscaped with several trees, shrubs, turf and ground covers. A screen of tall shrubs would be
located along the western property line between the flood control channel and the rear yards of
the existing single-family residences. Specimen trees (i.e., Eucalyptus trees) located on the project site that are healthy and in good condition, as determined by a qualified arborist, would
be retained as part of the development.
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 3 of 10
In addition, 10,592 square feet of private recreational leisure area would be provided with patios
and balconies for all of the units. The ground floor patios would include three to four foot high masonry walls with a stucco finish painted to match the building exterior.
FINDINGS AND ANALYSIS: Following is staff’s analysis and recommendation for each requested action:
General Plan Amendment: The Land Use Element of the City’s General Plan is the guide for the
City’s future development. It designates the distribution and location of specific land uses and
addresses the permitted densities for each land use designation. The applicant is requesting a
General Plan Amendment in order to redesignate the property from Open Space and Water Uses to Open Space, Water and Corridor Residential land uses.
Before the Planning Commission may approve a General Plan Amendment, it must make a
finding of fact that the evidence presented shows that all of the following conditions exist:
1) The proposed amendment maintains the internal consistency of the General Plan;
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 4 of 10
2) The proposed amendment would not be detrimental to the public interest, health, safety,
convenience or welfare of the City;
3) The proposed amendment would maintain the balance of land uses within the City; and
4) If the amendment is to the General Plan Land Use Map, the subject property is physically
suitable to accommodate the proposed modification, including but not limited to, access,
physical constraints, topography, provision of utilities, and compatibility with
surrounding land uses.
The Open Space land use designation is typically applied to areas of natural open space, utility
easements, freeway remnant parcels and land areas surrounding major water features. This
property is unique in that it has an Open Space designation but is developed with an active,
privately-owned use. The Water use designation is applied to the City’s drainage and flood control facilities, including the Walnut Creek Flood Control Channel which runs along the west
property line of the project site.
The proposed General Plan Amendment applies to the land area located south of La Paz Way
that is currently designated for Open Space. The proposed land use designation for most of the project site is Corridor Residential. The portion of the site that contains the flood control
channel would remain designated as Water, and the property located to the north of La Paz Way
would remain designated Open Space.
The Land Use Element describes Corridor Residential as providing for the development of single-family attached housing fronting on arterial highways and incorporating a rear access
drive or alley. Anaheim Hills Road is designated as a Hillside Secondary Arterial Highway in
the Circulation Element of the General Plan. The permitted density range of the Corridor
Residential designation is zero up to 13 dwelling units per gross acre. The proposed project
would have a density of 10 dwelling units per acre. This density calculation does not factor in the 0.52-acre piece of the site north of La Paz Way. The proposed land use designation is
compatible with the design and density of the surrounding neighborhood which includes a mix of
single-family residences, townhomes and senior housing developments, including a 3-story, 118
unit senior citizen apartment community to the south that is developed at a density of
approximately 24 units per acre. The proposed modification to the General Plan supports the General Plan goals and policies mentioned below which are intended to provide a variety of
quality housing opportunities to address the City’s diverse housing needs.
o Goal 1.1; Policy 2: Ensure that new development is designed in a manner that preserves
the quality of life in existing neighborhoods.
o Goal 1.1; Policy 3: Encourage future development to provide functional public spaces that
foster social interaction.
o Goal 4.1: Promote development that integrates with and minimizes impacts to surrounding land uses.
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 5 of 10
o Goal 4.1; Policy 4: Require new or expanded uses to provide mitigation or buffers between existing uses where potential adverse impacts could occur.
o Goal 7.1; Policy1: Address the jobs-housing balance through the development of housing
in proximity to job centers.
o Goal 4.1: Promote development that integrates with and minimizes impacts to surrounding
land uses.
The proposed General Plan amendment would also support the overarching goals of the City’s
adopted 2014-2021 Housing Element which includes various strategies aimed at ensuring that the City’s future housing needs are met.
As further described below, this project includes the request for a Development Agreement
between the City of Anaheim and the developer that obligates the developer to pay a sum of
$200,000 “ to fund certain public park and recreational improvements which may be constructed by the City near the Project.” Staff believes that this project, as a whole, serves a public benefit
that compensates for the elimination of land designated for Open Space through the collection of
this fee and the requisite per-unit park impact fees that will be paid prior to the construction of
the project. Collectively, these fees will be used to make significant park-related investments in
the area. For the above-noted reasons, staff recommends approval of the General Plan Amendment request.
Reclassification: This property is located in the “OS” and “SC” Overlay zones. A
reclassification, or rezoning, to the RM-1 zone is being requested in order to develop attached,
single-family homes. The intent of the RM-1 Zone is to promote the development of attractive, safe and healthy residential corridor environment along arterial highways. This zone also
encourages planned residential development for attached single-family townhouses with strong
street-facing orientation, incorporating a rear access drive or service alley, with a minimum
building site area per dwelling unit of 3,350 square feet. The density of the proposed project is
consistent with and would implement the property’s Corridor Residential General Plan land use designation. The density of the proposed project is 10 units to the acre and the Corridor
Residential land use designation allows up to 13 units per acre. As described above, the
proposed reclassification supports several General Plan goals intended to provide a variety of
quality housing opportunities to address the City’s diverse housing needs; therefore, staff
recommends approval of the reclassification request.
Conditional Use Permit: The Zoning Code requires a conditional use permit to allow a
residential planned unit development for single-family attached dwellings in the RM-1 zone. In
this zone, development standards, including setback and building separation requirements, may
be modified as part of a conditional use permit when it is determined that the modifications serve to achieve a high quality project design, privacy, livability, and compatibility with surrounding
uses. Before the Planning Commission may approve the conditional use permit for a planned
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 6 of 10
unit development, it must make a finding of fact that the evidence presented shows that all of the
following conditions exist:
1) The uses within the project are compatible;
2) New buildings or structures related to the project are compatible with the scale, mass, bulk, and orientation of existing buildings in the surrounding area, provided the existing
buildings conform with the provisions of this title;
3) Vehicular and pedestrian access are adequate;
4) The project is consistent with applicable design guidelines adopted by the City;
5) The size and shape of the site proposed for the use is adequate to allow the full development of the proposed use in a manner not detrimental to the particular area;
6) 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 area;
7) That the granting of the conditional use permit under the conditions imposed, if any, will not be detrimental to the health and safety of the citizens of the City of Anaheim.
The project complies with all development standards of the RM-1 Zone with the exception of
certain setback requirements. The applicant is requesting to modify the street setbacks adjacent
to Anaheim Hills Road and minimum setbacks between buildings. Setbacks for projects in the RM-1 may be modified in connection with a conditional use permit when it is determined that
the modifications promote increased pedestrian activity, provide for a unified street frontage,
ensure privacy and light for residential uses, provide for public spaces, and promote
compatibility with existing development. The project would be developed with the following
setback ranges:
Setback Area Adjacent Land Use Required Setbacks Proposed Structural Setbacks
Anaheim Hills
Road
N/A
50 feet
17-21 feet to the fence;
17-41 feet to the building
Interior property line to the north N/A 15 feet 1,100 feet
Interior property
line to the west
Single-Family
Residential
35 feet
80-100 feet
Interior property
line to the south
Senior Apartments
15 feet
21-27 feet
Between
buildings
N/A
30 feet
20-35
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 7 of 10
This project includes proposed modifications to the following development standards:
Street Setbacks Adjacent to Anaheim Hills Road: The applicant is requesting 17 to 41 foot
wide structural setback where a 50-foot wide setback is required adjacent to Anaheim Hills
Road (per SC Overlay zone requirements). In order to provide sound attenuation, security
and privacy to the future residents, the applicant is requesting to construct a 4-foot high block
wall fence within a portion of the front yard setback area. The intent of the required 50-foot wide setback on Anaheim Hills Road is to ensure that adequate separation and landscaping is
provided adjacent to the street. Staff believes that the request for a modification to the front
setback requirement is justified since the buildings front onto Anaheim Hills Road and
include attractive façade treatments such as decorative front porches and main entrances.
Building to Building Setbacks: The Zoning Code requires a 30-foot separation between two-
story buildings with parallel walls that are designated as “primary” walls. Primary walls are
building walls that contain an entrance and/or windows opening into living areas. The
setbacks required between the buildings are intended to ensure privacy and light for
residential uses, provide for public spaces, and promote compatibility with existing development. The project would have 20 to 35 foot wide paseos between the buildings and
28 to 34 foot wide driveways between the other buildings. These paseos would reduce the
massing of the buildings. Staff believes that the modified separations between buildings are
justified because the modifications would allow for the efficient layout of buildings on the
property and provide greater usable common recreation-leisure areas in the project than could be provided if the separations between buildings were required. These common space areas
increase the viability of the project and promote community interaction. The elevations
facing the courtyards are enhanced with patios and balconies and are highly articulated with
quality design features. For these reasons, staff recommends approval of the building-to-
building setback modification request.
Tentative Tract Map: Before the Planning Commission may approve the tentative tract map, it
must make a finding of fact that the evidence presented shows that all of the following conditions
exist:
1) That the proposed subdivision of the Property, including its design and improvements, is
consistent with the General Plan of the City of Anaheim, and more particularly with the "Corridor Residential" land use designation.
2) That the proposed subdivision of the Property, as shown on proposed Tentative Tract
Map No. 17959, including their design and improvements, is consistent with the zoning
and development standards of the proposed "RM-1" Multiple-Family Residential Zone
being proposed in conjunction with Reclassification No. 2015-00284.
3) That the site is physically suitable for the type and density of the proposed project.
4) That the design of the subdivision, as shown on proposed Tentative Tract Map No.
17959, is not likely to cause substantial environmental damage or substantially and
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 8 of 10
avoidably injure fish or wildlife or their habitat, as no sensitive environmental habitat has
been identified.
5) That the design of the subdivision, as shown on proposed Tentative Tract Map No. 17959
or the type of improvements is not likely to cause serious public health problems.
6) That the design of the subdivision, as shown on proposed Tentative Tract Map No.
17959, or the type of improvements will not conflict with easements acquired by the
public, at large, for access through or use of property within the proposed subdivision.
A tentative tract map is required to create a one-lot, airspace subdivision for individual
ownership of the 60 units being proposed. All common areas, including driveways, recreational
areas, paseos and sidewalks would be owned and maintained by the homeowners’ association.
The proposed density of 10 dwelling units per acre is permitted under the Corridor Residential
land use designation which allows up to 13 dwelling units per acre. The tract map complies
with all applicable regulations and is consistent with the density allowed under the Corridor
Residential General Plan designation. In addition, the project is not likely to cause substantial
environmental damage and will not conflict with easements acquired by the public. Therefore, staff recommends approval of the tentative tract map request.
Development Agreement: The applicant has proposed a new development agreement to
provide funding for future park and open space improvements. This payment would
supplement the required park fees associated with this project. A development agreement is a contract for development which provides a property owner or developer a vested right to
proceed with an approved development, thereby “freezing” the entitlement along with
established regulations and fees, in exchange for the City obtaining benefits beyond what
would otherwise be required by existing regulations and ordinances. State law allows cities
and project applicants to enter into a development agreement for their mutual benefit. The proposed development agreement would provide the applicant with the certainty desired to
develop the project and in return would provide funding for future park amenities.
In 1982 the City Council approved a resolution establishing procedures and requirements for the
consideration of development agreements. This resolution identifies four items necessary for the Planning Commission to make a recommendation to the City Council. These items are:
1. The proposed development agreement is consistent with the General Plan; and
2. The proposed development agreement is compatible with the uses authorized in, and the regulations prescribed for, the applicable zoning district(s) in which
the Revised Project is and will be located; and
3. The proposed development agreement is compatible with the orderly
development of property in the surrounding area; and
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 9 of 10
4. The proposed development agreement is not otherwise detrimental to the
health and safety of the citizens of the City of Anaheim.
Through thorough research and review for the this project, staff believes that the proposed
project and development agreement meet the requirements listed above and therefore,
recommends approval of the development agreement. It would serve to provide surety for the
developer and includes benefits to the City by providing funding for future community open space amenities.
Community Outreach: The applicant has conducted proactive neighborhood outreach for this
project. Several meetings have taken place with homeowners residing in the neighborhoods to
the east (across Anaheim Hills Road) and to the west (across the flood control channel). According to the applicant, most of the neighbors have been supportive of the project since the
existing power lines would be undergrounded, a sidewalk would be constructed along Anaheim
Hills Road, and landscaping would be enhanced and maintained by the homeowners’ association.
Staff has also received input from residents in the immediate vicinity of the project indicating
that the existing tennis club has had negative impacts on the community because of noise and poor maintenance of the facility. No opposition has been received by staff.
Environmental Impact Analysis: An Initial Study/Mitigated Negative Declaration (IS/MND)
has been prepared to evaluate the environmental impacts of the project and to identify
necessary mitigation. The IS/MND was posted at the County Clerk and circulated to public agencies and interested parties on May 12, 2016 for a 20-day comment period. One comment
letter was received from the County of Orange Public Works Department relating to the
surface hydrology of the Walnut Canyon Storm Canyon. . This comment letter and a
response letter are included as Attachment No. 13. Mitigation measures have been identified
in the IS/MND and are included in the draft resolutions and Mitigation Monitoring Plan No. 333 attached to this report. With implementation of these measures, project impacts will be
reduced to a level considered less than significant and the IS/MND concluded that there are no
remaining potentially significant adverse impacts related to the project.
GENERAL PLAN AMENDMENT NO. 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 & DEVELOPMENT AGREEMENT NO. 2016-00003
June 13, 2016 Page 10 of 10
CONCLUSION: Staff has carefully considered and reviewed this proposal and believes the
proposed project is designed in a manner that will provide a quality living environment for its future residents and is compatible with the surrounding land uses. In addition, the proposed
project meets the goal to continue to provide a variety of quality housing opportunities to address
the City’s diverse housing needs. Staff recommends approval of the proposed request.
Prepared by, Submitted by,
Amy Vazquez Jonathan E. Borrego
Contract Planner, Lilley Planning Group Planning Services Manager
Attachments:
1. Development Summary
2. Draft Mitigated Negative Declaration Resolution
3. Draft General Plan Amendment Resolution 4. Draft Reclassification Resolution
5. Draft Conditional Use Permit Resolution
6. Draft Tentative Tract Map Resolution
7. Draft Development Agreement Resolution
8. Initial Study and Mitigated Negative Declaration is available at: http://www.anaheim.net/DocumentCenter/View/11873
9. Mitigation Monitoring Plan No. 333
10. Applicant’s Letter of Request
11. Site Photographs
12. Complete Plan Set 13. Comment Letters for IS/MND
14. Letters from Neighbors
15. Draft Development Agreement
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DEV No. 2015-00101
Subject Property APN: 363-472-03
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DEV No. 2015-00101
Subject Property APN: 363-472-03
°0 50100
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Aerial Photo:June 2015
ATTACHMENT NO. 1
DEVELOPMENT SUMMARY
Development Standard Proposed Project RM-1 Zone and SC Overlay Zone
Standards
Site Area 8.4 acres
Density 10 du/ac 13 du/ac max.
Floor Area 1,511 to 2,033 square feet N/A
Street Setback 17-41 feet 50 feet*
Interior Property Lines Setback 21-100 feet 15-35 feet*
Setbacks Between Buildings 20-35 feet 30 feet*
Building Height 29 feet 40 feet
Parking 188 spaces 188 spaces
Recreation-Leisure Area 69,000 square feet 21,000 square feet*
*May be modified by CUP
[DRAFT] ATTACHMENT NO. 2
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION
APPROVING AND RECOMMENDING THAT THE CITY COUNCIL APPROVE AND ADOPT A MITIGATED NEGATIVE DECLARATION FOR PROPOSED GENERAL PLAN
AMENDMENT 2015-00505, RECLASSIFICATION NO. 2015-00284, CONDITIONAL USE
PERMIT NO. 2015-05832, TENTATIVE TRACT MAP NO. 17959 AND DEVELOPMENT
AGREEMENT NO. 2016-00003 WITH SAGECREST, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY (DEV2015-00101)
(415 SOUTH ANAHEIM HILLS ROAD)
WHEREAS, the City of Anaheim (the "City") received a verified petition from Sagecrest,
LLC, a California limited liability company (the "Developer"), requesting that the City consider and approve General Plan Amendment No. 2015-00505, Reclassification No. 2015-00284,
Conditional Use Permit No. 2015-05832, Tentative Tract Map No. 17959 and Development
Agreement No. 2016-00003 for certain real property commonly known as 415 South Anaheim
Hills Road in the City of Anaheim, County of Orange, State of California, as generally depicted
on the map attached hereto as Exhibit A and incorporated herein by this reference (the "Property"), for the purpose of allowing the applicant to construct 60 single-family, attached
condominium units (the "Proposed Project"); and
WHEREAS, the Property is approximately 8.4 acres in size and is located in the "OS"
Open Space Zone. The Property is also located within the Scenic Corridor (SC) Overlay Zone, meaning that the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of the Anaheim Municipal Code (the "Code") apply to the Property. The Property is designated on
the Land Use Element of the General Plan for "Open Space" and “Water” land uses; and
WHEREAS, General Plan Amendment No. 2015-00505 proposes to amend "Figure LU-4: Land Use Plan” of the Land Use Element of the General Plan to re-designate those portions of the Property designated as "Open Space" and “Water" land uses to "Corridor Residential", “Open
Space” and “Water” land uses so that a portion of the Property will be designated for "Corridor
Residential" land uses and a portion of the Property will remain “Open Space” and “Water” land
uses; and
WHEREAS, Reclassification No. 2015-00284 proposes to rezone or reclassify the Property from the "OS" Open Space Zone to the “RM-1" Multiple Family Residential Zone,
which will define the allowable land uses and property development standards for the Property in
accordance with Chapter 18.06 (Multiple-Family Residential Zone) of Title 18 (Zoning) of the
Code. Upon approval of Reclassification No. 2015-00284, the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of the Code will also apply to the Property and, where inconsistent therewith, will supersede any regulations of the “RM-1" Multiple Family
Residential Zone; and
WHEREAS, all development within the “RM-1" Multiple-Family Residential Zone that includes single-family attached and detached dwellings are subject to approval by the Planning Commission of a conditional use permit pursuant to Subsection .010 of Section 18.06.160
(Residential Planned Unit Development) of the Code; and
- 2 - PC2016-***
WHEREAS, pursuant to subsection .030 of Section 18.06.160 (Residential Planned Unit
Development) of the Code, setbacks may be modified in order to achieve a good project design,
privacy, livability and compatibility with surrounding uses. If approved, Conditional Use Permit
No. 2015-05832 will modify the minimum setback requirements, as set forth in Section 18.06.090 of the Code, and the setbacks between buildings as set forth in Subsection .050 of Section 18.06.090 of the Code; and
WHEREAS, Tentative Tract Map No. 17959 proposes to permit the construction of the
Project in accordance with the design and improvements of the subdivision, as shown on proposed Tentative Tract Map No. 17959; and
WHEREAS, Development Agreement No. 2016-00003 proposes to provide the
Developer a vested right to develop the Project in accordance with General Plan Amendment No.
2015-00505, Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Tentative Tract Map No. 17959 for the term of the Development Agreement; and
WHEREAS, General Plan Amendment 2015-00505, Reclassification No. 2015-00284,
Conditional Use Permit No. 2015-05832, Tentative Tract Map No. 17959, Development
Agreement No. 2016-00003 and the Project shall be referred to herein collectively as the "Proposed Project"; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
“CEQA”), the State of California Guidelines for the Implementation of the California Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "CEQA Guidelines"), and the City's Local CEQA
Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
WHEREAS, a draft Mitigated Negative Declaration was prepared in accordance with CEQA, the CEQA Guidelines and the City's Local CEQA Procedure Manual to evaluate the
physical environmental impacts of the Proposed Project. The Mitigated Negative Declaration
was circulated for a 20-day public/responsible agency review on May 12, 2016 and was also
made available for review on the City's website at www.anaheim.net. A complete copy of the Mitigated Negative Declaration is on file and can be viewed in the Planning and Building
Department of the City located on the First Floor of City Hall at 200 S. Anaheim Blvd.,
Anaheim, California. Copies of said document are also available for purchase; and
WHEREAS, the City gave notice of its intent to adopt the Mitigated Negative Declaration to (a) the public pursuant to Section 15072(b) of the CEQA Guidelines, (b) those
individuals and organizations, if any, that previously submitted written requests for notice
pursuant to Section 15072(b) of the CEQA Guidelines, (c) responsible and trustee and other
agencies with jurisdiction over resources that will be affected by the Proposed Project pursuant
to Section 15073(c) of the CEQA Guidelines, and (d) the Clerk of the County of Orange pursuant to Section 15072(a) of the CEQA Guidelines; and
- 3 - PC2016-***
WHEREAS, in conformance with CEQA and the CEQA Guidelines, a Mitigation
Monitoring Plan has been prepared for the Proposed Project and includes mitigation measures
that are specific to the Proposed Project (herein referred to as "MMP No. 333"). A complete
copy of MMP No. 333 is attached hereto as Exhibit B and incorporated herein by this reference; and
WHEREAS, the City intends and desires to use the Mitigated Negative Declaration as the
environmental documentation required by CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual for the Proposed Project; and
WHEREAS, the Planning Commission did hold a public hearing at the Anaheim Civic
Center, Council Chamber, 200 South Anaheim Boulevard, on June 13, 2016, 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 Code, to consider the Mitigated Negative Declaration and to hear and consider evidence for and against the Proposed Project and related actions, and to investigate and make
findings and recommendations in connection therewith; and
WHEREAS, based upon a thorough review of the Proposed Project and the Mitigated
Negative Declaration, including MMP No. 333 and the comments received to date and the responses prepared, the Planning Commission, based upon a thorough review of the Mitigated
Negative Declaration and related documents and the evidence received concerning the Mitigated
Negative Declaration, does find and determine as follows:
1. That the Mitigated Negative Declaration has been prepared in compliance with the requirements of CEQA, the CEQA Guidelines, and the City's Local CEQA Procedure
Manual and, together with MMP No. 333, serves as the appropriate environmental
documentation for the Proposed Project;
2. That it has carefully reviewed and considered the information contained in
the Mitigated Negative Declaration (including the Initial Study and any comments received
during the public review period) prior to acting upon the Proposed Project; and
3. Based upon the record before it (including the Initial Study and any
comments received), the Proposed Project will have a less than significant impact upon the environment with the implementation of the mitigation measures contained in MMP No. 333 and that the Mitigated Negative Declaration reflects the independent judgment and analysis of the
Planning Commission.
WHEREAS, this Planning Commission determines that the evidence in the record constitutes substantial evidence to support the actions taken and the findings made in this Resolution, that the facts stated in this Resolution are supported by substantial evidence in the
record, including testimony received at the public hearing, the staff presentations, the staff report
and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. This Planning Commission expressly declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it.
- 4 - PC2016-***
NOW, THEREFORE, BE IT RESOLVED that this Planning Commission, pursuant to
the above findings and based upon a thorough review of the Mitigated Negative Declaration and
the evidence received to date, does hereby recommend that the City Council carefully review and
consider the information contained in the Mitigated Negative Declaration (including the Initial Study and any comments received during the public review period) and find and determine as follows:
1. That the Mitigated Negative Declaration has been prepared in compliance with the
requirements of CEQA, the CEQA Guidelines, and the City's Local CEQA Procedure Manual
and, together with MMP No. 333, serves as the appropriate environmental documentation for the Proposed Project;
2. Based upon the record before it (including the Initial Study and any comments
received), that the Proposed Project will have a less than significant impact upon the
environment with the implementation of the mitigation measures contained in MMP No. 333 and that the Mitigated Negative Declaration reflects the independent judgment and analysis of the City Council;
3. That the City Council approve and adopt Mitigated Negative Declaration and MMP No. 333; and
4. That the City Council authorize and direct City staff to file with the Clerk of the County of Orange a Notice of Determination in accordance with Section 15075(a) of the State
CEQA Guidelines.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
June 13, 2016. Said resolution is subject to the appeal provisions set forth in Chapter 18.60 (Procedures) of the Anaheim Municipal Code pertaining to appeal procedures and may be
replaced by a City Council Resolution in the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 5 - PC2016-***
STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do
hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June,
2016.
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 6 - PC2016-***
7
ANAHEIM HILLS ROAD RESIDENTIAL PROJECT
MITIGATION MONITORING PROGRAM NO. 333
Terms and Definitions: 1. Property Owner/Developer – Owner or developer of Anaheim Hills Road Residential Project. 2. Environmental Equivalent/Timing – Any mitigation measure and timing thereof, subject to the approval of the City, which will have the same or superior result and will have the same or superior effect on the environment. The Planning Department, in conjunction with any appropriate agencies or City departments, shall determine the adequacy of any proposed "environmental equivalent/timing" and, if determined necessary, may refer said determination to the Planning Commission. Any costs associated with information required in order to make a determination of environmental equivalency/timing shall be done by the property owner/developer. Staff time for reviews will be charged on a time and materials basis at the rate in the City's adopted Fee Schedule. 3. Timing – This is the point where a mitigation measure must be monitored for compliance. In the case where multiple action items are indicated, it is the first point where compliance associated with the mitigation measure must be monitored. Once the initial action item has been complied with, no additional monitoring pursuant to the Mitigation Monitoring Plan will occur, as routine City practices and procedures will ensure that the intent of the measure has been complied with. For example, if the timing is "to be shown on approved building plans"
subsequent to issuance of the building permit consistent with the
approved plans will be final building and zoning inspections pursuant to
the building permit to ensure compliance.
4. Responsibility for Monitoring – Shall mean that compliance with the subject mitigation measure(s) shall be reviewed and determined adequate by all departments listed for each mitigation measure. Outside public agency review is limited to those public agencies specified in the Mitigation Monitoring Plan which have permit authority in conjunction with the mitigation measure.
5. Ongoing Mitigation Measures – The mitigation measures that are
designated to occur on an ongoing basis as part of this Mitigation
Monitoring Plan will be monitored in the form of an annual letter from
the property owner/developer in January of each year demonstrating
how compliance with the subject measure(s) has been achieved. When
compliance with a measure has been demonstrated for a period of one
year, monitoring of the measure will be deemed to be satisfied and no
further monitoring will occur. For measures that are to be monitored
"Ongoing During Construction", the annual letter will review those
measures only while construction is occurring; monitoring will be
discontinued after construction is complete. A final annual letter will be
provided at the close of construction.
6. Building Permit – For purposes of this Mitigation Monitoring Plan,
a building permit shall be defined as any permit issued for construction
of a new building or structural expansion or modification of any
existing building, but shall not include any permits required for
interior tenant improvements or minor additions to an existing structure
or building.
8
MITIGATION MONITORING PROGRAM N0. 316
MITIGATION
NUMBER TIMING MEASURE
RESPONSIBLE FOR
MONITORING COMPLETION
IV. BIOLOGICAL RESOURCES
MM-BIO-1 Prior to the issuance
of a grading permit
A survey for active raptor nests shall be conducted no less than three
days prior to commencement of any construction activities during raptor nesting season (January 15-September 15). Restrictions may be
placed on construction activities in the vicinity of any active nest observed until the nest is no longer active as determined by a qualified
Biologist. A 500-foot buffer zone shall be designated around a nest to allow construction to proceed while minimizing disturbance to the
active nest. Once the nest is no longer active, construction can proceed in the buffer zone.
Planning and Building
Department
MM-BIO-2 Prior to the issuance
of a grading permit
In order to avoid impacts on nesting birds, vegetation removal shall not
be scheduled during the breeding season (January 15–September 15) to the extent feasible. If vegetation clearing for construction must be
conducted during the breeding season, a qualified Biologist shall conduct pre-construction surveys for nesting birds no less than three
days prior to disturbance to confirm the absence of active nests in the work area. If no active nests are found, tree removal can proceed. If the
Biologist finds an active nest in or adjacent to the construction area and determines that the nest may be impacted, the Biologist shall
identify an appropriate buffer zone (typically, 100 to 300 feet) around the nest. The size of the buffer may vary depending on site features,the
sensitivity of the species, location of the nest, the existing level of human activity, and the nature of the construction activity, but will be
designed to prevent disruption of nesting activity. Once the nest is no longer active, construction can proceed in the buffer zone.
Planning and Building
Department
MM-BIO-3 Prior to the issuance
of a grading permit
Prior to the initiation of construction activities, the limits of disturbance (project impact area) shall be clearly defined and marked
in the field with fencing, stakes, or flagging in order to prevent damage to adjacent vegetation and habitat.
Planning and Building
Department
MM-BIO-4 Prior to the issuance of a grading permit
All equipment maintenance, staging, and dispensing of fuel, oil,
coolant, or any other toxic substances shall occur only in designated
areas within the project site’s proposed limits. These designated areas shall be clearly marked and located in such a manner as to contain run-off.
Planning and Building Department
9
V. CULTURAL RESOURCES
MM-CUL-1 Prior to the issuance of a grading permit
In the event that cultural resources are unearthed during ground-disturbing activities associated with the Proposed Project, the
contractor shall cease all earth-disturbing activities within 50 feet of the discovery and shall retain a qualified archaeologist. Construction
activities may continue in other areas. The archaeologist shall evaluate the resource and determine if the discovery is significant. If the
discovery proves to be significant, additional work, such as data recovery excavation or resource recovery may be warranted and shall
be discussed in consultation with the appropriate regulatory agency and/or tribal group.
Planning and Building
Department
IX. NOISE
MM-NOI-1 Prior to the issuance
of a grading permit
The Applicant shall construct a minimum 4.0-foot high solid wall on
the east side of the proposed private patios for: (1) the northern most unit of the south building with 12 units; and (2) the eastern most unit
of the north building with 5 units. The sound walls shall be required to be constructed of a solid material (e.g., glass, wood or plaster) that are
free of any cutouts or openings.
Planning and Building
Department
MM-NOI-2 Prior to the issuance of a building permit
The Applicant shall provide a “windows closed” condition for each proposed townhome. A “windows closed” condition requires a means
of mechanical ventilation per Chapter 12, Section 1205 of the Uniform Building Code. This shall be achieved with a standard forced air
conditioning and heating system for each residential unit.
Planning and Building Department
XIII. PALEONTOLOGICAL RESOURCES
MM-PAL-1 Prior to the issuance of a grading permit
In the event that paleontological resources are unearthed during ground-disturbing activities associated with the Proposed Project, the
contractor shall cease all earth-disturbing activities within 50 feet of the discovery and shall retain a qualified paleontologist. Construction
activities may continue in other areas. The paleontologist shall evaluate the resource and determine if the discovery is significant. If
the discovery proves to be significant, additional work such as data recovery excavation or resource recovery may be warranted and shall
be discussed in consultation with the appropriate regulatory agency.
Planning and Building Department
10
XVII. TRIBAL CULTURAL RESOURCES
MM-TRI-1 Prior to the issuance
of a building permit
In the event that potential tribal cultural resources are unearthed during
ground-disturbing activities associated with the Proposed Project, the contractor shall cease all earth-disturbing activities within 50 feet of the discovery and shall notify the appropriate tribal group to assign a tribal monitor to inspect and evaluate the potential tribal cultural
resource. Construction activities may continue in other areas. The tribal monitor shall evaluate the resource and determine if the
discovery is significant. If the discovery proves to be significant, additional work, such as data recovery excavation or resource recovery may be warranted and shall be discussed in consultation with the appropriate tribal groups.
Planning and Building
Department
[DRAFT] ATTACHMENT NO. 3
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF ANAHEIM RECOMMENDING THAT THE CITY COUNCIL OF THE CITY OF ANAHEIM APPROVE AND ADOPT
PROPOSED GENERAL PLAN AMENDMENT NO. 2015-00505
(DEV2015-00101)
(415 SOUTH ANAHEIM HILLS ROAD)
WHEREAS, the Planning Commission of the City of Anaheim (the "Planning
Commission") did receive a verified petition for an amendment to the Land Use Element of the
General Plan Amendment ("General Plan Amendment No. 2015-00505") for certain real
property commonly known as 415 South Anaheim Hills Road in the City of Anaheim, County of
Orange, State of California, as generally depicted on the map attached hereto as Exhibit A and incorporated herein by this reference (the "Property"), for the purpose of allowing the applicant
to construct 60 single-family, attached condominium units (the "Project"); and
WHEREAS, the Property is approximately 8.4 acres in size and is located in the "OS"
Open Space Zone. The Property is also located within the Scenic Corridor (SC) Overlay Zone, meaning that the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of
the Anaheim Municipal Code (the "Code") apply to the Property. The Property is designated on
the Land Use Element of the General Plan for "Open Space" and “Water” land uses; and
WHEREAS, General Plan Amendment No. 2015-00505 proposes to amend "Figure LU-4: Land Use Plan” of the Land Use Element of the General Plan to re-designate those portions of
the Property designated as "Open Space" and “Water" land uses to "Corridor Residential", “Open
Space” and “Water” land uses so that a portion of the Property will be designated for "Corridor
Residential" land uses and a portion of the Property will remain “Open Space” and “Water” land
uses; and
WHEREAS, General Plan Amendment No. 2015-00505 is proposed in conjunction with
a request (i) to rezone or reclassify the Property from the "OS" Open Space Zone to the "RM-1"
Multiple-Family Residential Zone, which reclassification is designated as "Reclassification No.
2015-00284", (ii) for approval of a conditional use permit to permit a 60-unit, attached single
family residential project with modified development standards, which is designated as "Conditional Use Permit No. 2015-05832", (iii) for approval of a tentative tract map to permit a
60-unit, attached single-family residential subdivision of the Property, which is designated as
"Tentative Tract Map No. 17959", and (iv) for approval of Development Agreement No. 2016-
00003 to provide the Developer a vested right to develop the Project in accordance with General
Plan Amendment No. 2015-00505, Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Tentative Tract Map No. 17959 for the term of the Development
Agreement; and
WHEREAS, General Plan Amendment No. 2015-00505, Reclassification No. 2015-
00284, Conditional Use Permit No. 2015-05832, Tentative Tract Map No. 17959, Development
Agreement No. 2016-00003 and the Project shall be referred to herein collectively as the "Proposed Project"; and
- 2 - PC2016-***
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
“CEQA”), the State of California Guidelines for the Implementation of the California
Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "CEQA Guidelines"), and the City's Local CEQA Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
WHEREAS, a draft Mitigated Negative Declaration was prepared in accordance with CEQA, the CEQA Guidelines and the City's Local CEQA Procedure Manual to evaluate the physical environmental impacts of the Proposed Project; and
WHEREAS, in conformance with CEQA and the CEQA Guidelines, a Mitigation
Monitoring Plan has been prepared for the Proposed Project and includes mitigation measures that are specific to the Proposed Project (herein referred to as "MMP No. 333"). A complete copy of MMP No. 333 is on file and can be viewed in the Planning Services Division of the City;
and
WHEREAS, the Planning Commission did hold a public hearing at the Anaheim Civic Center, Council Chamber, 200 South Anaheim Boulevard, on June 13, 2016, 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, to consider the Mitigated Negative Declaration and
to hear and consider evidence for and against the Proposed Project and related actions, and to
investigate and make findings and recommendations in connection therewith; and WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the
adoption of this Resolution and pursuant to the provisions of CEQA, the State CEQA Guidelines,
and the City's Local CEQA Procedure Manual, this Planning Commission found and determined
and recommended that the City Council also find and determine that the Proposed Project will have a less than significant impact upon the environment with the implementation of the conditions of approval and the mitigation measures attached to that concurrent Resolution and
contained in MMP No. 333 and that the City Council approve and adopt the Mitigated Negative
Declaration and MMP No. 333; and
WHEREAS, the Planning Commission, after due consideration, inspection, investigation
and study made by itself, and after due consideration of, and based upon, all evidence and reports
offered at said hearing, does hereby find:
1. That proposed General Plan Amendment No. 2015-00505 maintains the internal consistency of the General Plan, as the proposed modifications to the General Plan are
consistent with Goals 1.1, 2.1, 4.1 and 6.1 of the Land Use Element of the General Plan to
preserve and enhance the quality and character of Anaheim’s mosaic of unique neighborhoods,
to continue to provide a variety of quality housing opportunities, to address the City’s diverse
housing needs, and to promote development that integrates with and minimizes impacts to surrounding neighborhoods.
- 3 - PC2016-***
2. That proposed General Plan Amendment No. 2015-00505 would not be
detrimental to the public interest, health, safety, convenience, or welfare of the City in that the
proposed amendment to the Anaheim General Plan would result in residential development
opportunities. 3. That proposed General Plan Amendment No. 2015-00505 would maintain the
balance of land uses within the City because the proposed amendment would provide quality
housing opportunities to address the City’s diverse housing needs and would be compatible with
the existing Low-Medium Density Residential designation of the neighboring property to the south.
4. That the Property to be re-designated by proposed General Plan Amendment No. 2015-00505 is physically suitable to accommodate the proposed modification, including but
not limited to, access, physical constraints, topography, provision of utilities, and compatibility
with surrounding land uses because the project is designed to integrate into the surrounding
neighborhood. WHEREAS, the Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this
Resolution, that the facts stated in this Resolution are supported by substantial evidence in the
record, including testimony received at the public hearing, the staff presentations, the staff report and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. The Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due
consideration of all evidence presented to it.
NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and
determinations, the Planning Commission does hereby recommend that the City Council of the
City of Anaheim approve and adopt General Plan Amendment No. 2015-00505 in the form
attached hereto as Exhibit B, contingent upon and subject to the adoption of an ordinance
reclassifying the Property from the "OS; SC" Open Space; Scenic Corridor Overlay Zone to the "RM-1; SC" Multiple-Family Residential; Scenic Corridor Overlay Zone, in accordance with
Reclassification No. 2015-00284, now pending.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
June 13, 2016. Said resolution is subject to the appeal provisions set forth in Chapter 18.60 (Procedures) of the Anaheim Municipal Code pertaining to appeal procedures and may be
replaced by a City Council Resolution in the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 4 - PC2016-***
STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the
members thereof:
AYES: COMMISSIONERS: NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 5 - PC2016-***
- 6 -
EXHIBIT “B”
- 7 - PC2016-***
[DRAFT] ATTACHMENT NO. 4
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ANAHEIM
APPROVING RECLASSIFICATION NO. 2015-00284
AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH
(DEV2015-00101) (415 SOUTH ANAHEIM HILLS ROAD)
WHEREAS, the Planning Commission of the City of Anaheim (the "Planning
Commission") did receive a verified petition to rezone or reclassify that certain real property located at 415 South Anaheim Hills Road in the City of Anaheim, County of Orange, State of California, as generally depicted on the map attached hereto as Exhibit A and incorporated
herein by this reference (the "Property") from the "OS" Open Space Zone to the "RM-1"
Multiple-Family Residential Zone, which reclassification is designated as "Reclassification No.
2015-00284", for the purpose of allowing the applicant to construct a 60-unit attached, single-family residential project (herein referred to as the “Project”). Reclassification No. 2015-00284 is proposed in conjunction with General Plan Amendment 2015-00505, Conditional Use Permit
No. 2015-05832, Tentative Tract Map No. 17959, and Development Agreement No. 2016-
00003, now pending, which, together with the Project, shall be referred to herein collectively as
the "Proposed Project"; and
WHEREAS, the Property is approximately 8.4 acres in size and is located in the "OS"
Open Space Zone. The Property is also located within the Scenic Corridor (SC) Overlay Zone,
meaning that the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of
the Anaheim Municipal Code (the "Code") apply to the Property. Upon approval of Reclassification No. 2015-00284, the regulations contained in Chapter 18.18 (Scenic Corridor
(SC) Overlay Zone) of the Code will also apply to the Property and, where inconsistent
therewith, will supersede any regulations of the “RM-1" Multiple Family Residential Zone. The
Property is designated on the Land Use Element of the General Plan for "Open Space" and
“Water” uses; and
WHEREAS, Reclassification No. 2015-00284 proposes to apply the zoning and
development standards of the "RM-1” Multiple-Family Residential Zone to the Property; and
WHEREAS, pursuant to and in accordance with the provisions of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
“CEQA”), the State of California Guidelines for Implementation of the California Environmental
Quality Act (herein referred to as the "CEQA Guidelines"), and the City's Local CEQA
Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual, a draft Mitigated Negative Declaration ("MND") was prepared to
evaluate the physical environmental impacts of the Proposed Project; and
- 2 - PC2016-***
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual, a Mitigation Monitoring Plan ("MMP No. 333") has been prepared
for the Proposed Project and includes mitigation measures that are specific to the Proposed Project; and
WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in
the City of Anaheim on June 13, 2016 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 Chapter 18.60 of the Code, to hear and consider evidence and testimony for and against the Proposed Project and to investigate and make findings and recommendations in connection therewith; and
WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the
adoption of this Resolution and pursuant to the provisions of CEQA, the CEQA Guidelines, and the City's Local CEQA Procedure Manual, this Planning Commission found and determined and recommended that the City Council also find and determine that the Proposed Project will have a
less than significant impact upon the environment with the implementation of the conditions of
approval and the mitigation measures attached to that concurrent Resolution and contained in
MMP No. 333, and that the City Council approve and adopt the Mitigated Negative Declaration and MMP No. 333; and
WHEREAS, the Planning Commission, after due consideration, 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. Reclassification of the Property from the “OS" Open Space Zone, to the
"RM-1" Single-Family Residential Zone is consistent with the General Plan's Corridor
Residential land use designation for the Property.
2. The proposed reclassification of the Property is necessary and/or desirable
for the orderly and proper development of the Property and is compatible with the surrounding
residential uses.
3. The proposed reclassification of the Property does properly relate to the zone and permitted uses established in close proximity to the Property and to the zones and their permitted uses generally established throughout the community.
WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this Resolution, that the facts stated in this Resolution are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentations, the staff report
and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. This Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it.
- 3 - PC2016-***
NOW, THEREFORE, BE IT RESOLVED that, on the basis of the above findings and
determinations, this Planning Commission does hereby approve Reclassification No. 2015-00284
to authorize an amendment to the Zoning Map of the Anaheim Municipal Code to rezone and reclassify the Property into the "RM-1" Multiple-Family Residential Zone, contingent upon and subject to approval by the City Council of General Plan Amendment 2015-00505, Conditional
Use Permit No. 2015-05832, Tentative Tract Map No. 17959, and Development Agreement No.
2016-00003, now pending, and that the City Council adopt an ordinance reclassifying the
Property in accordance with Reclassification No. 2015-00284. BE IT FURTHER RESOLVED that this Resolution shall not constitute a rezoning of,
or a commitment by the City to rezone, the Property; any such rezoning shall require an
ordinance of the City Council, which shall be a legislative act, which may be approved or denied
by the City Council at its sole discretion. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting
of June 13, 2016.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning
Commission of the City of Anaheim held on June 13, 2016, by the following vote of the
members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 4 - PC2016-***
[DRAFT] ATTACHMENT NO. 5
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF ANAHEIM RECOMMENDING THAT THE CITY COUNCIL OF THE
CITY OF ANAHEIM APPROVE CONDITIONAL USE
PERMIT NO. 2015-05832 AND MAKING CERTAIN FINDINGS IN CONNECTION THEREWITH
(DEV2015-00101)
(415 SOUTH ANAHEIM HILLS ROAD)
WHEREAS, the Planning Commission of the City of Anaheim (the "Planning Commission") did receive a verified petition for Conditional Use Permit No. 2015-05832 to
permit the construction of a 60-unit attached, single-family residential project (the "Project")
with modified development standards, i.e., a reduction in setback requirements and distance
between buildings of the "RM-1" Multiple-Family Residential, for that certain real property
located at 415 South Anaheim Hills Road in the City of Anaheim, County of Orange, State of California, as generally depicted on the map attached hereto as Exhibit A and incorporated
herein by this reference (the "Property"); and
WHEREAS, Conditional Use Permit No. 2015-05832 is proposed in conjunction with a
request (i) to amend "Figure LU-4: Land Use Plan” of the Land Use Element of the Anaheim General Plan to re-designate those portions of the Property designated as "Open Space" and “Water" land uses to "Corridor Residential", “Open Space” and “Water” land uses so that a
portion of the Property will be designated for "Corridor Residential" land uses and a portion of
the property will remain “Open Space” and “Water” land uses, which amendment to the General
Plan is designated as "General Plan Amendment No. 2015-00505", (ii) to rezone or reclassify the Property from the "OS" Open Space Zone to the "RM-1" Multiple-Family Residential Zone, which reclassification is designated as "Reclassification No. 2015-00284", (iii) for approval of a
tentative tract map to permit a 60-lot single-family, attached residential subdivision of the
Property, which is designated as "Tentative Tract Map No. 17959", and (iv) for approval of
Development Agreement No. 2016-00003 to provide the Developer a vested right to develop the Project in accordance with General Plan Amendment No. 2015-00505, Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Tentative Tract Map No. 17959 for
the term of the Development Agreement; and
WHEREAS, General Plan Amendment No. 2015-00505, Reclassification No. 2015-
00284, Conditional Use Permit No. 2015-05832, Tentative Tract Map No. 17959, Development Agreement No. 2016-00003 and the Project shall be referred to herein collectively as the “Proposed Project”; and
WHEREAS, the Property is approximately 8.4 acres in size and is located in the "OS"
Open Space Zone. The Property is also located within the Scenic Corridor (SC) Overlay Zone
meaning that the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of the Anaheim Municipal Code (the "Code") shall apply. The Property is designated on the Land Use Element of the General Plan for "Open Space" and “Water” uses; and
- 2 - PC2016-***
WHEREAS, all development within the "RM-1" Multiple-Family Residential Zone that includes single-family attached and detached dwellings is subject to approval by the Planning
Commission of a conditional use permit pursuant to Subsection .010 of Section 18.06.160
(Residential Planned Unit Development) of the Anaheim Municipal Code (the "Code").
Pursuant to subsection .030 of Section 18.06.160 (Residential Planned Unit Development) of the Code, the minimum setback requirements, as set forth in Section 18.06.090 (Structural Setbacks), and the setbacks between buildings, as set forth in Subsection .050 of Section
18.06.090 of the Code, may be modified in order to achieve a good project design, privacy,
livability, and compatibility with surrounding uses. If approved, Conditional Use Permit No.
2015-05832 will permit the reduction in the street setbacks and setbacks between buildings requirements of the "RM-1" Multiple-Family Residential Zone for the Property; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
“CEQA”), the State of California Guidelines for Implementation of the California Environmental Quality Act (herein referred to as the "CEQA Guidelines"), and the City's Local CEQA Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local CEQA Procedure Manual, a draft Mitigated Negative Declaration ("MND") was prepared to evaluate the physical environmental impacts of the Proposed Project; and
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual, a Mitigation Monitoring Plan ("MMP No. 333") has been prepared for the Proposed Project and includes mitigation measures that are specific to the Proposed Project; and
WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in
the City of Anaheim on June 13, 2016 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 Chapter 18.60 of the Code, to hear and consider evidence and testimony for and against the Proposed Project and to
investigate and make findings and recommendations in connection therewith; and
WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the adoption of this Resolution and pursuant to the provisions of CEQA, the CEQA Guidelines, and the City's Local CEQA Procedure Manual, this Planning Commission found and determined that
the Proposed Project will have a less than significant impact upon the environment with the
implementation of the conditions of approval and the mitigation measures attached to that
concurrent Resolution and contained in MMP No. 333, and approved and adopted the Mitigated Negative Declaration and MMP No. 333; and
WHEREAS, pursuant to Subsection .030 of Section 18.06.160 (Residential Planned Unit
Development), this Planning Commission, after due consideration, inspection, investigation and
study made by itself and in its behalf, and after due consideration of all evidence and reports offered at said hearing, including the plans submitted by the applicant, does hereby find and
determine the following facts with respect to Conditional Use Permit No. 2015-05832:
- 3 - PC2016-***
1. The uses within the Project are compatible with the surrounding land uses;
2. New buildings or structures related to the Project are compatible with the
scale, mass, bulk, and orientation of existing buildings in the surrounding area, provided
the existing buildings conform with the provisions of the Zoning Code; 3. Vehicular and pedestrian access are adequate;
4. The Project is consistent with any adopted design guidelines applicable to the
Property; 5. The size and shape of the site proposed for the proposed Project is adequate to
allow the full development of the proposed use in a manner not detrimental to the
particular area;
6. The traffic generated by the proposed Project will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area;
7. The impact upon the surrounding area has been mitigated to the maximum
extent practicable; 8. The Project complies with the General Plan, as amended by General Plan
Amendment No. 2015-00505, now pending;
9. The proposed subdivision of the Property, as shown on proposed Tentative Tract Map No. 17959, including its design and improvements, will, upon approval thereof, comply with the Subdivision Map Act; and
10. 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. WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this
Resolution, that the facts stated in this Resolution are supported by substantial evidence in the
record, including testimony received at the public hearing, the staff presentations, the staff report and all materials in the project files. There is no substantial evidence, nor are there other facts, that detract from the findings made in this Resolution. This Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due
consideration of all evidence presented to it.
NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and determinations, this Planning Commission does hereby recommend that the City Council of the
City of Anaheim approve and adopt Conditional Use Permit No. 2015-05832, contingent upon
and subject to: (1) the adoption by the City Council of (i) a resolution approving and adopting
General Plan Amendment No. 2015-00505, (2) the adoption by the City Council of an ordinance authorizing an amendment to the Zoning Map to rezone and reclassify the Property to the "RM-
1" Multiple-Family Residential Zone under Reclassification No. 2015-00284, and (3) the
adoption by this Planning Commission of a resolution approving Tentative Tract Map No.
17959, all of which entitlements are now pending; (3) the mitigation measures set forth in MMP
- 4 - PC2016-***
No. 333, and (4) the conditions of approval set forth in Exhibit B attached hereto and incorporated herein by this reference, which are hereby found to be a necessary prerequisite to
the proposed use of the 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 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 Code, and (iii) the applicant has
demonstrated significant progress toward establishment of the use or approved development.
BE IT FURTHER RESOLVED, that any amendment, modification or revocation 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 Code.
BE IT FURTHER RESOLVED that the 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 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. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
June 13, 2016. Said resolution is subject to the appeal provisions set forth in Chapter 18.60
(Procedures) of the Anaheim Municipal Code pertaining to appeal procedures and may be
replaced by a City Council Resolution in the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
- 5 - PC2016-***
STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do
hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM
- 6 - PC2016-***
- 7 - PC2016-***
EXHIBIT “B”
CONDITIONAL USE PERMIT NO. 2015-05832
(DEV2015-00101)
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
PRIOR TO ISSUANCE OF A GRADING PERMIT
1 The project’s Final Site Plan, Grading, and Drainage Report shall be
submitted for review and approval to the Orange County Public
Works/Orange County Flood Control District (OCFCD). Developer shall
obtain all required OCFCD permits.
Public Works,
Development Services
2 The project’s Final Drainage Report and Soils Report shall be submitted
for review and approval to City of Anaheim Public Works Development
Services Division.
Public Works,
Development Services
3 The final Water Quality Management Plan (WQMP) shall be submitted
for review and approval to Public Works Development Services Division
and comply with the most current requirements of the Orange County Drainage Area Management Plan (DAMP).
Public Works,
Development Services
4 The property owner shall submit project improvement plans that
incorporate the required drainage improvements and the mechanisms proposed in the approved Final Drainage Report. No offsite run-off shall
be blocked during and after grading operations or perimeter wall
construction. Finish floor elevations shall be 1-ft. minimum above water
surface elevations of 100-year event.
Public Works,
Development Services
5 The applicant shall demonstrate that coverage has been obtained under
California’s General Permit for Stormwater Discharges Associated with
Construction Activity by providing a copy of the Notice of Intent (NOI) submitted to the State Water Resources Control Board and a copy of the subsequent notification of the issuance of a Waste Discharge
Identification (WDID) Number. The applicant shall prepare and
implement a Stormwater Pollution Prevention Plan (SWPPP). A copy of
the current SWPPP shall be kept at the project site and be available for City review upon request.
Public Works,
Development Services
6 That the developer shall submit a set of improvement plans for Public
Utilities Department review and approval in determining the conditions necessary for providing water service to the project.
Public Utilities, Water
Engineering
- 8 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
PRIOR TO APPROVAL OF PLANS RELATED TO WATER ENGINEERING
7 Within 30 days of project approval, the owner shall install an approved backflow prevention assembly on the water service connection(s) serving
the property, behind property line and building setback in accordance
with Public Utilities Department Water Engineering Division
requirements.
Public Utilities,
Water Engineering
8 All fire services 2-inch and smaller shall be metered with a UL listed
meter, Hersey Residential Fire Meter with Translator Register, no equals.
Public Utilities,
Water Engineering
9 A minimum of two connections to public water mains and water looping inside the project are required. Public Utilities,
Water Engineering
10 The following minimum horizontal clearances shall be maintained between proposed water main and other facilities:
- 10-feet minimum separation (outside wall-to-outside wall)
from sanitary sewer mains and laterals, and any
buildings, footings, and walls
- 5-feet minimum separation from all other utilities,
including storm drains, gas, and electric
- 6-feet minimum separation from curb face
Public Utilities,
Water Engineering
11 No public water main or public water facilities shall be installed in private alleys or paseo areas. Public Utilities,
Water Engineering
12 No public water mains or laterals shall be allowed under parking stalls or parking lots. Public Utilities,
Water Engineering
PRIOR TO THE ISSUANCE OF BUILDING PERMITS
13 All backflow equipment shall be located above ground outside of the street setback area in a manner fully screened from all public streets and
alleys. Any backflow assemblies currently installed in a vault will have
to be brought up to current standards. Any other large water system
equipment shall be installed to the satisfaction of the Water Engineering Division outside of the street setback area in a manner fully screened from all public streets and alleys. Said information shall be specifically
shown on plans and approved by Water Engineering and Cross
Connection Control Inspector.
Public Utilities,
Water Engineering
14 That a private water system with separate water service for fire
protection and domestic water shall be provided and shown on plans
submitted to the Water Engineering Division of the Anaheim Public
Utilities Department.
Public Utilities,
Water Engineering
- 9 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
15 All requests for new water services, backflow equipment, or fire lines, as
well as any modifications, relocations, or abandonments of existing water services, backflow equipment, and fire lines, shall be coordinated and permitted through the Water Engineering Division of the Anaheim Public
Utilities Department.
Public Utilities,
Water Engineering
16 The Owner shall irrevocably offer to dedicate to the City of Anaheim (i) an easement for all large domestic above-ground water meters and fire hydrants, including a five (5)-foot wide easement around the fire hydrant
and/or water meter pad. (ii) a twenty (20) foot wide easement for all
water service mains and service laterals all to the satisfaction of the
Water Engineering Division. The easements shall be granted on the Water Engineering Division of the Public Utilities Department’s standard water easement deed. The easement deeds shall include language that
requires the Owner to be responsible for restoring any special surface
improvements, other than asphalt paving, including but not limited to
colored concrete, bricks, pavers, stamped concrete, decorative hardscape, walls or landscaping that becomes damaged during any excavation, repair or replacement of City owned water facilities. Provisions for the
repair, replacement and maintenance of all surface improvements other
than asphalt paving shall be the responsibility of the Owner and included
and recorded in the Master CC & R’s for the project.
Public Utilities,
Water Engineering
17 That the developer/owner shall submit a water system master plan,
including a hydraulic distribution network analysis, for Public Utilities
Water Engineering review and approval. The master plan shall
demonstrate the adequacy of the proposed on-site water system to meet the project’s water demands and fire protection requirements.
Public Utilities,
Water Engineering
18 That the developer/owner shall submit to the Public Utilities Department
Water Engineering Division an estimate of the maximum fire flow rate
and maximum day and peak hour water demands for the project. This information will be used to determine the adequacy of the existing water
system to provide the estimated water demands. Any off-site water
system improvements required to serve the project shall be done in
accordance with Rule No. 15A.6 of the Water Utility Rates, Rules, and
Regulations.
Public Utilities,
Water Engineering
19 That water improvement plans shall be submitted to the Water
Engineering Division for approval and a performance bond in the amount
approved by the City Engineer and form approved by City Attorney shall be posted with the City of Anaheim.
Public Utilities,
Water Engineering
20 That individual water service and/or fire line connections will be
required for each parcel or residential, commercial, industrial unit per
Rule 18 of the City of Anaheim’s Water Rates, Rules and Regulations.
Public Utilities,
Water Engineering
- 10 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
21 The property owner/developer shall coordinate with Electrical
Engineering to establish electrical service requirements and submit electric system plans, electrical panel drawings, site plans, elevation plans, and related technical drawings and specifications.
Public Utilities,
Electrical Engineering
22 The legal owner shall provide to the City of Anaheim a Public Utilities
easement with dimensions as shown on the approved utility service plan.
Public Utilities,
Electrical Engineering
23 The legal owner shall submit payment to the City of Anaheim for service
connection fees.
Public Utilities,
Electrical Engineering
24 The property owner/developer shall underground any existing and new power poles and lines. Public Utilities, Electrical Engineering
25 Prior to issuance of the first building permit, excluding model homes, the
final map shall be submitted to and approved by the City of Anaheim Department of Public Works and the Orange County Surveyor for technical review and that all the applicable conditions of approval have
been complied with and then shall be filed in the office of the Orange
County Recorder.
Public Works,
Development Services
26 Prior to issuance of the grading permit and right-of-way construction permit for the storm drain and sewer, whichever occurs first, a Save
Harmless agreement in-lieu of an Encroachment Agreement is required to
be executed, approved by the City and recorded by the applicant on the
property for any storm drains connecting to a City storm drain.
Public Works, Development Services
27 The developer shall dedicate to the City sidewalk easements to provide
ADA accessible path of travel (4-ft.) around existing and proposed
obstructions (i.e. street lights, etc.) and existing and proposed driveway location along Anaheim Hills Road to the satisfaction of the City
Engineer, as needed.
Public Works,
Development Services
PRIOR TO THE FINAL BUILDING AND ZONING INSPECTIONS
28 Address numbers shall be positioned so as to be readily readable from
the street. Numbers shall be visible during hours of darkness.
Police Department
29 “No Trespassing 602(k) P.C.” posted at the entrances of parking lots/structures and located in other appropriate places (i.e., Resident
gathering points and access points, bicycle parking, etc.) Signs must be
at least 12” wide x 24” high in overall size, with white background and
black 2” lettering.
Police Department
- 11 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
30 All entrances to parking areas should be posted with appropriate signs
per 22658(a) C.V.C. to assist in removal of vehicles at the property owner’s/manager’s request.
Police Department
31 Monument signs and addresses shall be well lighted during hours of
darkness.
Police Department
32 Fire lanes shall be posted with “No Parking Any Time.” Said
information shall be specifically shown on plans submitted for reiterate
building permits.
Public Works,
Traffic Engineering
33 That curbs adjacent to the drive aisles shall be painted red to prohibit parallel parking in the drive aisles. Red curb locations shall be clearly
labeled on building plans.
Public Works,
Traffic Engineering
34 That prior to final building and zoning inspection, the developer shall construct full width sidewalk from curb to ROW line with transition to
existing sidewalk from La Paz Way to the existing driveway approach
south of the subject property on Anaheim Hills Road.
Public Works, Development Services
35 All required on-site Water Quality Management Plan, sewer, storm drain,
and public right of way improvements shall be completed, operational,
and are subject to review and approval by the Construction Services
Inspector.
Public Works,
Development Services
36 That prior to final building and zoning inspections, ADA compliant curb
access ramp with truncated domes shall be constructed at the southwest corner of the intersection of Anaheim Hills Road and La Paz Way in conformance with Public Works Standard Detail 111-3.
Public Works,
Development Services
37 Vehicle gates shall not be installed across the project driveways or access
roads without providing a vehicle turnaround area to the satisfaction of the City Engineer.
Public Works,
Traffic Engineering
ON-GOING DURING PROJECT GRADING, CONSTRUCTION AND OPERATIONS
38 Any Graffiti painted or marked upon the premises or on any adjacent
area under the control of the licensee shall be removed or painted over
within 24 hours of being applied.
Police Department
39 Trash storage areas shall be provided and maintained in a location
acceptable to the Public Works Department, Streets and Sanitation Division
and in accordance with approved plans on file with said Department. Said
Public Works
Department, Streets and
Sanitation Division
- 12 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
storage areas shall be designed, located and screened so as not to be readily
identifiable from adjacent streets or highways. The walls of the storage areas shall be protected from graffiti opportunities by the use of plant materials such as minimum 1-gallon size clinging vines planted on
maximum 3-foot centers or tall shrubbery. Said information shall be
specifically shown on the plans submitted for building permits.
40 The Owner shall be responsible for restoring any special surface improvements, other than asphalt paving, within any right-of-way, public
utility easement or City easement area including but not limited to
colored concrete, bricks, pavers, stamped concrete, walls, decorative
hardscape or landscaping that becomes damaged during any excavation, repair or replacement of City owned water facilities. Provisions for maintenance of all said special surface improvements shall be included in
the recorded Master C,C&R’s for the project and the City easement
deeds.
Public Utilities,
Water Engineering
GENERAL
41 The subject Property shall be developed substantially in accordance with
plans and specifications submitted to the City of Anaheim by the
applicant and which plans are on file with the Planning Department, and as conditioned herein.
Planning and Building
Department,
Planning Services Division
42 Conditions of approval related to each of the timing milestones above shall be prominently displayed on plans submitted for permits. For example, conditions of approval that are required to be complied with prior to the
issuance of building permits shall be provided on plans submitted for
building plan check. This requirement applies to grading permits, final
maps, street improvement plans, water and electrical plans, landscape irrigation plans, security plans, parks and trail plans, and fire and life safety plans, etc.
Planning and Building Department,
Planning Services
Division
43 The applicant is responsible for paying all charges related to the
processing of this discretionary case application within 30 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 may result in the
revocation of the approval of this application.
Planning and Building
Department,
Planning Services
Division
44 The Applicant shall defend, indemnify, and hold harmless the City and
its officials, officers, employees and agents (collectively referred to
individually and collectively as “Indemnitees”) from any and all claims,
actions or proceedings brought against Indemnitees to attack, review, set
aside, void, or annul the decision of the Indemnitees concerning this permit or any of the proceedings, acts or determinations taken, done, or
Planning and Building
Department,
Planning Services
Division
- 13 - PC2016-***
NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
made prior to the decision, or to determine the reasonableness, legality or
validity of any condition attached thereto. The Applicant’s indemnification is intended to include, but not be limited to, damages, fees and/or costs awarded against or incurred by Indemnitees and costs of
suit, claim or litigation, including without limitation attorneys’ fees and
other costs, liabilities and expenses incurred by Indemnitees in
connection with such proceeding.
[DRAFT] ATTACHMENT NO. 6
- 1 - PC2016-***
RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF ANAHEIM RECOMMENDING THAT THE CITY COUNCIL OF THE
CITY OF ANAHEIM APPROVE TENTATIVE TRACT MAP NO. 17959 AND MAKING CERTAIN FINDINGS IN
CONNECTION THEREWITH
(DEV2015-00101)
(415 SOUTH ANAHEIM HILLS ROAD)
WHEREAS, the Planning Commission of the City of Anaheim (the “Planning
Commission”) did receive a verified petition for the approval of Tentative Tract Map No. 17959
to construct 60 single-family, attached condominium units (the "Project") on certain real property
located at 415 South Anaheim Hills Road in the City of Anaheim, County of Orange, State of
California, as generally depicted on the map attached hereto as Exhibit A and incorporated herein by this reference (the "Property"); and
WHEREAS, the Property is approximately 8.4 acres in size and is located in the "OS"
Open Space Zone. The Property is also located within the Scenic Corridor (SC) Overlay Zone
meaning that the regulations contained in Chapter 18.18 (Scenic Corridor (SC) Overlay Zone) of the Anaheim Municipal Code (the "Code") apply to the Property. The Property is designated on
the Land Use Element of the General Plan for "Open Space" and “Water” land uses; and
WHEREAS, Tentative Tract Map No. 17959 is proposed in conjunction with General
Plan Amendment No. 2015-00505, Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Development Agreement No. 2016-00003, now pending, which, together
with the Project, shall be referred to herein collectively as the “Proposed Project”; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as “CEQA”), the State of California Guidelines for Implementation of the California Environmental
Quality Act (herein referred to as the "CEQA Guidelines"), and the City's Local CEQA
Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual, a draft Mitigated Negative Declaration ("MND") was prepared to
evaluate the physical environmental impacts of the Proposed Project; and
WHEREAS, in conformance with CEQA, the CEQA Guidelines and the City's Local
CEQA Procedure Manual, a Mitigation Monitoring Plan ("MMP No. 333") has been prepared
for the Proposed Project and includes mitigation measures that are specific to the Proposed
Project; and
- 2 - PC2016-***
WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in
the City of Anaheim on June 13, 2016 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 Chapter 18.60 of the Code, to hear and consider evidence and testimony for and against the Proposed Project and to
investigate and make findings and recommendations in connection therewith; and
WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the adoption of this Resolution and pursuant to the provisions of CEQA, the CEQA Guidelines, and the City's Local CEQA Procedure Manual, this Planning Commission found and determined that
the Proposed Project will have a less than significant impact upon the environment with the
implementation of the conditions of approval and the mitigation measures attached to that
concurrent Resolution and contained in MMP No. 333, and approved and adopted the Mitigated Negative Declaration and MMP No. 333; and
WHEREAS, this Planning Commission, after due consideration, inspection, investigation
and study made by itself and in its behalf, and after due consideration of all evidence and reports
offered at said hearing pertaining to the request to approve Tentative Tract Map No. 17959, does find and determine the following facts:
1. That the proposed subdivision of the Property, as shown on proposed Tentative
Tract Map No. 17959, including its design and improvements, is consistent with the General
Plan land use designation of Corridor Residential as proposed as General Plan Amendment No 2015-00505, now pending.
2. That the proposed subdivision of the Property, as shown on proposed Tentative
Tract Map No. 17959, including its design and improvements, is consistent with the zoning and
development standards of the "RM-1" Multiple-Family Residential Zone proposed as Reclassification No. 2015-00284, now pending.
3. That the site is physically suitable for the type and density of the Proposed
Project.
4. That the design of the subdivision, as shown on proposed Tentative Tract Map
No. 17959, is not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, as no sensitive environmental habitat has been
identified.
5. That the design of the subdivision, as shown on proposed Tentative Tract Map
No. 17959, or the type of improvements is not likely to cause serious public health problems.
6. That the design of the subdivision, as shown on proposed Tentative Tract Map
No. 17959, or the type of improvements will not conflict with easements acquired by the public,
at large, for access through or use of property within the proposed subdivision.
- 3 - PC2016-***
WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this Resolution, that the facts stated in this Resolution are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentations, the staff report
and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. This Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it.
NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and
determinations, this Planning Commission does hereby recommend that the City Council of the
City of Anaheim approve Tentative Tract Map No. 17959, contingent upon and subject to: (1) the adoption by the City Council of (i) a resolution approving and adopting General Plan Amendment No. 2015-00505, (2) the adoption by the City Council of an ordinance authorizing
an amendment to the Zoning Map to rezone and reclassify the Property to the "RM-1" Multiple-
Family Residential Zone under Reclassification No. 2015-00284, (3) a resolution approving
Conditional Use Permit No. 2015-05832, (4) the mitigation measures set forth in MMP No. 333; and (3) the conditions of approval set forth in Exhibit B attached hereto and incorporated herein
by this reference, which are hereby found to be a necessary prerequisite to the proposed use of
the 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 said conditions of approval may be granted
in accordance with Section 18.60.170 of the 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 Code, and (iii) the applicant has demonstrated significant
progress toward establishment of the use or approved development.
BE IT FURTHER RESOLVED that this 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 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.
- 4 - PC2016-***
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of June 13, 2016. Said Resolution is subject to the appeal provisions set forth in Section 17.08.104 of the Code pertaining to appeal procedures and may be replaced by a City Council Resolution in
the event of an appeal.
CHAIR, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning
Commission of the City of Anaheim held on June 13, 2016, by the following vote of the
members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of
June, 2016.
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
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EXHIBIT “B”
TENTATIVE TRACT MAP NO. 17959
(DEV2015-00101)
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
PRIOR TO APPROVAL OF THE FINAL MAP
1 The developer shall submit to Publlic Works, Development Services
Division for review and approval of City Council, the abandonment application and appraisal of certain City Service Road, Public Utility and Drainage Easement that is in conflict with the proposed structures.
Public Works
Department, Development Services Division
2 The developer shall submit to Public Works, Development Services Division for review and approval of the City Council, the Abandonment
application and appraisal of certain City Service Road, Public Utility, and
Drainage Easement that is in conflict with the proposed permanent
Building structures.
Public Works Department,
Development Services
Division
3 A 15-foot storm drain easement shall be dedicated to the City of Anaheim
around the existing storm drain portion that is within the property without a
public utility easement.
Public Works
Department,
Development Services Division
4 The project shall relinquish street access to Anaheim Hills except at approved driveway locations.
Public Works Department, Development Services
Division
5 All parcels shall be assigned street addresses by the Building Division. Public Works
Department,
Development Services
Division
6 All existing structures shall be demolished. The developer shall obtain a
demolition permit from the Building Division.
Public Works
Department,
Development Services Division
7 Tract Map No. 17959 shall be approved, in substantial conformance with Planning Commission resolution for this project.
Public Works Department, Development Services
Division
8 A maintenance covenant shall be submitted to the Subdivision Section and
approved by the City Attorney's office. The covenant shall include
provisions for maintenance of the entire access road and of private facilities
such as private sewer, private drives, and private storm drain improvements;
Public Works
Department,
Development Services
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NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
compliance with approved Water Quality Management Plan; and a
maintenance exhibit. Maintenance responsibilities shall include all drainage
devices, sewer, parkway landscaping and irrigation, and the access road,
including “No Parking” along the west boundary of the access road. The
covenant shall be recorded concurrently with the final map.
Division
9 That prior to final map approval, street improvement plans shall be submitted for improvements along the frontage of Anaheim Hills Road and La Paz Way. Improvements shall conform to the City Standards and as approved by
the City Engineer. Landscaping and irrigation shall be installed on the public
and the private drives as required connected to the onsite system. Prior to
final map approval, a bond shall be posted in an amount approved by the City Engineer and in a form approved by the City Attorney.
Public Works Department, Development Services
Division
10 The developer shall submit street improvement plans, obtain a right of way construction permit, and post a security (Performance and Labor &
Materials Bonds) in an amount approved by the City Engineer and in a form
approved by the City Attorney for the construction of all required public
improvements within the City street right of way of Anaheim Hills Road
and La Paz Way. Improvements shall conform to the applicable City Standards and as approved by the City Engineer.
Public Works Department,
Development Services
Division
11 The legal property owner shall post a security and execute a Subdivision
Agreement to complete the required public improvements at the legal
owner’s expense in an amount approved by the City Engineer and in a form
approved by the City Attorney. Said agreement shall be submitted to the
Public Works Department, Subdivision Section for approval by the City Council.
Public Works
Department,
Development Services
Division
GENERAL
12 The applicant shall defend, indemnify, and hold harmless the City and its
officials, officers, employees and agents (collectively referred to individually and collectively as “Indemnities”) from any and all claims,
actions or proceedings brought against Indemnities to attack, review, set
aside, void, or annul the decision of the Indemnities concerning this permit
or any of the proceedings, acts or determinations taken, done, or made
prior to the decision, or to determine the reasonableness, legality or validity of any condition attached thereto. The Applicant’s
indemnification is intended to include, but not be limited to, damages, fees
and/or costs awarded against or incurred by Indemnities and costs of suit,
claim or litigation, including without limitation attorneys’ fees and other
costs, liabilities and expenses incurred by Indemnities in connection with such proceeding.
Planning and Building
Department,
Planning Services
Division
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NO. CONDITIONS OF APPROVAL RESPONSIBLE DEPARTMENT
13 Conditions of approval related to each of the timing milestones above shall
be prominently displayed on plans submitted for permits. For example,
conditions of approval that are required to be complied with prior to the
issuance of building permits shall be provided on plans submitted for
building plan check. This requirement applies to grading permits, final maps, street improvement plans, water and electrical plans, landscape
irrigation plans, security plans, parks and trail plans, and fire and life
safety plans, etc.
Planning and Building
Department,
Planning Services
Division
14 The applicant is responsible for paying all charges related to the processing of this discretionary case application within 30 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 may result in the revocation of the approval of this application.
Planning and Building Department,
Planning Services
Division
15 The subject Property shall be developed substantially in accordance with
plans and specifications submitted to the City of Anaheim by the applicant and which plans are on file with the Planning Department, and as
conditioned herein.
Planning and Building
Department,
Planning Services
Division
[DRAFT] ATTACHMENT NO. 7
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RESOLUTION NO. PC2016-***
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ANAHEIM RECOMMENDING THAT THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT NO. 2016-
00003 BY AND BETWEEN THE CITY OF ANAHEIM AND
SAGECREST, LLC, A CALIFORNIA LIMITED LIABILITY
COMPANY, AND MAKING FINDINGS IN CONNECTION THEREWITH. (DEVELOPMENT AGREEMENT NO. 2016-00003)
(DEV2015-00101)
WHEREAS, pursuant to the authority set forth in Section 65867 of the California Government Code and the general authority set forth in Section 65864 et seq. of the Government Code (the “Development Agreement Act”), the City’s inherent power as a charter city, and the
Development Agreement Act implementing procedures adopted by the City in Resolution
No. 82R-565 (the “Procedures Resolution”), the City of Anaheim received a verified petition
from Sagecrest. LLC, (the "Developer"), requesting that the City consider and approve a Development Agreement in the form of Development Agreement No. 2016-00003 and in conjunction with the Owner's application for the following additional entitlements, which,
together with Development Agreement No. 2016-00003, are intended to permit the demolition of
the existing buildings and tennis courts on that certain real property located at 415 South
Anaheim Hills Road in the City of Anaheim, County of Orange, State of California and generally depicted on the map attached hereto as Exhibit A, and the development of a 60-unit attached, single-family residential townhome project (the "Project"):
(1) General Plan Amendment No. 2015-00505;
(2) Reclassification No. 2015-00284;
(3) Conditional Use Permit No. 2015-05832; and
(4) Tentative Tract Map No. 17959
WHEREAS, General Plan Amendment No. 2015-00505, Reclassification No. 2015-
00284, Conditional Use Permit No. 2016-05832, Tentative Tract Map No. 17959 and
Development Agreement No. 2016-00003 shall be referred to herein collectively as the "Proposed Entitlements"; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
“CEQA”), the State of California Guidelines for the Implementation of the California Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "CEQA Guidelines"), and the City's Local CEQA
Procedure Manual, the City is the "lead agency" for the preparation and consideration of
environmental documents for the Proposed Project; and
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WHEREAS, a draft Mitigated Negative Declaration was prepared in accordance with
CEQA, the CEQA Guidelines and the City's Local CEQA Procedure Manual to evaluate the
physical environmental impacts of the Proposed Project; and
WHEREAS, in conformance with CEQA and the CEQA Guidelines, a Mitigation Monitoring Plan has been prepared for the Proposed Project and includes mitigation measures
that are specific to the Proposed Project (herein referred to as "MMP No. 333"). A complete
copy of MMP No. 333 is on file and can be viewed in the Planning Services Division of the City;
and WHEREAS, on June 13, 2016, the Planning Commission did hold a public hearing,
notice of said public hearing having been duly given as required by law and in accordance with
the provisions of Chapter 18.60 of the Code, to hear and consider evidence and testimony
concerning the contents and sufficiency of the Mitigated Negative Declaration and for and against the Proposed Entitlements and the Project and to investigate and make findings in connection therewith; and
WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the
adoption of this Resolution and pursuant to the provisions of CEQA, the State CEQA Guidelines, and the City's Local CEQA Procedure Manual, this Planning Commission found and determined and recommended that the City Council also find and determine that the Proposed Project will
have a less than significant impact upon the environment with the implementation of the
conditions of approval and the mitigation measures attached to that concurrent Resolution and
contained in MMP No. 333 and that the City Council approve and adopt the Mitigated Negative Declaration and MMP No. 333; and
WHEREAS, this Planning 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 testimony,
evidence and reports offered at said hearing, does find and determine that the proposed Development Agreement No. 2016-00003, in the form presented at this meeting, meets all of the standards and requirements set forth in the Procedures Resolution, that is:
1. The proposed Development Agreement No. 2016-00003 is consistent
with the General Plan and with the goals, policies, programs and objectives specified in the General Plan;
2. The proposed Development Agreement No. 2016-00003 is compatible
with the uses authorized in, and the regulations prescribed for, the applicable zoning
district(s) in which the Project is and will be located; 3. The proposed Development Agreement No. 2016-00003 is compatible
with the orderly development of property in the surrounding area;
4. The proposed Development Agreement No. 2016-00003 is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim; and
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5. The proposed Development Agreement No. 2016-00003 constitutes a
lawful, present exercise of the City’s police power and authority under, is entered
into pursuant to, and is in compliance with the City’s charter powers, the requirements of the Development Agreement Act and the Procedures Resolution.
WHEREAS, this Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the actions taken and the findings made in this
Resolution, that the facts stated in this Resolution are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentation, the staff report and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. This Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due
consideration of all evidence presented to it. NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and
determinations and based upon a thorough review of proposed Development Agreement No.
2016-00003, the Mitigated Negative Declaration, and the evidence received to date, does hereby
approve and recommends that the City Council approve Development Agreement No. 2016-00003, in the form presented at this meeting, contingent upon and subject to the approval of (1) the other Proposed Entitlements, specifically, General Plan Amendment No. 2015-00505,
Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Tentative Tract
Map No. 17959, now pending; (2) the mitigation measures set forth in Mitigation Monitoring
Plan No. 333 for the Project; and (3) the conditions of approval set forth as Exhibit A to this Resolution, which are hereby found to be a necessary prerequisite to the proposed use of the
Property in order to preserve the health, safety and general welfare of the citizens of the City of
Anaheim. 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.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
June 13, 2016.
CHAIR, PLANNING COMMISSION OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
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STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do
hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016.
SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM
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RECORDING REQUESTED BY AND, WHEN RECORDED, RETURN TO:
City Clerk City of Anaheim
P.O. Box 3222
Anaheim, California 92805
(SPACE ABOVE FOR RECORDER’S USE)
DEVELOPMENT AGREEMENT NO. 2016-00003
BETWEEN
CITY OF ANAHEIM
AND
SAGECREST, LLC
ATTACHMENT NO. 7
TABLE OF CONTENTS
Page
i
1. DEFINITIONS ............................................................................................................... 2
2. PROPERTY, PURPOSE AND INTENT ...................................................................... 6
2.1 Property Description .......................................................................................... 6
2.2 City Objectives................................................................................................... 6
2.3 Developer Objectives ......................................................................................... 7
2.4 Mutual Objectives .............................................................................................. 7
3. AGREEMENT AND ASSURANCES .......................................................................... 7
3.1 Agreement and Assurance on the Part of Developer ......................................... 7
3.2 Agreement and Assurances on the Part of the City ........................................... 7
3.2.1 Entitlement to Development .................................................................. 7
3.2.2 Changes in Applicable Rules ................................................................. 7 3.2.3 Agreed Changes and Other Reserved Powers ....................................... 8
3.2.4 Subsequent Development....................................................................... 8
3.2.5 Effective Development Standards.......................................................... 8
3.2.6 Timing and Sequencing of Development .............................................. 9
3.2.7 Impact Fees; Credit for Developer Installed Facilities .......................... 9 3.3 Processing Fees; Extraordinary Processing Consultant Charges and
Environmental Review....................................................................................... 9
3.3.1 Processing Fees and Charges ................................................................. 9
3.3.2 Extraordinary Processing Consultant ..................................................... 9
3.3.3 Environmental Review......................................................................... 10
4. DEVELOPMENT PLAN............................................................................................. 10
4.1 Vested Right to Develop Property ................................................................... 10
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC
PERFORMANCE ........................................................................................................ 10
5.1 Annual Review................................................................................................. 10 5.2 Reimbursement of Costs .................................................................................. 10
5.3 Default by Developer ....................................................................................... 10
5.3.1 Default.................................................................................................. 10
5.3.2 Notice of Default.................................................................................. 10
5.3.3 Termination for Failure to Cure Default .............................................. 11 5.3.4 Specific Performance ........................................................................... 11
5.3.5 Damages ............................................................................................... 11
5.4 Default by City ................................................................................................. 12
5.4.1 Notice of Default.................................................................................. 12
5.4.2 Specific Performance and Mandamus ................................................. 12
6. PUBLIC BENEFITS .................................................................................................... 12
6.1 Increase in Property Taxes ............................................................................... 12
6.2 Recreational Amenities Payment ..................................................................... 12
ii
7. GENERAL PROVISIONS .......................................................................................... 13
7.1 Date Agreement Becomes Effective ................................................................ 13
7.2 Term ................................................................................................................. 13
7.2.1 Basic Term ........................................................................................... 13 7.2.2 Early Termination of Agreement ......................................................... 13
7.2.3 Automatic Termination of Agreement ................................................. 13
7.2.4 Effect of Termination ........................................................................... 13
7.3 Force Majeure .................................................................................................. 13
7.4 Applicable Law ................................................................................................ 14 7.5 Amendments .................................................................................................... 14
7.6 Assignment ...................................................................................................... 14
7.6.1 Right to Assign .................................................................................... 14
7.7 Mortgage Rights............................................................................................... 14
7.7.1 Encumbrances on the Property and this Agreement ............................ 14 7.7.2 Mortgagee Protection ........................................................................... 15
7.7.3 Mortgagee Not Obligated .................................................................... 15
7.7.4 Notice of Default to Mortgagee ........................................................... 15
7.7.5 Bankruptcy ........................................................................................... 16
7.7.6 Termination Subject to Mortgagee Rights ........................................... 16 7.7.7 No Cancellation ................................................................................... 16
7.7.8 New Agreement Upon Default by Developer ...................................... 16
7.7.9 Separate Agreement ............................................................................. 17
7.7.10 Material Notices ................................................................................... 17
7.7.11 Mortgagee Right to Assign .................................................................. 17 7.8 Covenants ......................................................................................................... 17
7.9 Implementation ................................................................................................ 17
7.10 Relationship of the Parties ............................................................................... 18
7.11 Cooperation in the Event of Third Party Litigation ......................................... 18
7.12 Notices ............................................................................................................. 18 7.13 Recordation ...................................................................................................... 19
7.14 Developer Hold Harmless ................................................................................ 19
7.15 Successors and Assigns.................................................................................... 19
7.16 Severability ...................................................................................................... 19
7.17 Waiver .............................................................................................................. 20 7.18 Third Party Beneficiaries ................................................................................. 20
7.19 Expedited Processing ....................................................................................... 20
7.20 Requests for Payment ...................................................................................... 20
7.21 Entire Agreement ............................................................................................. 20
7.22 Conflict of Laws .............................................................................................. 20 7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents ......... 20
7.24 Counterparts ..................................................................................................... 21
7.25 Organization and Standing of Developer ......................................................... 21
1
DEVELOPMENT AGREEMENT NO. 2016-00003 BY AND BETWEEN THE CITY OF ANAHEIM
AND SAGECREST, LLC
THIS DEVELOPMENT AGREEMENT NO. 2016-00003 (“Agreement”) is made and entered into as of this _____ day of ________ 2016, by and between the CITY OF ANAHEIM, a
charter city and a municipal corporation duly organized and existing under the Constitution and
the laws of the State of California (“City”), and SAGECREST, LLC, a California limited
liability company (“Developer”), pursuant to the authority set forth in Section 65867 of the
California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code (the “Development Agreement Act”), the City’s inherent power as a charter
city, and the Development Agreement Act implementing procedures adopted by the City in
Resolution No. 82R-565 (the “Procedures Resolution”). The definitions contained in Section 1
shall apply to the entire Agreement, including the following RECITALS.
RECITALS
A. Developer represents that it is under contract to acquire fee title to the Property,
and thus has an equitable interest in the Property. Developer has proposed development of the
Project, as defined below and depicted on the Site Map (Exhibit A to this Agreement).
B. The development of the Project by the Developer will provide sixty (60) new
townhome dwelling units within the City’s “RM-1” Multiple-Family Residential Zone and the Scenic Corridor (SC) Overlay Zone, which will result in certain public benefits to the City; and
C. The Project will provide development fees, certain public infrastructure, private
parking and other facilities needed to support the Project; and
D. Developer, in consideration of the benefits and opportunities provided to
Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, will provide assurances to the City that the public infrastructure, amenities
and design features of the Project are implemented in a timely manner as set forth in the Existing
Approvals; and
E. In order to provide certainty and render development of the Project more feasible
in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements contained
in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented
or burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and
F. Developer also recognizes and agrees that in extending these benefits to
Developer, the City must retain the Reserved Powers; and
G. Concurrently with or prior to approval of this Agreement, the City has approved
the following other Project Approvals applicable to the Project, which are hereinafter
collectively referred to as the “Existing Approvals”:
(1) General Plan Amendment No. 2015-00505;
2
(2) Reclassification No. 2015-00284;
(3) Conditional Use Permit No. 2015-05832; and
(4) Tentative Tract Map No. 17959.
H. City and Developer desire to enter into this Agreement in order to assure development of the Property in accordance with the Existing Approvals and provide for vesting
of same for the Term of the Agreement, and to assure the City of installation of the design
features of the Project and public infrastructure in accordance herewith and as described in the
Existing Approvals; and
I. On June 13, 2016, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the
conclusion of such hearing, and after consideration of evidence and testimony submitted by City
staff, the Developer and all interested parties, adopted a Resolution recommending that the City
Council approve this Agreement; and
J. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City’s General Plan, and the MND satisfies all requirements of the California
Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and
the Project; and
K. On ________________, 2016, the City Council held a duly noticed public hearing
regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City
staff, the Developer and all other interested parties, introduced Ordinance No. _____ approving
this Agreement on ______________, 2016, and adopted Ordinance No. _____ on
______________, 2016 (herein referred to as the "Authorizing Ordinance").
NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
1.1 “Affiliate of Developer” or “Affiliate” means a sole proprietorship, limited
liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by
the Developer.
1.2 “AMC” means the Anaheim Municipal Code.
1.3 “Annual Review” means the annual review process as described in
Section 5 of this Agreement.
1.4 “Applicable Rules” means (subject only to the qualifications set forth
herein with respect to Fees and excluding the Reserved Powers) the rules, regulations,
3
ordinances and officially adopted plans and policies of the City in force as of the Effective Date,
including without limitation, the Existing Approvals. Notwithstanding this Section 1.4 or any
other provision of this Agreement (i) all duly adopted codes, regulations, specifications and
standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for
approval and/or under construction, and (ii) except as expressly set forth in this Agreement with
respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable
Rules shall mean and include only those Fees in effect as of the Effective Date.
1.5 “CEQA” means the California Environmental Quality Act (Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs.,
Title 14, section 15000 et seq.) and City CEQA Guidelines.
1.6 “City Agency” means each and every agency, department, board.
Commission, authority, employee, and/or official acting under the authority of the City that have
permit, entitlement or approval authority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission.
1.7 “City Attorney” means the City Attorney of the City.
1.8 “City Council” means the City Council of the City.
1.9 “City Manager” means the City Manager of the City.
1.10 “Conditions of Approval” means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals.
1.11 “Discretionary Action” means an action which requires the exercise of
judgment, deliberation or a decision on the part of the City and/or any City Agency in the
process of approving or disapproving a particular activity, as distinguished from an activity
which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any
Ministerial Permits and Approvals.
1.12 “Effective Date” means the effective date of the Authorizing Ordinance.
1.13 “Existing Approvals” means those approvals described in Recital G.
1.14 “Extraordinary Processing Consultant” means a consultant selected by the City to coordinate and expedite processing of applications for all or any Ministerial Permits and
Approvals and all or any Discretionary Actions applicable to the Project at the expense of
Developer.
1.15 “Fees” means any fees or charges imposed or collected by the City as of
the Effective Date other than (i) Impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City.
1.16 “Final Map” means the final map for the Project.
4
1.17 “General Plan” means the General Plan of the City.
1.18 “Impact Fees” means impact fees, linkage fees, exactions, fair share
charges or other similar impact fees or charges imposed on and in connection with new
development on a city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. Impact Fees shall not include Processing Fees and Charges, the
Recreational Amenities Payment, taxes or special assessments.
1.19 “Inspections” means all field inspections and reviews by City officials
during the course of construction of the Project and the processing of certificates of occupancy
(permanent or temporary).
1.20 “Institutional Lender” means any of the following institutions having
assets or deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000):
a California chartered bank; a bank created and operated under and pursuant to the laws of the
United States of America; an “incorporated admitted insurer” (as that term is used in
Section 1100.1 of the California Insurance Code); a “foreign (other state) bank” (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan
association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of
Sections 2600 et seq. of the California Financial Code); a “foreign (other nation) bank” provided
it is licensed to maintain an office in California, is licensed or otherwise authorized by another
state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); a bank holding company or
a subsidiary of a bank holding company which is not a bank (Section 3707 of the California
Financial Code); a trust company, savings and loan association, insurance company, investment
banker; college or university; pension or retirement fund or system, either governmental or
private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state
thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue
Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange
or the New York Stock Exchange.
1.21 ““Legal Description” means the legal description of the Property attached hereto as Exhibit B and incorporated herein by reference.
1.22 “Litigation” means any lawsuit (including a cross-action) filed against the
City and/or Developer which challenges the validity, implementation or enforcement of, or seeks
any other remedy directly relating to, all or any party of the Existing Approvals or this
Agreement.
1.23 “MND” means the Mitigated Negative Declaration Development prepared to evaluate the physical environmental impacts of the Project Number 2015-00101.
1.24 “Ministerial Permits and Approvals” means the nondiscretionary permits,
approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or
approved by the City in order for Developer to implement, develop and construct the Project and
5
the Mitigation Measures, including without limitation, building permits, and other similar
permits and approvals.
1.25 “Mitigation Measures” means those Mitigation Measures set forth in that
certain Mitigation Monitoring Plan No. 333 for the Project.
1.26 “Mortgage” means an instrument or instruments securing one or more
financings by the Developer with respect to the construction, development, use or operation of
the Project, and includes whatever security instruments are used in the locale of the Project,
including, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as
well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code.
1.27 “Mortgagee” means one or more Institutional Lenders holding a beneficial
interest and secured position under any Mortgage which have notified City, in writing, of its
request for notice under the provision of Section 7.7 hereof.
1.28 “Official Records” means the Official Records of Orange County, California.
1.29 “Parties” means collectively the Developer and the City.
1.30 “Party” means any one of the Developer or the City.
1.31 “Plaintiff’ means any party seeking relief or compensation through
Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise.
1.32 “Planning Commission” means the Planning Commission of the City.
1.33 “Planning Director” means the Planning and Building Director of the City.
1.34 “Processing Fees and Charges” means all processing fees and charges
required by the City including, but not limited to, fees and charges for land use applications,
Project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy
and other similar permits. Processing Fees and Charges shall not include Impact Fees.
1.35 “Project” means the development on the Property of sixty (60) townhome
dwelling units and associated community space, as more specifically described in the Existing
Approvals and as shown on the Site Map.
1.36 “Project Architect” means the architect designated by the Developer as
responsible for the design and construction supervision of the Project.
1.37 “Property” means that real property Developer is under contract to
purchase, which is legally described in Exhibit B hereto.
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1.38 “Public Improvements” means the facilities to be improved, constructed
and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the
City by the Developer. Public Improvements include sidewalks, all public utilities within the
streets (such as electricity and water, but excluding any non-municipal utilities), paths in the public right-of-way, off-site intersection improvements (including but not limited to curbs, curb
ramps, medians, signaling, traffic controls devices, signage, and striping), and all other
improvements delineated on street improvement plans approved by the City Engineer for the
Project during the pendency of the Project.
1.39 “Recreational Amenities Payment” means a payment to be made by Developer to the City in the amount of Two Hundred Thousand Dollars ($200,000) for use by
City to provide park and recreational facilities.
1.40 “Reserved Powers” means the rights and authority excepted from this
Agreement’s restrictions on the City’s police powers which are reserved to the City. The
Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective
Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy
conditions which the City has found to be injurious or detrimental to the public health or safety;
(2) are Uniform Codes; (3) are necessary to comply with state and federal laws, rules and
regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (4) are agreed to or consented to by
Developer; (5) involve the formation of assessment districts, Mello-Roos Community Facilities
Districts, special districts, maintenance districts or other similar districts formed in accordance
with applicable laws provided, however, that Developer shall retain all its rights with respect to
such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City-wide fees or charges of general applicability.
1.41 “Section” means the indicated section or subsection number of this
Agreement.
1.42 “Site Map” means the map of the Property which is attached thereto as
Exhibit A and incorporated herein by reference.
1.43 “Term” means the period of time during which this Agreement shall be in
effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement.
1.44 “Uniform Codes” means those building, electrical, mechanical, fire and
other similar regulations which are applicable throughout the City, including, but not limited to,
the California Building Standards Codes, as adopted by the City Council and codified in Chapter 15.03 (Building Standards Codes and Administrative Provisions Pertaining to Building and
Construction) of Title 15 (Buildings and Housing) of the AMC, and the California Fire Code, as
adopted by the City Council and codified in Chapter 16.08 (California Fire Code) of Title 16
(Fire) of the AMC, as the same may be amended from time to time by the City.
2. PROPERTY, PURPOSE AND INTENT.
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2.1 Property Description. The Property is shown on the Site Map and
described in the Legal Description.
2.2 City Objectives. The City desires that the Property be developed as
provided for in the Existing Approvals to: (i) create new general fund revenues in excess of the incremental City costs associated with the Project, (ii) provide for the payment by the Developer to the City of the Recreational Amenities Payment, (iii) provide a fully integrated and
coordinated development based on comprehensive planning principles; and (iv) to the extent
Developer proceeds with the Project, to assure that the Project will be developed as described in
the Existing Approvals.
2.3 Developer Objectives. This Agreement is necessary to assure Developer
that (i) the Project will not be reduced in density, intensity or use; and (ii) the Project will not be
subjected to new rules, regulations, ordinances, or official policies or delays which are not
permitted by this Agreement.
2.4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance
with the goals and objectives set forth in the General Plan. Moreover, this Agreement provides
additional assurance to the City and Developer that, should Developer proceed with the Project,
the installation of necessary improvements will occur in the manner set forth in the Existing
Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated development of the
Project will provide many public benefits to the City, including without limitation: delivery by
the Developer to the City of the Recreational Amenities Payment, and development of under-
utilized properties and uses.
3. AGREEMENT AND ASSURANCES.
3.1 Agreement and Assurance on the Part of Developer. In consideration for
the City entering into this Agreement, and as an inducement for the City to obligate itself to carry
out the covenants and conditions set forth in this Agreement, and in order to effectuate the
purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with
the Project, Developer hereby agrees to (i) develop the Project consistent with the Existing Approvals, and (ii) deliver to the City the Recreational Amenities Payment, by the time set forth
therefor in Section 6.2 of this Agreement.
3.2 Agreement and Assurances on the Part of the City. In consideration for
Developer entering into this Agreement and delivery of the Recreational Amenities Payment and
provision of other public benefits, as further set forth in Section 6 below, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this
Agreement, the City hereby agrees during the term as follows:
3.2.1 Entitlement to Development. Developer has a vested right to
develop the Project in accordance with the Existing Approvals subject to the terms and
conditions of this Agreement, the Applicable Rules and the Reserved Powers. City shall not revoke or modify the Existing Approvals.
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3.2.2 Changes in Applicable Rules.
3.2.2.1 Non-Application of Changes in Applicable Rules.
Any change in, or addition to, the Applicable Rules, including, without limitation, any
change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum,
resolution, motion, policy, order or moratorium, initiated or instituted for any reason
whatsoever and adopted by the City Council, Planning Commission or City Agency, or
by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise
of the City’s Reserved Powers or are otherwise expressly allowed by this Agreement or
consented to in writing by Developer.
3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with
changes occurring from time to time in the Uniform Codes pursuant to the Reserved
Powers.
3.2.2.3 Changes Mandated by Federal or State Law. This
Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be
modified or suspended as may be necessary to comply with such state or federal laws or
regulations.
3.2.2.4 Special Taxes and Assessments. Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against any and
all special taxes, assessments, levies, charges and/or fees imposed with respect to any
assessment districts, Mello-Roos Community Facilities Districts, maintenance districts or
other similar districts which would include the Property or the Project.
3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially
adopted plans and policies otherwise in conflict with the Applicable Rules if (i) agreed to in
writing by Developer, or (ii) result from the Reserved Powers.
3.2.4 Subsequent Development. The City shall not require Developer to
obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers.
3.2.5 Effective Development Standards. The City agrees that with
respect to the Project it is bound to permit development of the Project in accordance with the
Existing Approvals including without limitation, the uses, intensity and density as permitted by
the Existing Approvals, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary
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Action which must be issued by the City in order for the Project to proceed, provided that
Developer reasonably and satisfactorily complies with all City-wide standard procedures and
policies of the City for processing any such Discretionary Action and pays any applicable
Processing Fees and Charges. The 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 Agreement,
3.2.6 Timing and Sequencing of Development. The Project shall be
completed in one construction phase, including all general grading, site preparation, utility lines
and infrastructure. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates,
competition and other similar factors. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo (1984) 37 Cal.3d 455, that the failure of the parties therein
to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the Parties’ intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to
develop the Property, or to not develop the Property, in such order and such rate and at such time
as Developer deems appropriate within the exercise of its subjective business judgment in its sole
and absolute discretion; provided, however, that upon commencement of any work related to the development or construction of the Project, or any portion thereof, the Developer shall diligently
prosecute the same to completion without substantial interruption in accordance with applicable
permits and requirements under this Agreement, subject to Force Majeure. In the event an
ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of
the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the
implementation or construction of the Mitigation Measures, City agrees, to the maximum extent
permitted by law, that such ordinance, resolution or other measure shall not apply to the Project,
the Property or this Agreement, unless such changes are adopted pursuant to the City’s exercise
of its Reserved Powers or other applicable provisions of this Agreement.
3.2.7 Impact Fees; Credit for Developer Installed Facilities. The Project
shall be subject to the Impact Fees and crediting provisions related thereto in force at the time of
application and as may be amended from time to time and are not restricted or limited in any way
by this Agreement. Nothing contained herein shall be construed to prohibit the City from
imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project.
3.3 Processing Fees; Extraordinary Processing Consultant Charges and
Environmental Review.
3.3.1 Processing Fees and Charges. Developer shall pay all Processing
Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought.
3.3.2 Extraordinary Processing Consultant. Developer may request that
the City engage an Extraordinary Processing Consultant to coordinate and expedite the
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processing of actions required through the Ministerial Permits and Approvals and all
Discretionary Actions applicable to the Project. If so requested and the City deems it necessary,
in its sole discretion, it will engage such Extraordinary Processing Consultant and the Developer
shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7.20 hereof.
3.3.3 Environmental Review. The City has conducted extensive
environmental review of the Project and has adopted the Mitigation Measures. The City intends
that Ministerial Permits and Approvals are not actions subject to requirements for further
environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
4.1 Vested Right to Develop Property. Subject to the terms of this
Agreement, Developer shall have a vested right to develop the Property in accordance with, and
to receive the benefits set forth and provided in, the Existing Approvals. In the absence of a
default by Developer, City shall not revoke, rescind, impede or thwart any of the Existing Approvals.
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC
PERFORMANCE.
5.1 Annual Review. During the Term and so long as this Agreement is in
effect, Developer shall initiate and the City shall conduct an Annual Review of Developer’s compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement.
The Annual Review shall be initiated and conducted in accordance with the Procedures
Resolution.
5.2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City’s Procedures Resolution on each
occasion that Developer submits its evidence for the Annual Review. Developer shall also
reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or
financing consultant cost necessary to accomplish review of amendments pursuant to Section 7.5
of this Agreement. Such reimbursement shall be due within thirty (30) days after receipt of invoice from the City.
5.3 Default by Developer.
5.3.1 Default. In the event the City reasonably determines that
Developer has failed to perform any of its obligations under this Agreement, or that any such
obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City’s right to compel
specific performance of the obligations of Developer under this Agreement shall be subject to the
limitations set forth in Section 5.3.4. Further, the City shall have no right to monetary damages
except as set forth in Section 5.4.2.
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5.3.2 Notice of Default. In the event the City reasonably determines that
Developer is in default of any of its obligations under this Agreement, the City shall send a
notice of such alleged default(s) to Developer in which the allegations of default shall be set
forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence
to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in
no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any
monetary default(s) not later than thirty (30) days after the receipt of such notice of default, and
(ii) any non-monetary default(s) not later than ninety (90) days after the receipt of such notice of default or such longer period as necessary to cure default as agreed to by City in its sole
discretion. The Parties may mutually agree in writing to extend the time periods set forth in this
Section.
5.3.3 Termination for Failure to Cure Default. If after the cure period
provided for in Section 5.3.2 has lapsed and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or
terminate this Agreement in accordance with the Procedures set forth in Sections 7.2 and 7.3 of
the Procedures Resolution.
5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City shall have no right under this Agreement to seek a remedy of specific performance with
respect to the Project in the event of an abandonment of the Project after construction has
commenced. The City’s right to seek specific performance to compel completion of the Project
(including portions of the Project) in the event of such abandonment after construction has
commenced shall be specifically limited to (i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public
property initiated in connection with the Project with the choice of whether to demolish or
complete such improvements and the method of such demolition or completion of such
improvements to be selected by the City in its sole discretion, and (ii) compelling Developer, at
the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish,
complete or secure such improvements and the method of such demolition, completion and
securing of such improvements to be selected by Developer in its sole discretion. The City's
specific performance remedy shall include the right to require dedication to the City of the
improvements located on public property upon completion together with conveyance of real property as contemplated by this Agreement. Prior to Commencement of Construction,
Developer shall post a performance bond or other security in an amount and form reasonably
satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted
improvements located on public property and/or located on the Property. The Developer’s
contractor's performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptable to City. Nothing in this Section 5.3.4 shall limit the
City’s enforcement of all applicable provisions of the Applicable Rules, Existing Approvals,
Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter
constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to
serve the Project actually completed), termination of this Agreement in accordance with the
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provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in
any way the City’s monetary remedies as provided for in Section 5.4.2 hereof.
5.3.5 Damages. The City shall have the right to recover (1) actual
damages only (and not consequential, punitive or special damages, each of which is hereby expressly waived) for (a) the Developer’s failure to pay sums to the City as and when due under this Agreement, but subject to any express conditions for such payment set forth in this
Agreement, and (b) the Developer’s failure to make payment due under any indemnity in this
Agreement, (2) any and all damages relating to the Developer's failure to construct Public
Improvements in accordance with City-approved plans and specifications and in accordance with all applicable laws (but only to the extent that the City first collects against any security, including but not limited to bonds, for such Public Improvements), and (3) attorney's fees and
costs when awarded by an arbitrator or a court with jurisdiction. For purposes of the foregoing,
“actual damages” shall mean the actual amount of the sum due and owing under this Agreement,
with interest as provided by law, together with such judgment collection activities as may be ordered by the judgment and no additional sums.
5.4 Default by City.
5.4.1 Notice of Default. In the event the Developer reasonably
determines that the City is in default of any of its obligations under this Agreement, the
Developer shall send a notice of such alleged default(s) to the City in which the allegations of default shall be set forth in sufficient detail to enable the City to ascertain the specific actions
necessary to cure the alleged default(s). Upon receipt of written notice of default from
Developer, the City shall promptly commence to cure the identified default(s) at the earliest
reasonable time after receipt of the notice of default and shall complete the cure of such
default(s) not later than sixty (60) days after receipt of the notice of default or such longer period as necessary to cure default as agreed to by the Developer in its sole discretion. The Parties may
mutually agree in writing to extend the time periods set forth in this Section.
5.4.2 Specific Performance and Mandamus. It is acknowledged by the
Parties that the City would not have entered into this Agreement if it were to be liable in
damages under or with respect to this Agreement or the application thereof. In addition, the Parties agree that monetary damages are not an adequate remedy for Developer if the City should
be determined to be in default under this Agreement. The Parties further agree that specific
performance and mandamus shall be Developer’s only remedies under this Agreement and
Developer may not seek monetary damages in the event of a default by the City under this
Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement (including without limitation special, incidental or
consequential damages) and expressly waives its right to recover damages under this Agreement.
Developer may seek specific performance of City’s obligations under this Agreement or a writ of
mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as applicable, to compel
the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged
default(s) on City and lapse of the period given for City to cure such default(s), all in accordance
with Section 5.4.1, and for so long as City remains in default of its obligations under this
Agreement.
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6. PUBLIC BENEFITS.
6.1 Increase in Property Taxes. The Project will generate significant
additional property taxes.
6.2 Recreational Amenities Payment. Developer shall deliver to the City the Recreational Amenities Payment in the amount of Two Hundred Thousand and No/100 Dollars
($200,000.00), which payment shall be paid to the City prior and as a condition precedent to the
City’s approval of the Final Map. Said amount shall be used by the City, in its sole discretion, to
fund certain public park and recreational improvements which may be constructed by the City
near the Project.
7. GENERAL PROVISIONS.
7.1 Date Agreement Becomes Effective. This Agreement shall become
effective on the Effective Date.
7.2 Term.
7.2.1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of five (5) years after the
Effective Date, unless extended or earlier terminated as provided herein.
7.2.2 Early Termination of Agreement. This Agreement is terminable:
(i) by mutual written agreement of the Parties; or (ii) by either Party following an uncured
default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance
of a final order, after all appeals have been exhausted, directed to the City as a result of any
lawsuit filed against the City to set aside, withdraw or abrogate the approval of the City Council
of this Agreement; or (iv) if termination occurs pursuant to the provisions of the Procedures
Resolution and such termination is so intended thereby.
7.2.3 Automatic Termination of Agreement. If not already terminated
by reason of any other provision in this Agreement, or for any other reason, this Agreement shall
automatically terminate and be of no further force and effect upon completion of the Project
pursuant to the terms of this Agreement and any further amendments thereto and the issuance of
all occupancy permits and acceptance by the City of all dedications and improvements as required by the development of the Project.
7.2.4 Effect of Termination. Following expiration of the Term, early
termination pursuant to Section 7.2.2 above, or automatic termination pursuant to Section 7.2.3,
this Agreement shall be of no further force and effect, except for any provisions which, by their
express terms, survive the expiration or termination of this Agreement.
7.3 Force Majeure: Extension of Time of Performance. In addition to
specific provisions of this Agreement, whenever a period of time is designated within which
either Party hereto is required to do or complete any act, matter or thing, both the time for the
doing or completion thereof and the Term of this Agreement and the specific obligation
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hereunder shall be extended by a period of time equal to the number of days which such Party is
prevented from, or is unreasonably interfered with the doing or completion of such act, matter or
thing because of the following causes, which causes are beyond the reasonable control of the
Party to be excused including: war, terrorist acts, insurrection; strikes; walk-outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; Litigation and administrative proceedings
which are brought against the Project by a third party (not including any administrative
proceedings contemplated by this Agreement in the normal course of affairs such as the Annual
Review); restrictions imposed or mandated by other governmental entities (“Governmental
Restrictions”); enactment of conflicting state or federal laws or regulations (“Conflicting Laws”); judicial decisions (“Judicial Decisions”); or similar bases for excused performance which is not
within the reasonable control of the Party to be excused (financial inability excepted). This
Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of
Developer or, if not dismissed within ninety (90) days, by any third parties against Developer. A
Party wishing to invoke this Section shall notify in writing the other Party of that intention within thirty (30) days of the commencement of any such cause for delay and shall, at that time, specify
the reasons therefor, the provisions of this Agreement that will be delayed as a result, and the
period of such extension, if known, or, if not known, the party’s best estimate thereof. The
failure to so notify the other Party within that period as to the cause for delay shall constitute a
waiver of any right to later rely upon this Section with respect to that cause. In the event any such extension continues for more than one hundred eighty (180) days, any Party not then in
Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written
notice to the other and, in that event, the Parties shall have no further obligations hereunder.
7.4 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any
federal actions.
7.5 Amendments. This Agreement may be amended from time to time in
writing in accordance with Government Code section 65868 and the Procedures Resolution.
7.6 Assignment.
7.6.1 Right to Assign. Developer 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 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 Developer in the Property (or a portion thereof), which, prior to Developer’s acquisition of fee
title to the Property shall mean and refer to Developer’s equitable interest in the Property. In the
event of any such sale, mortgage, hypothecation, assignment or transfer, (a) Developer shall
notify the 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 Developer and such transferee shall provide that the transferee shall be liable for the performance of all
obligations of Developer pursuant to this Agreement and the Existing Approvals with respect to
Developer’s interest in the Property (or portion thereof) so transferred. Upon the express written
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assumption of any and all of the obligations of Developer under this Agreement by such
transferee, the transfer shall, without any act of or concurrence by the City, relieve Developer of
its legal duty to perform said obligations under this Agreement with respect to Developer’s
interest in the Property (or portion thereof), so transferred, except to the extent Developer is in default under the terms of this Agreement.
7.7 Mortgage Rights.
7.7.1 Encumbrances on the Property and this Agreement. The Parties
hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at
Developer’s sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights herein granted, to grant a Mortgage on its interests in this
Agreement or any part or parts thereof, under one or more Mortgages and to assign this
Agreement as collateral security for any such Mortgage.
7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement
shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and
for value, and any acquisition or acceptance of title or any right or interest in or with respect to
the Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to
foreclosure, lease termination or otherwise) shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, be subject to all of the terms and
conditions of this Agreement and any such Mortgagee who takes title to the Property or any
portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising
under this Agreement.
7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set
forth in this Agreement to perform the obligations of Developer or other affirmative covenants of
Developer hereunder or to guarantee such performance, unless such Mortgagee expressly
assumes the rights and obligations of the Developer and except that (i) the Mortgagee shall upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this
Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition
to the performance of any covenant by the City, the performance thereof shall continue to be a
condition precedent to the City’s performance hereunder. Although not obligated to do so, upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act
or thing which may be necessary and properly done in the performance and observance of the
agreements, covenants and conditions hereof to prevent termination of this Agreement in
accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full
access to the Property for purposes of accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the
same would have been done by the Developer.
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7.7.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City be entitled to receive written notice from the
City of the result of the Annual Review and of any default by Developer of its obligations set
forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety (90) days
after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee
upon obtaining possession of the Property, such Mortgagee shall have the right to seek or obtain
possession with diligence and continuity through a receiver or otherwise, and to remedy or cure
such default within ninety (90) days after obtaining possession, and, except in case of emergency or to protect the public health or safety as determined by the City in its reasonable discretion,
City may not exercise any of its remedies set forth in this Agreement until expiration of such
ninety (90) day period whether commencing upon receipt of notice or upon obtaining possession
of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a
default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90) day period, the Mortgagee shall have such additional
time as is reasonably necessary to remedy or cure such default. Any notice of termination
delivered in violation of this Section 7.7.4 shall be rendered void. In any case where, sixty (60)
days after receipt by the Mortgagee of the notice of the Developer’s default, the holder of any
Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it has exercised the option, is not proceeding diligently with
the cure, the City may proceed with termination of this Agreement and any further obligations of
City hereunder.
7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this
Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding
involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting
foreclosure or other proceedings shall be extended for the period of the prohibition. In addition,
if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreement upon the same terms and conditions set forth in this Agreement may be entered into between such Mortgagee and City.
7.7.6 Termination Subject to Mortgagee Rights. All rights of the City to
terminate this Agreement, vis-a-vis the Mortgagee, as a result of the occurrence of any default
shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy
such default or acquire Developer’s interests hereunder, or having failed to commence
foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7.7.4
above.
7.7.7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety
(90) days prior written notice to each Mortgagee who has requested such notice.
7.7.8 New Agreement Upon Default by Developer. City agrees that in
the event of termination of this Agreement by reason of a default by Developer, the City will
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enter into a new development agreement with the most senior Mortgagee whose Mortgage
encumbers this Agreement requesting a new development agreement for the remainder of the
term of this Agreement, such new agreement being effective as of the date of such termination,
and containing such terms, provisions, covenants and agreements as herein contained, provided:
(a) The senior Mortgagee shall make written request upon City
for such new development agreement within thirty (30) days after the date of termination;
(b) The senior Mortgagee shall pay to the City at the time of
the execution and delivery of such new development agreement any and all sums which would,
at the time of the execution and delivery thereof, be due and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys’ fees and costs, to which the City was
subjected by reason of such default;
(c) The senior Mortgagee shall perform and observe all
covenants herein contained on Developer’s part to be performed, and shall further remedy any
other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that same are curable or may be performed by the senior Mortgagee; and
(d) Notwithstanding anything to the contrary expressed or
implied elsewhere in this Agreement, any new development agreement made pursuant to this
Section shall be superior to any Mortgage to the same extent as this Agreement.
7.7.9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense
of the Developer (including related legal fees incurred by the City), in form satisfactory to each
Mortgagee and City, between City, Developer and the Mortgagee(s), confirming all of the
provisions hereof and/or such other documents containing terms and provisions customarily
required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and
obligations of the City, or otherwise amend this Agreement and/or the obligations of the
Developer as set forth in this Agreement
7.7.10 Material Notices. The Developer shall give all Mortgagees notice
of any Litigation and the parties hereby consent to intervention in such Litigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the
proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made
in connection therewith.
7.7.11 Mortgagee Right to Assign. Foreclosure of any Mortgage, or any
sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its
designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof,
shall not require the consent of the City or constitute a breach of any provision of or a default
under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the
purchaser or other transferee in connection therewith as the Developer hereunder.
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7.8 Covenants. The provisions of this Agreement shall constitute covenants
which run with the land comprising the Property for the benefit thereof and as a burden thereon,
and the burdens and benefits hereof shall bind and inure to the benefit of all assignees,
transferees and successors to the parties.
7.9 Implementation. Upon satisfactory completion by Developer of all
required applications and payment of applicable Processing Fees and Charges, including the fee
for processing this Agreement, if Developer proceeds with the Project, the City and Developer
shall commence and diligently process all required steps necessary for the implementation of this
Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other
information necessary for the City to carry out its processing obligations hereunder.
7.10 Relationship of the Parties. 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 Agreement. The only relationship between the City and the Developer is that of a government entity regulating the
development of private property and the owner of such private property. Further, the City and
Developer hereby renounce the existence of any form of joint venture or partnership between
them and agree that nothing herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners.
7.11 Cooperation in the Event of Third Party Litigation. In the event legal
action is instituted by a third party, including any other governmental entity or official
challenging the validity or enforceability of any provision of this Agreement, or the Existing
Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each
provision of this Agreement; provided, however, that Developer agrees to and shall defend,
indemnify, save and hold the City and its elected and appointed representatives, boards,
commissions, offices, agents, employees, consultants and attorney’s (collectively, the “City” in this section 7.11) harmless from any and all claims, costs and liability, including without
limitation, court costs and attorneys’ fees awarded to any party, to the extent they result from any
such Litigation, and shall reimburse the City for its actual costs in defense of the action or
proceeding, including, but not limited to the time and expenses of the City Attorney's Office and
any consultants. As the indemnifying Party and provided that Developer demonstrates to City, to City’s reasonable satisfaction, that Developer has the financial wherewithal to indemnify the
City hereunder at the time of any such Litigation, Developer shall at all times retain final
authority and control over all documents to be filed in such Litigation and notwithstanding the
provisions of this Section 7.11, the City shall be deemed to have waived its rights to be
indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer’s prior written approval, which approval shall
not be unreasonably withheld. This section shall survive any judgment invalidating all or any
part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against
any such legal action and shall pay any attorneys' fees awarded against the City or the Developer,
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or both, resulting from any such legal action. The Developer shall be entitled to any award of
attorneys' fees arising out of any such legal action.
7.12 Notices. Any notice or communication required hereunder between the
City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of
(i) actual receipt by any of the addresses designated below as the Party to whom notices are to be
sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or delivered by courier, a notice shall be deemed to have been delivered when received by the Party to whom it is addressed. Any Party hereby may at any time, by giving ten (10) day’s
written notice to the other Party hereto, designate any other address in substitution of the address,
or any additional address, to which such notice or communication shall be given. Such notices
or communications shall be given to the Parties at their addresses set forth below:
If to City: With Copies to:
City Clerk City Attorney
City of Anaheim City of Anaheim
200 South Anaheim Blvd., 2nd Floor 200 South Anaheim Blvd., Suite 356
Anaheim, CA 92805 Anaheim, CA 92805
If to Developer: With Copies to:
Greg McCafferty John A. Ramirez, Esq.
Sagecrest, LLC Rutan & Tucker, LLP
2400 East Katella 611 Anton Blvd, 14th Floor
Anaheim, CA 92806 Costa Mesa, CA 92626
7.13 Recordation. The City’s Clerk shall record a copy of this Agreement with
the Registrar-Recorder of Orange County within ten (10) business days following the later to
occur of (i) execution by both parties, or (ii) the Effective Date of the Authorizing Ordinance.
To the extent that the Property consists of property under Lease by Developer, this Agreement
shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee.
7.14 Developer Hold Harmless. Developer hereby agrees to and shall
indemnify, save, hold harmless and defend the City, and its elected and appointed
representatives, boards, commissions, officers, agents, employees, consultants and attorneys
(collectively, the “City” in this Section 7.14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from any of Developer's acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, of the
Property and/or the Project, and/or Developer’s activities on the Property (or the activities of the
Developer's employees, contractors, subcontractors, agents, representatives, or independent
contractors on the Property), including without limitation the construction of the Project. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless
20
and/or defend it to the extent that such claims, costs or liability arise from the negligent acts, or
negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with
Developer in the defense of any matter in which Developer is defending and/or holding the City
harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appears to be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier
expiration of this Agreement.
7.15 Successors and Assigns. Subject to the limitations on transfer set forth in
this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants
and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors (by merger, consolidation or otherwise), assigns and transferees, and all persons or entities acquiring the Property or any portion thereof or any
interest therein, whether by sale, operation of law, or in any manner whatsoever.
7.16 Severability. If any provisions, conditions, or covenants of this
Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to
the fullest extent permitted by law.
7.17 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and
such waiver refers expressly to the Section containing the waived provision. No waiver of any
right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or
remedy in respect of any other occurrence or event.
7.18 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be
enforceable by any other persons or entities other than the Parties.
7.19 Expedited Processing. Developer and City agree to cooperate in the
expedited processing of any legal action seeking mandamus, specific performance, declaratory
relief or injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the prosecution/defense of the action, provided such cooperation shall not require any Party to
waive any rights.
7.20 Requests for Payment. Except for the Recreational Amenities Payment,
with respect to any requests by the City for payment of amounts due under this Agreement,
Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or
requests for payment or shall identify any disputed amounts within twenty (20) days after
receipt. At Developer’s request, the City shall provide Developer with reasonable information or
back-up materials supporting such invoices or requests for payment at City offices, with
reasonable notice, during business hours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed.
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7.21 Entire Agreement. This Agreement and the documents, agreements and
exhibits referenced herein or attached hereto set forth and contain the entire understandings and
agreements of the parties, and there are no oral or written representations, understandings or
ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants
shall be admissible in any proceedings of any kind or nature to interpret or determine the
provisions or conditions of this Agreement.
7.22 Conflict of Laws. With the exception of the Force Majeure provisions set
forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the
obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals
and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern.
7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each Party has received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions hereof. The
provisions of this Agreement shall be construed as to their fair meaning, and not for or against
any Party based upon any attribution to such Party as the source of the language in question. The
headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement.
7.24 Counterparts. This Agreement is executed in six duplicate originals, each
of which is deemed to be an original.
7.25 Organization and Standing of Developer. Developer is a limited liability
company duly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. All consents or approvals of Developer’s members required
in connection with the execution and delivery by the Developer of this Agreement will have been
obtained and delivered to the City.
[Remainder of page intentionally left blank. Signatures appear on next page.]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first written below.
Dated: "CITY"
CITY OF ANAHEIM, a municipal corporation and charter city
By:
ATTEST:
LINDA N. ANDAL, CITY CLERK
By:
APPROVED AS TO FORM:
Theodore J. Reynolds Assistant City Attorney
"DEVELOPER"
SAGECREST, LLC, a California limited liability company
By:_______________________
Gregory McCafferty Its: Member
By:_________________________
Joshua Haskins
Its: Member
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California ) County of )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California ) County of )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT "A"
SITE MAP
EXHIBIT "B"
LEGAL DESCRIPTION
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
PARCEL 2 OF PARCEL MAP NO. 88-335, AS PER MAP FILED IN BOOK 245 PAGES 11 TO 18 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS,
MINERAL RIGHTS, AND OTHER HYDROCARBON SUBSTANCES BY WHATEVER
NAME KNOWN, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET, AS
RESERVED BY TEXACO ANAHEIM HILLS, INC., A CORPORATION, IN THE
CORPORATION GRANT DEED RECORDED JANUARY 4, 1983, AS INSTRUMENT NO.
83-002464, OF OFFICIAL RECORDS.
APN: 363-472-03
ATTACHMENT NO. 8
Initial Study and Mitigated Negative Declaration is available at: http://www.anaheim.net/DocumentCenter/View/11873
1
ANAHEIM HILLS ROAD RESIDENTIAL PROJECT
MITIGATION MONITORING PLAN NO. 333
Terms and Definitions: 1. Property Owner/Developer – Owner or developer of Anaheim Hills Road Residential Project. 2. Environmental Equivalent/Timing – Any mitigation measure and timing thereof, subject to the approval of the City, which will have the same or superior result and will have the same or superior effect on the environment. The Planning Department, in conjunction with any appropriate agencies or City departments, shall determine the adequacy of any proposed "environmental equivalent/timing" and, if determined necessary, may refer said determination to the Planning Commission. Any costs associated with information required in order to make a determination of environmental equivalency/timing shall be done by the property owner/developer. Staff time for reviews will be charged on a time and materials basis at the rate in the City's adopted Fee Schedule. 3. Timing – This is the point where a mitigation measure must be monitored for compliance. In the case where multiple action items are indicated, it is the first point where compliance associated with the mitigation measure must be monitored. Once the initial action item has been complied with, no additional monitoring pursuant to the Mitigation Monitoring Plan will occur, as routine City practices and procedures will ensure that the intent of the measure has been complied with. For example, if the timing is "to be shown on approved building plans" subsequent to issuance of the building permit consistent with the approved plans will be final building and zoning inspections pursuant to the building permit to ensure compliance.
4. Responsibility for Monitoring – Shall mean that compliance with the subject mitigation measure(s) shall be reviewed and determined adequate by all departments listed for each mitigation measure. Outside public agency review is limited to those public agencies specified in the Mitigation Monitoring Plan which have permit authority in conjunction with the mitigation measure. 5. Ongoing Mitigation Measures – The mitigation measures that are
designated to occur on an ongoing basis as part of this Mitigation Monitoring Plan will be monitored in the form of an annual letter from the property owner/developer in January of each year demonstrating how compliance with the subject measure(s) has been achieved. When compliance with a measure has been demonstrated for a period of one year, monitoring of the measure will be deemed to be satisfied and no further monitoring will occur. For measures that are to be monitored "Ongoing During Construction", the annual letter will review those measures only while construction is occurring; monitoring will be discontinued after construction is complete. A final annual letter will be provided at the close of construction.
6. Building Permit – For purposes of this Mitigation Monitoring Plan,
a building permit shall be defined as any permit issued for construction
of a new building or structural expansion or modification of any
existing building, but shall not include any permits required for
interior tenant improvements or minor additions to an existing structure
or building.
ATTACHMENT NO. 9
2
MITIGATION MONITORING PROGRAM N0. 316
MITIGATION
NUMBER TIMING MEASURE
RESPONSIBLE FOR
MONITORING COMPLETION
IV. BIOLOGICAL RESOURCES
MM-BIO-1 Prior to the issuance
of a grading permit
A survey for active raptor nests shall be conducted no less than three
days prior to commencement of any construction activities during
raptor nesting season (January 15-September 15). Restrictions may be
placed on construction activities in the vicinity of any active nest
observed until the nest is no longer active as determined by a qualified
Biologist. A 500-foot buffer zone shall be designated around a nest to
allow construction to proceed while minimizing disturbance to the
active nest. Once the nest is no longer active, construction can proceed
in the buffer zone.
Planning and Building
Department
3
MM-BIO-2 Prior to the issuance
of a grading permit
In order to avoid impacts on nesting birds, vegetation removal shall not
be scheduled during the breeding season (January 15–September 15) to
the extent feasible. If vegetation clearing for construction must be
conducted during the breeding season, a qualified Biologist shall
conduct pre-construction surveys for nesting birds no less than three
days prior to disturbance to confirm the absence of active nests in the
work area. If no active nests are found, tree removal can proceed. If the
Biologist finds an active nest in or adjacent to the construction area
and determines that the nest may be impacted, the Biologist shall
identify an appropriate buffer zone (typically, 100 to 300 feet) around
the nest. The size of the buffer may vary depending on site features,the
sensitivity of the species, location of the nest, the existing level of
human activity, and the nature of the construction activity, but will be
designed to prevent disruption of nesting activity. Once the nest is no
longer active, construction can proceed in the buffer zone.
Planning and Building
Department
MM-BIO-3 Prior to the issuance
of a grading permit
Prior to the initiation of construction activities, the limits of
disturbance (project impact area) shall be clearly defined and marked
in the field with fencing, stakes, or flagging in order to prevent damage
to adjacent vegetation and habitat.
Planning and Building
Department
4
MM-BIO-4 Prior to the issuance
of a grading permit
All equipment maintenance, staging, and dispensing of fuel, oil,
coolant, or any other toxic substances shall occur only in designated
areas within the project site’s proposed limits. These designated areas
shall be clearly marked and located in such a manner as to contain run-
off.
Planning and Building
Department
V. CULTURAL RESOURCES
MM-CUL-1 Prior to the issuance
of a grading permit
In the event that cultural resources are unearthed during ground-
disturbing activities associated with the Proposed Project, the
contractor shall cease all earth-disturbing activities within 50 feet of
the discovery and shall retain a qualified archaeologist. Construction
activities may continue in other areas. The archaeologist shall evaluate
the resource and determine if the discovery is significant. If the
discovery proves to be significant, additional work, such as data
recovery excavation or resource recovery may be warranted and shall
be discussed in consultation with the appropriate regulatory agency
and/or tribal group.
Planning and Building
Department
IX. NOISE
MM-NOI-1 Prior to the issuance
of a grading permit
The Applicant shall construct a minimum 4.0-foot high solid wall on
the east side of the proposed private patios for: (1) the northern most
unit of the south building with 12 units; and (2) the eastern most unit
of the north building with 5 units. The sound walls shall be required to
be constructed of a solid material (e.g., glass, wood or plaster) that are
free of any cutouts or openings.
Planning and Building
Department
MM-NOI-2 Prior to the issuance
of a building permit
The Applicant shall provide a “windows closed” condition for each
proposed townhome. A “windows closed” condition requires a means
of mechanical ventilation per Chapter 12, Section 1205 of the Uniform
Building Code. This shall be achieved with a standard forced air
conditioning and heating system for each residential unit.
Planning and Building
Department
XIII. PALEONTOLOGICAL RESOURCES
MM-PAL-1 Prior to the issuance
of a grading permit
In the event that paleontological resources are unearthed during
ground-disturbing activities associated with the Proposed Project, the
contractor shall cease all earth-disturbing activities within 50 feet of
the discovery and shall retain a qualified paleontologist. Construction
activities may continue in other areas. The paleontologist shall
evaluate the resource and determine if the discovery is significant. If
the discovery proves to be significant, additional work such as data
recovery excavation or resource recovery may be warranted and shall
Planning and Building
Department
5
be discussed in consultation with the appropriate regulatory agency.
XVII. TRIBAL CULTURAL RESOURCES
MM-TRI-1 Prior to the issuance
of a building permit
In the event that potential tribal cultural resources are unearthed during
ground-disturbing activities associated with the Proposed Project, the
contractor shall cease all earth-disturbing activities within 50 feet of
the discovery and shall notify the appropriate tribal group to assign a
tribal monitor to inspect and evaluate the potential tribal cultural
resource. Construction activities may continue in other areas. The
tribal monitor shall evaluate the resource and determine if the
discovery is significant. If the discovery proves to be significant,
additional work, such as data recovery excavation or resource recovery
may be warranted and shall be discussed in consultation with the
appropriate tribal groups.
Planning and Building
Department
2400 E. Katella Avenue • Suite 800 • Anaheim, CA 92806
February 8, 2016 Jonathan Borrego Planning Manager
Anaheim Planning Department 200 S Anaheim Boulevard, 1st Floor Anaheim, CA 92806
Subject: Application for 60 Residential Units on 8.36 acre site at 415 S. Anaheim Hills Rd. in Anaheim Dear Mr. Borrego: Sagecrest, LLC is submitting the ‘Anaheim Hills Road Residential Project” entitlement application to the City of Anaheim for its review and approval for the future development of 60 attached townhome (for-sale) residential units. The 8.36 gross acre project site is located at 415 S. Anaheim Hills Road. We are excited to propose this high-quality for-sale townhome neighborhood in the prestigious community of Anaheim Hills. Our project will be the first new “in-fill” project in this area of Anaheim Hills in over 15 years. This is especially significant given the Irvine Company’s recent decision to not move forward with the Mountain Park Specific Plan and dedicate the land to the County for open space. The project will assist the City in meeting its allocation of housing units for Anaheim Hills contained in the recently updated Housing Element and improve the City’s imbalance of jobs to housing. In addition to breathing new life into this area of Anaheim Hills, the project will also provide new residents to support local businesses, including the retail center across Anaheim Hills Road that has struggled over the years to retain tenants and attract customers. As part of our application we are also proposing to contribute $200,000 to the City to assist Community Services with development of a passive open space park on City-owned land around the corner from our project on the north side of Nohl Ranch Road. When combined with the $323,288 in park fees the project would pay for the 60 townhomes, this represents $523,288 that could be used to build the park at no expense to Anaheim taxpayers. The new park would connect with the City’s Canyon Hills Library located off of Scout Trail and provide an open space linkage from the library to Anaheim Hills Road. The following entitlements are requested as part of the proposed development:
1. Development Agreement to provide the City with $200,000 to be used to fund park improvements.
2. Tentative Tract Map No. 17959 to create fee lots for the single-family attached homes, and common lots for the private street and other common areas for future development of 60
ATTACHMENT NO. 10
single-family attached homes and the associated on-site circulation, open space, and landscape areas. The “design and improvement” of the subdivision has been prepared to be consistent with the proposed Corridor Residential General Plan designation.
3. General Plan Amendment to change the site’s existing General Plan Land Use designation from Open Space to Corridor Residential. This proposed General Plan density is consistent with the surrounding neighborhood. The site is surrounded by Low-Medium Hillside Density to the east, Low-Medium Density to the south and east, and Low Density Residential to the west across the Orange County (OC) Flood Control channel.
4. Reclassification to change the site's existing zoning from OS (Open Space) to RM-1 (Multiple-Family Residential). The site also has a PC (Planned Community) and SC (Scenic Corridor) Overlay. We are not proposing to change the overlay zones. The RM-1 zone allows for the density proposed for this project. In addition, application of the RM-1 standards to the proposed project will ensure compatibility with the surrounding neighborhood. Moreover, the project will contribute to the production of new housing prescribed in the City’s Housing Element.
5. Conditional Use Permit to allow a Planned Unit Development and implement the flexible development standards authorized under the City zoning code. The project site is long and narrow which dictates a specific site design that complements the site, but also makes strict adherence to some development standards difficult. For example, the site narrows from south to north and contains the Walnut Creek Channel of the west. The site plan recognizes these constraints by meandering the setback along Anaheim Hills Road while at the same time not maximizing the density allowed by the proposed General Plan designation. Other properties in the vicinity have been approved with similar setbacks from Anaheim Hills Road.
6. Partial abandonment of City easements to accommodate a portion of the proposed development. The project only needs a partial abandonment to accommodate some of the garages and a portion of some of the units that encroach into the easement. This will also allow us to enhance the design of the project by shifting the townhomes to the west so we can accommodate a larger setback area from Anaheim Hills Road.
Existing Site Conditions Existing site conditions consists of a private tennis club (Anaheim Hills Racquet Center). In addition, the City has a 95 foot wide easement for a flood control channel that contains the box channel and access road. The City has an agreement with Orange County Flood Control whereby the County maintains the channel and the City maintains the access. Surrounding land uses consist of attached townhomes to the east across Anaheim Hills Road, commercial to the southeast, senior apartments to the south, and single-family residential to the west.
Proposed Site Plan The proposed site plan consists of 60 attached single-family homes, associated landscaping, courtyards with paseos, private streets, common and private open space, internal and public sidewalks. The site plan utilizes the location of the existing access drive used by the tennis club for the primary internal
circulation. Primary access is from Anaheim Hills Road (right in, right out) and La Paz Way (full access). The two-story homes will range from 1,511 to 2,033 SF. In order to create a seamless transition from the existing neighborhood to the project site, the proposed project is incorporating an architectural style that is compatible with the neighborhood. In addition, the exterior water efficient landscaping will match the surrounding area. Please refer to the attached project exhibits for complete conceptual details of the proposed development.
Submittal Package Listed below is a summary of the items included in the submittal package as required by Anaheim's Development Application Submittal Checklist: 1. Completed Development Application Form 2. Completed Environmental/Project Information Form 3. Justification for General Plan Amendment 4. Justification for Reclassification 5. Photographs of project site and surrounding area (9 sets) 6. Preliminary Title Report 7. Site Plan (20 copies) 8. Tentative Tract Map (22 copies) 9. Preliminary Grading Plan (4 copies) 10. Preliminary WQMP (3 copies) 11. Soils and Geotechnical Report (3 copies) Sagecrest, LLC respectfully requests approval of its application and associated entitlements. Should you have any questions regarding this request, please feel free to contact me at (714) 606-7208 or greg@sagecrestllc.com. Sincerely, Greg McCafferty Sagecrest, LLC
Project Site from La Paz Way (Facing South)
From Northern Section of Project Site (Facing Southeast)
ATTACHMENT NO. 11
From Northern Section of Project Site (Facing Northeast)
Adjacent Property from Project Site (Facing East)
Project Entrance from Anaheim Hills Road (Facing East)
Adjacent Property from Project Site (Facing Northeast)
Northern Section of Project Site (Facing Southeast)
From Northern Section of Project Site (Facing Southwest)
Project Site from Anaheim Hills Road (Facing Northwest)
Project Site from Anaheim Hills Road (Facing Southwest)
From La Paz Way (Facing North)
Shopping Center East of Project Site (Facing East)
ATTACHMENT NO. 12
A N A H E I M H I L L SROADEAST LAPAZWAY
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ANAHEIM HILLS, CALIFORNIA
TTR # 17959 415 SOUTH ANAHEIM HILLS ROAD
ILLUSTRATIVE LANDSCAPE PLAN
PROJECT NUMBER: BYE-2016.102.00
R A I N V I L L E B Y E
LANDSCAPE ARCHITECTS
PLOT DATE: 02 JUNE 2016
SHEET
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PROJECT ENTRY MONUMENTATION
(LOW MASONRY WALL WITH PROJECT
NAME)
PROJECT ENTRY MONUMENTATION
(MASONRY COLUMN)
NATURAL COLOR CONCRETE
PEDESTRIAN PAVING
INTEGRALLY COLORED CONCRETE
PAVING AT PEDESTRIAN CROSSINGS
PICNIC TABLE (TYP)
BARBEQUE (TYP)
BENCH (TYP)
PRIVATE YARD AREAS, TYP. (ENCLOSED
BY 3' HIGH BLOCK WALL)
CLEAR GROUND PLANE AND PRUNE
TREES TO REMAIN ALONG ANAHEIM
HILLS ROAD
OPEN TURF AREAS
PET WASTE STATION
EMERGENCY ACCESS
OVERLOOK TO VIEW NATURALIZED
PLANTINGS IN BASIN
FITNESS STATIONS ALONG PEDESTRIAN
CIRCULATION
TALLER SHRUBS FOR SCREENING
GAME TABLE
MAILBOX LOCATIONS
SEATING AREA
OPTION 'A'; TALLER SHRUBS FOR
SCREENING (TO BE MAINTAINED AT
APPROXIMATELY 12 FEET, PER COUNTY
APPROVAL - PLACEMENT AT THE
DISCRETION OF ADJACENT PROPERTY
OWNERS)
OPTION 'B'; TALLER SHRUBS FOR
SCREENING (TO BE OFFERED TO
ADJACENT PROPERTY OWNERS IF
'OPTION A' IS NOT APPROVED BY
COUNTY)
COURTYARDS ENCLOSED BY 4' HIGH
BLOCK WALL IN THESE LOCATIONS
3' HIGH RETAINING WALL
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SLIGHT PEAK ON CAP
2400 E. Katella Ave. • Suite 800 • Anaheim, CA 92806
www.environmentaladvisors.com
June 6, 2016
Amy Vazquez, Planning Department
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
Subject: Response to Comments on the 2016 City of Anaheim Initial Study/Mitigated Negative
Declaration for the Anaheim Hills Road Residential Project
Dear Ms. Vazquez:
The purpose of this letter is to provide responses to the comments received from Orange County Public
Works on the 2016 City of Anaheim Initial Study/Mitigated Negative Declaration (IS/MND) for the
Anaheim Hills Road Residential Project related to surface hydrology (dated May 26, 2016, from Robert
McLean, Senior Civil Engineer, Flood Program Support/Hydrology, OC Public Works). These responses
will serve as a reference document for the Final IS/MND.
Comment #1:
Response to Comment #1:
A Preliminary Drainage Study and Preliminary Water Quality Management Plan were both completed
and submitted to the City for this project. Both studies have received preliminary approval from
Anaheim Public Works staff, and will be refined during final engineering for the project. The Mitigated
Negative Declaration for the project found that there would be no significant impacts to hydrology,
drainage, or water quality. The Drainage Study found that the project site contains approximately
227,725 square feet or 63 percent of impervious area. The development of the project would decrease
the amount of impervious surfaces to approximately 220,983 square feet or 61 percent of the project
site. Post-development discharges would be below pre-development discharges as a result of reduced
impervious areas.
In addition, no direct connection to Walnut Creek Channel is proposed. Furthermore, the reduced
discharges from site post-development would effectively improve the drainage characteristics of the
Walnut Creek Channel. Flows to the channel would be reduced in quantity, therefore channel capacity
would be increased.
ATTACHMENT NO. 13
2400 E. Katella Ave. • Suite 800 • Anaheim, CA 92806
www.environmentaladvisors.com
Comment #2:
Response to Comment #2:
Noted. Preliminary Hydrologic and Hydraulic Studies have been completed and conform to the current
Orange County Hydrology Manual (OCHM) guidelines and criteria, Addendum No. 1 to the OCHM and
the Orange County Flood Control Design Manual. Final Hydrologic and Hydraulic Studies will be
prepared and finalized in conformance to the current Orange County Hydrology Manual (OCHM)
guidelines and criteria, Addendum No. 1 to the OCHM and the Orange County Flood Control Design
Manual.
Comment #3:
Response to Comment #3:
Noted. The project applicant has received a conceptual review letter for an encroachment permit from
OCFCD. Once final engineering plans are completed, the applicant will submit to OCFCD for final
approval of an encroachment permit from the County’s Public Property Permits Section. All work will be
performed in compliance with OCFCD requirements, conditions, rules, and regulations.
Comment #4:
Response to Comment #4:
Noted. The project site is not located within a Special Flood Hazard Area.
From:Wing Hsieh
To:Amy K. Vazquez
Subject:RESIDENTIAL PROJECT AT 415 S. ANAHEIM HILLS RD., ANAHEIM 92807
Date:Wednesday, June 08, 2016 10:38:53 AM
Dear Planning Commissioners.
I'm a resident of Anaheim Hills and resided at 224 South La Paz Street. My home is located adjacent to
the proposed residential project at 415 S. Anaheim Hills Road. In general, I am in support of the project
that is going to bring upscale housings that will help raise the property values to the surrounding area and
keep the community attractive.
However, there are couple of issues that I am particularly concerned with and that is 1) decreased privacy
and 2) increased noise level.
With the new residential development, the level of privacy that I currently enjoyed will decreased
significantly. The chain-linked fence with an awing covering provides only a small level of privacy. Any
person of average height walking along the fence can easily looked over the fence and peer into my
backyard. I can envisioned seeing residents walking their pets and driving by in their SUV will frequently
look over the fence. It's only natural because of human curiosity. It is happening now.
Secondly, there is the matter of increased noise level mainly due to the residents driving up and down the
access road to get to a exit point where they can make left and right turns. I believed that most household
will have a minimum of two vehicles. The level of automotive traffic will significantly increased during the
weekends when residents make multiple trips.
A representative of the development company has shown me a drawing of the proposed development and
some possible solutions to the privacy and noise issues. He explained that they are proposing to planting
a row of shrubs that will grow tall along side the current chain linked fence to provide some privacy to the
current residents that live adjacent to the proposed new development. In addition, he mentioned that they
are also proposing another row of tall growing shrubs be planted right adjacent to our backyard fence to
provide additional privacy. A double row of tall shrubs to provide privacy and that can help to minimize the
increased automobile traffic noise level. That is an idea that I liked very much and can endorse.
Thank you for your time and consideration.
Wing Hsieh
224 South La Paz Street, Anaheim 92807
June 7, 2016
ATTACHMENT NO. 14
Planning Department
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
RE: RESIDENTIAL PROJECT AT 415 S. ANAHEIM HILLS RD., ANAHEIM
Dear Planning Commissioners,
We are residents of Anaheim Hills, living behind the proposed residential project at
415 S. Anaheim Hills Rd. We would like to express our approval of this project for
several reasons.
Firstly, we are excited to see that this project will replace the tennis club currently
in this spot. It has been poorly maintained for years and has become quite an
eyesore. The new townhomes, with their HOA, will add beauty to this strip of land.
Secondly, we are thrilled to find that the unsightly power lines will be buried. They
are impeding our view and affect our property value. Thirdly, we hear that a
sidewalk will be installed. This has been a problem for our family, as we walk the
area with our children and dogs. The members of this community spend a good deal
of time walking the area and the townhomes, and all that the project will bring, will
be a welcome addition to our area both visually and financially.
We are excited for this project to move forward and urge your support.
Sincerely,
Holly and Robert Coons
212 S La Paz St
Anaheim Hills, CA 92807
May 31,2016
Planning Department
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
RE: RESIDENTIAL PROJECT AT 415 S. ANAHEIM HILLS RD., ANAHEIM
Dear Planning Commissioners,
I am a resident of Anaheim Hills. My home is located adjacent to the proposed
residential project at 415 S. Anaheim Hills Rd. I am in support of the project for a
number of reasons.
I am pleased to see that this project will replace an aging tennis center with new for-sale
townhomes with new landscaping that will be maintained by an HOA. I am also looking
forward to the undergrounding of the unsightly power lines and the installation of a
much needed sidewalk along Anaheim Hills Road for residents to walk with their dogs.
Furthermore, the appealing, high-quality design will raise property values in the area.
The project will be a valuable asset to the surrounding area and the community as a
whole.
I am excited about the project and urge you to support it so the development can move
forward. Thank you for your time and consideration.
Sincerely,
Address
RECORDING REQUESTED BY AND, WHEN RECORDED, RETURN TO:
City Clerk City of Anaheim
P.O. Box 3222
Anaheim, California 92805
(SPACE ABOVE FOR RECORDER’S USE)
DEVELOPMENT AGREEMENT NO. 2016-00003
BETWEEN
CITY OF ANAHEIM
AND
SAGECREST, LLC
ATTACHMENT NO. 15
TABLE OF CONTENTS
Page
i
1. DEFINITIONS ............................................................................................................... 2
2. PROPERTY, PURPOSE AND INTENT ...................................................................... 6
2.1 Property Description .......................................................................................... 6
2.2 City Objectives................................................................................................... 6
2.3 Developer Objectives ......................................................................................... 7
2.4 Mutual Objectives .............................................................................................. 7
3. AGREEMENT AND ASSURANCES .......................................................................... 7
3.1 Agreement and Assurance on the Part of Developer ......................................... 7
3.2 Agreement and Assurances on the Part of the City ........................................... 7
3.2.1 Entitlement to Development .................................................................. 7
3.2.2 Changes in Applicable Rules ................................................................. 7 3.2.3 Agreed Changes and Other Reserved Powers ....................................... 8
3.2.4 Subsequent Development....................................................................... 8
3.2.5 Effective Development Standards.......................................................... 8
3.2.6 Timing and Sequencing of Development .............................................. 9
3.2.7 Impact Fees; Credit for Developer Installed Facilities .......................... 9 3.3 Processing Fees; Extraordinary Processing Consultant Charges and
Environmental Review....................................................................................... 9
3.3.1 Processing Fees and Charges ................................................................. 9
3.3.2 Extraordinary Processing Consultant ..................................................... 9
3.3.3 Environmental Review......................................................................... 10
4. DEVELOPMENT PLAN............................................................................................. 10
4.1 Vested Right to Develop Property ................................................................... 10
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC
PERFORMANCE ........................................................................................................ 10
5.1 Annual Review................................................................................................. 10 5.2 Reimbursement of Costs .................................................................................. 10
5.3 Default by Developer ....................................................................................... 10
5.3.1 Default.................................................................................................. 10
5.3.2 Notice of Default.................................................................................. 10
5.3.3 Termination for Failure to Cure Default .............................................. 11 5.3.4 Specific Performance ........................................................................... 11
5.3.5 Damages ............................................................................................... 11
5.4 Default by City ................................................................................................. 12
5.4.1 Notice of Default.................................................................................. 12
5.4.2 Specific Performance and Mandamus ................................................. 12
6. PUBLIC BENEFITS .................................................................................................... 12
6.1 Increase in Property Taxes ............................................................................... 12
6.2 Recreational Amenities Payment ..................................................................... 12
ii
7. GENERAL PROVISIONS .......................................................................................... 13
7.1 Date Agreement Becomes Effective ................................................................ 13
7.2 Term ................................................................................................................. 13
7.2.1 Basic Term ........................................................................................... 13 7.2.2 Early Termination of Agreement ......................................................... 13
7.2.3 Automatic Termination of Agreement ................................................. 13
7.2.4 Effect of Termination ........................................................................... 13
7.3 Force Majeure .................................................................................................. 13
7.4 Applicable Law ................................................................................................ 14 7.5 Amendments .................................................................................................... 14
7.6 Assignment ...................................................................................................... 14
7.6.1 Right to Assign .................................................................................... 14
7.7 Mortgage Rights............................................................................................... 14
7.7.1 Encumbrances on the Property and this Agreement ............................ 14 7.7.2 Mortgagee Protection ........................................................................... 15
7.7.3 Mortgagee Not Obligated .................................................................... 15
7.7.4 Notice of Default to Mortgagee ........................................................... 15
7.7.5 Bankruptcy ........................................................................................... 16
7.7.6 Termination Subject to Mortgagee Rights ........................................... 16 7.7.7 No Cancellation ................................................................................... 16
7.7.8 New Agreement Upon Default by Developer ...................................... 16
7.7.9 Separate Agreement ............................................................................. 17
7.7.10 Material Notices ................................................................................... 17
7.7.11 Mortgagee Right to Assign .................................................................. 17 7.8 Covenants ......................................................................................................... 17
7.9 Implementation ................................................................................................ 17
7.10 Relationship of the Parties ............................................................................... 18
7.11 Cooperation in the Event of Third Party Litigation ......................................... 18
7.12 Notices ............................................................................................................. 18 7.13 Recordation ...................................................................................................... 19
7.14 Developer Hold Harmless ................................................................................ 19
7.15 Successors and Assigns.................................................................................... 19
7.16 Severability ...................................................................................................... 19
7.17 Waiver .............................................................................................................. 20 7.18 Third Party Beneficiaries ................................................................................. 20
7.19 Expedited Processing ....................................................................................... 20
7.20 Requests for Payment ...................................................................................... 20
7.21 Entire Agreement ............................................................................................. 20
7.22 Conflict of Laws .............................................................................................. 20 7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents ......... 20
7.24 Counterparts ..................................................................................................... 21
7.25 Organization and Standing of Developer ......................................................... 21
1
DEVELOPMENT AGREEMENT NO. 2016-00003 BY AND BETWEEN THE CITY OF ANAHEIM
AND SAGECREST, LLC
THIS DEVELOPMENT AGREEMENT NO. 2016-00003 (“Agreement”) is made and entered into as of this _____ day of ________ 2016, by and between the CITY OF ANAHEIM, a
charter city and a municipal corporation duly organized and existing under the Constitution and
the laws of the State of California (“City”), and SAGECREST, LLC, a California limited
liability company (“Developer”), pursuant to the authority set forth in Section 65867 of the
California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code (the “Development Agreement Act”), the City’s inherent power as a charter
city, and the Development Agreement Act implementing procedures adopted by the City in
Resolution No. 82R-565 (the “Procedures Resolution”). The definitions contained in Section 1
shall apply to the entire Agreement, including the following RECITALS.
RECITALS
A. Developer represents that it is under contract to acquire fee title to the Property,
and thus has an equitable interest in the Property. Developer has proposed development of the
Project, as defined below and depicted on the Site Map (Exhibit A to this Agreement).
B. The development of the Project by the Developer will provide sixty (60) new
townhome dwelling units within the City’s “RM-1” Multiple-Family Residential Zone and the Scenic Corridor (SC) Overlay Zone, which will result in certain public benefits to the City; and
C. The Project will provide development fees, certain public infrastructure, private
parking and other facilities needed to support the Project; and
D. Developer, in consideration of the benefits and opportunities provided to
Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, will provide assurances to the City that the public infrastructure, amenities
and design features of the Project are implemented in a timely manner as set forth in the Existing
Approvals; and
E. In order to provide certainty and render development of the Project more feasible
in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements contained
in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented
or burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and
F. Developer also recognizes and agrees that in extending these benefits to
Developer, the City must retain the Reserved Powers; and
G. Concurrently with or prior to approval of this Agreement, the City has approved
the following other Project Approvals applicable to the Project, which are hereinafter
collectively referred to as the “Existing Approvals”:
(1) General Plan Amendment No. 2015-00505;
2
(2) Reclassification No. 2015-00284;
(3) Conditional Use Permit No. 2015-05832; and
(4) Tentative Tract Map No. 17959.
H. City and Developer desire to enter into this Agreement in order to assure development of the Property in accordance with the Existing Approvals and provide for vesting
of same for the Term of the Agreement, and to assure the City of installation of the design
features of the Project and public infrastructure in accordance herewith and as described in the
Existing Approvals; and
I. On June 13, 2016, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the
conclusion of such hearing, and after consideration of evidence and testimony submitted by City
staff, the Developer and all interested parties, adopted a Resolution recommending that the City
Council approve this Agreement; and
J. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City’s General Plan, and the MND satisfies all requirements of the California
Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and
the Project; and
K. On ________________, 2016, the City Council held a duly noticed public hearing
regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City
staff, the Developer and all other interested parties, introduced Ordinance No. _____ approving
this Agreement on ______________, 2016, and adopted Ordinance No. _____ on
______________, 2016 (herein referred to as the "Authorizing Ordinance").
NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
1.1 “Affiliate of Developer” or “Affiliate” means a sole proprietorship, limited
liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by
the Developer.
1.2 “AMC” means the Anaheim Municipal Code.
1.3 “Annual Review” means the annual review process as described in
Section 5 of this Agreement.
1.4 “Applicable Rules” means (subject only to the qualifications set forth
herein with respect to Fees and excluding the Reserved Powers) the rules, regulations,
3
ordinances and officially adopted plans and policies of the City in force as of the Effective Date,
including without limitation, the Existing Approvals. Notwithstanding this Section 1.4 or any
other provision of this Agreement (i) all duly adopted codes, regulations, specifications and
standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for
approval and/or under construction, and (ii) except as expressly set forth in this Agreement with
respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable
Rules shall mean and include only those Fees in effect as of the Effective Date.
1.5 “CEQA” means the California Environmental Quality Act (Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs.,
Title 14, section 15000 et seq.) and City CEQA Guidelines.
1.6 “City Agency” means each and every agency, department, board.
Commission, authority, employee, and/or official acting under the authority of the City that have
permit, entitlement or approval authority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission.
1.7 “City Attorney” means the City Attorney of the City.
1.8 “City Council” means the City Council of the City.
1.9 “City Manager” means the City Manager of the City.
1.10 “Conditions of Approval” means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals.
1.11 “Discretionary Action” means an action which requires the exercise of
judgment, deliberation or a decision on the part of the City and/or any City Agency in the
process of approving or disapproving a particular activity, as distinguished from an activity
which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any
Ministerial Permits and Approvals.
1.12 “Effective Date” means the effective date of the Authorizing Ordinance.
1.13 “Existing Approvals” means those approvals described in Recital G.
1.14 “Extraordinary Processing Consultant” means a consultant selected by the City to coordinate and expedite processing of applications for all or any Ministerial Permits and
Approvals and all or any Discretionary Actions applicable to the Project at the expense of
Developer.
1.15 “Fees” means any fees or charges imposed or collected by the City as of
the Effective Date other than (i) Impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City.
1.16 “Final Map” means the final map for the Project.
4
1.17 “General Plan” means the General Plan of the City.
1.18 “Impact Fees” means impact fees, linkage fees, exactions, fair share
charges or other similar impact fees or charges imposed on and in connection with new
development on a city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. Impact Fees shall not include Processing Fees and Charges, the
Recreational Amenities Payment, taxes or special assessments.
1.19 “Inspections” means all field inspections and reviews by City officials
during the course of construction of the Project and the processing of certificates of occupancy
(permanent or temporary).
1.20 “Institutional Lender” means any of the following institutions having
assets or deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000):
a California chartered bank; a bank created and operated under and pursuant to the laws of the
United States of America; an “incorporated admitted insurer” (as that term is used in
Section 1100.1 of the California Insurance Code); a “foreign (other state) bank” (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan
association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of
Sections 2600 et seq. of the California Financial Code); a “foreign (other nation) bank” provided
it is licensed to maintain an office in California, is licensed or otherwise authorized by another
state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); a bank holding company or
a subsidiary of a bank holding company which is not a bank (Section 3707 of the California
Financial Code); a trust company, savings and loan association, insurance company, investment
banker; college or university; pension or retirement fund or system, either governmental or
private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state
thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue
Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange
or the New York Stock Exchange.
1.21 ““Legal Description” means the legal description of the Property attached hereto as Exhibit B and incorporated herein by reference.
1.22 “Litigation” means any lawsuit (including a cross-action) filed against the
City and/or Developer which challenges the validity, implementation or enforcement of, or seeks
any other remedy directly relating to, all or any party of the Existing Approvals or this
Agreement.
1.23 “MND” means the Mitigated Negative Declaration Development prepared to evaluate the physical environmental impacts of the Project Number 2015-00101.
1.24 “Ministerial Permits and Approvals” means the nondiscretionary permits,
approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or
approved by the City in order for Developer to implement, develop and construct the Project and
5
the Mitigation Measures, including without limitation, building permits, and other similar
permits and approvals.
1.25 “Mitigation Measures” means those Mitigation Measures set forth in that
certain Mitigation Monitoring Plan No. 333 for the Project.
1.26 “Mortgage” means an instrument or instruments securing one or more
financings by the Developer with respect to the construction, development, use or operation of
the Project, and includes whatever security instruments are used in the locale of the Project,
including, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as
well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code.
1.27 “Mortgagee” means one or more Institutional Lenders holding a beneficial
interest and secured position under any Mortgage which have notified City, in writing, of its
request for notice under the provision of Section 7.7 hereof.
1.28 “Official Records” means the Official Records of Orange County, California.
1.29 “Parties” means collectively the Developer and the City.
1.30 “Party” means any one of the Developer or the City.
1.31 “Plaintiff’ means any party seeking relief or compensation through
Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise.
1.32 “Planning Commission” means the Planning Commission of the City.
1.33 “Planning Director” means the Planning and Building Director of the City.
1.34 “Processing Fees and Charges” means all processing fees and charges
required by the City including, but not limited to, fees and charges for land use applications,
Project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy
and other similar permits. Processing Fees and Charges shall not include Impact Fees.
1.35 “Project” means the development on the Property of sixty (60) townhome
dwelling units and associated community space, as more specifically described in the Existing
Approvals and as shown on the Site Map.
1.36 “Project Architect” means the architect designated by the Developer as
responsible for the design and construction supervision of the Project.
1.37 “Property” means that real property Developer is under contract to
purchase, which is legally described in Exhibit B hereto.
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1.38 “Public Improvements” means the facilities to be improved, constructed
and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the
City by the Developer. Public Improvements include sidewalks, all public utilities within the
streets (such as electricity and water, but excluding any non-municipal utilities), paths in the public right-of-way, off-site intersection improvements (including but not limited to curbs, curb
ramps, medians, signaling, traffic controls devices, signage, and striping), and all other
improvements delineated on street improvement plans approved by the City Engineer for the
Project during the pendency of the Project.
1.39 “Recreational Amenities Payment” means a payment to be made by Developer to the City in the amount of Two Hundred Thousand Dollars ($200,000) for use by
City to provide park and recreational facilities.
1.40 “Reserved Powers” means the rights and authority excepted from this
Agreement’s restrictions on the City’s police powers which are reserved to the City. The
Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective
Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy
conditions which the City has found to be injurious or detrimental to the public health or safety;
(2) are Uniform Codes; (3) are necessary to comply with state and federal laws, rules and
regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (4) are agreed to or consented to by
Developer; (5) involve the formation of assessment districts, Mello-Roos Community Facilities
Districts, special districts, maintenance districts or other similar districts formed in accordance
with applicable laws provided, however, that Developer shall retain all its rights with respect to
such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City-wide fees or charges of general applicability.
1.41 “Section” means the indicated section or subsection number of this
Agreement.
1.42 “Site Map” means the map of the Property which is attached thereto as
Exhibit A and incorporated herein by reference.
1.43 “Term” means the period of time during which this Agreement shall be in
effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement.
1.44 “Uniform Codes” means those building, electrical, mechanical, fire and
other similar regulations which are applicable throughout the City, including, but not limited to,
the California Building Standards Codes, as adopted by the City Council and codified in Chapter 15.03 (Building Standards Codes and Administrative Provisions Pertaining to Building and
Construction) of Title 15 (Buildings and Housing) of the AMC, and the California Fire Code, as
adopted by the City Council and codified in Chapter 16.08 (California Fire Code) of Title 16
(Fire) of the AMC, as the same may be amended from time to time by the City.
2. PROPERTY, PURPOSE AND INTENT.
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2.1 Property Description. The Property is shown on the Site Map and
described in the Legal Description.
2.2 City Objectives. The City desires that the Property be developed as
provided for in the Existing Approvals to: (i) create new general fund revenues in excess of the incremental City costs associated with the Project, (ii) provide for the payment by the Developer to the City of the Recreational Amenities Payment, (iii) provide a fully integrated and
coordinated development based on comprehensive planning principles; and (iv) to the extent
Developer proceeds with the Project, to assure that the Project will be developed as described in
the Existing Approvals.
2.3 Developer Objectives. This Agreement is necessary to assure Developer
that (i) the Project will not be reduced in density, intensity or use; and (ii) the Project will not be
subjected to new rules, regulations, ordinances, or official policies or delays which are not
permitted by this Agreement.
2.4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance
with the goals and objectives set forth in the General Plan. Moreover, this Agreement provides
additional assurance to the City and Developer that, should Developer proceed with the Project,
the installation of necessary improvements will occur in the manner set forth in the Existing
Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated development of the
Project will provide many public benefits to the City, including without limitation: delivery by
the Developer to the City of the Recreational Amenities Payment, and development of under-
utilized properties and uses.
3. AGREEMENT AND ASSURANCES.
3.1 Agreement and Assurance on the Part of Developer. In consideration for
the City entering into this Agreement, and as an inducement for the City to obligate itself to carry
out the covenants and conditions set forth in this Agreement, and in order to effectuate the
purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with
the Project, Developer hereby agrees to (i) develop the Project consistent with the Existing Approvals, and (ii) deliver to the City the Recreational Amenities Payment, by the time set forth
therefor in Section 6.2 of this Agreement.
3.2 Agreement and Assurances on the Part of the City. In consideration for
Developer entering into this Agreement and delivery of the Recreational Amenities Payment and
provision of other public benefits, as further set forth in Section 6 below, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this
Agreement, the City hereby agrees during the term as follows:
3.2.1 Entitlement to Development. Developer has a vested right to
develop the Project in accordance with the Existing Approvals subject to the terms and
conditions of this Agreement, the Applicable Rules and the Reserved Powers. City shall not revoke or modify the Existing Approvals.
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3.2.2 Changes in Applicable Rules.
3.2.2.1 Non-Application of Changes in Applicable Rules.
Any change in, or addition to, the Applicable Rules, including, without limitation, any
change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum,
resolution, motion, policy, order or moratorium, initiated or instituted for any reason
whatsoever and adopted by the City Council, Planning Commission or City Agency, or
by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise
of the City’s Reserved Powers or are otherwise expressly allowed by this Agreement or
consented to in writing by Developer.
3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with
changes occurring from time to time in the Uniform Codes pursuant to the Reserved
Powers.
3.2.2.3 Changes Mandated by Federal or State Law. This
Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be
modified or suspended as may be necessary to comply with such state or federal laws or
regulations.
3.2.2.4 Special Taxes and Assessments. Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against any and
all special taxes, assessments, levies, charges and/or fees imposed with respect to any
assessment districts, Mello-Roos Community Facilities Districts, maintenance districts or
other similar districts which would include the Property or the Project.
3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially
adopted plans and policies otherwise in conflict with the Applicable Rules if (i) agreed to in
writing by Developer, or (ii) result from the Reserved Powers.
3.2.4 Subsequent Development. The City shall not require Developer to
obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers.
3.2.5 Effective Development Standards. The City agrees that with
respect to the Project it is bound to permit development of the Project in accordance with the
Existing Approvals including without limitation, the uses, intensity and density as permitted by
the Existing Approvals, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary
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Action which must be issued by the City in order for the Project to proceed, provided that
Developer reasonably and satisfactorily complies with all City-wide standard procedures and
policies of the City for processing any such Discretionary Action and pays any applicable
Processing Fees and Charges. The 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 Agreement,
3.2.6 Timing and Sequencing of Development. The Project shall be
completed in one construction phase, including all general grading, site preparation, utility lines
and infrastructure. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates,
competition and other similar factors. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo (1984) 37 Cal.3d 455, that the failure of the parties therein
to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the Parties’ intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to
develop the Property, or to not develop the Property, in such order and such rate and at such time
as Developer deems appropriate within the exercise of its subjective business judgment in its sole
and absolute discretion; provided, however, that upon commencement of any work related to the development or construction of the Project, or any portion thereof, the Developer shall diligently
prosecute the same to completion without substantial interruption in accordance with applicable
permits and requirements under this Agreement, subject to Force Majeure. In the event an
ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of
the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the
implementation or construction of the Mitigation Measures, City agrees, to the maximum extent
permitted by law, that such ordinance, resolution or other measure shall not apply to the Project,
the Property or this Agreement, unless such changes are adopted pursuant to the City’s exercise
of its Reserved Powers or other applicable provisions of this Agreement.
3.2.7 Impact Fees; Credit for Developer Installed Facilities. The Project
shall be subject to the Impact Fees and crediting provisions related thereto in force at the time of
application and as may be amended from time to time and are not restricted or limited in any way
by this Agreement. Nothing contained herein shall be construed to prohibit the City from
imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project.
3.3 Processing Fees; Extraordinary Processing Consultant Charges and
Environmental Review.
3.3.1 Processing Fees and Charges. Developer shall pay all Processing
Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought.
3.3.2 Extraordinary Processing Consultant. Developer may request that
the City engage an Extraordinary Processing Consultant to coordinate and expedite the
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processing of actions required through the Ministerial Permits and Approvals and all
Discretionary Actions applicable to the Project. If so requested and the City deems it necessary,
in its sole discretion, it will engage such Extraordinary Processing Consultant and the Developer
shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7.20 hereof.
3.3.3 Environmental Review. The City has conducted extensive
environmental review of the Project and has adopted the Mitigation Measures. The City intends
that Ministerial Permits and Approvals are not actions subject to requirements for further
environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
4.1 Vested Right to Develop Property. Subject to the terms of this
Agreement, Developer shall have a vested right to develop the Property in accordance with, and
to receive the benefits set forth and provided in, the Existing Approvals. In the absence of a
default by Developer, City shall not revoke, rescind, impede or thwart any of the Existing Approvals.
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC
PERFORMANCE.
5.1 Annual Review. During the Term and so long as this Agreement is in
effect, Developer shall initiate and the City shall conduct an Annual Review of Developer’s compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement.
The Annual Review shall be initiated and conducted in accordance with the Procedures
Resolution.
5.2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City’s Procedures Resolution on each
occasion that Developer submits its evidence for the Annual Review. Developer shall also
reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or
financing consultant cost necessary to accomplish review of amendments pursuant to Section 7.5
of this Agreement. Such reimbursement shall be due within thirty (30) days after receipt of invoice from the City.
5.3 Default by Developer.
5.3.1 Default. In the event the City reasonably determines that
Developer has failed to perform any of its obligations under this Agreement, or that any such
obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City’s right to compel
specific performance of the obligations of Developer under this Agreement shall be subject to the
limitations set forth in Section 5.3.4. Further, the City shall have no right to monetary damages
except as set forth in Section 5.4.2.
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5.3.2 Notice of Default. In the event the City reasonably determines that
Developer is in default of any of its obligations under this Agreement, the City shall send a
notice of such alleged default(s) to Developer in which the allegations of default shall be set
forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence
to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in
no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any
monetary default(s) not later than thirty (30) days after the receipt of such notice of default, and
(ii) any non-monetary default(s) not later than ninety (90) days after the receipt of such notice of default or such longer period as necessary to cure default as agreed to by City in its sole
discretion. The Parties may mutually agree in writing to extend the time periods set forth in this
Section.
5.3.3 Termination for Failure to Cure Default. If after the cure period
provided for in Section 5.3.2 has lapsed and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or
terminate this Agreement in accordance with the Procedures set forth in Sections 7.2 and 7.3 of
the Procedures Resolution.
5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City shall have no right under this Agreement to seek a remedy of specific performance with
respect to the Project in the event of an abandonment of the Project after construction has
commenced. The City’s right to seek specific performance to compel completion of the Project
(including portions of the Project) in the event of such abandonment after construction has
commenced shall be specifically limited to (i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public
property initiated in connection with the Project with the choice of whether to demolish or
complete such improvements and the method of such demolition or completion of such
improvements to be selected by the City in its sole discretion, and (ii) compelling Developer, at
the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish,
complete or secure such improvements and the method of such demolition, completion and
securing of such improvements to be selected by Developer in its sole discretion. The City's
specific performance remedy shall include the right to require dedication to the City of the
improvements located on public property upon completion together with conveyance of real property as contemplated by this Agreement. Prior to Commencement of Construction,
Developer shall post a performance bond or other security in an amount and form reasonably
satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted
improvements located on public property and/or located on the Property. The Developer’s
contractor's performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptable to City. Nothing in this Section 5.3.4 shall limit the
City’s enforcement of all applicable provisions of the Applicable Rules, Existing Approvals,
Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter
constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to
serve the Project actually completed), termination of this Agreement in accordance with the
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provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in
any way the City’s monetary remedies as provided for in Section 5.4.2 hereof.
5.3.5 Damages. The City shall have the right to recover (1) actual
damages only (and not consequential, punitive or special damages, each of which is hereby expressly waived) for (a) the Developer’s failure to pay sums to the City as and when due under this Agreement, but subject to any express conditions for such payment set forth in this
Agreement, and (b) the Developer’s failure to make payment due under any indemnity in this
Agreement, (2) any and all damages relating to the Developer's failure to construct Public
Improvements in accordance with City-approved plans and specifications and in accordance with all applicable laws (but only to the extent that the City first collects against any security, including but not limited to bonds, for such Public Improvements), and (3) attorney's fees and
costs when awarded by an arbitrator or a court with jurisdiction. For purposes of the foregoing,
“actual damages” shall mean the actual amount of the sum due and owing under this Agreement,
with interest as provided by law, together with such judgment collection activities as may be ordered by the judgment and no additional sums.
5.4 Default by City.
5.4.1 Notice of Default. In the event the Developer reasonably
determines that the City is in default of any of its obligations under this Agreement, the
Developer shall send a notice of such alleged default(s) to the City in which the allegations of default shall be set forth in sufficient detail to enable the City to ascertain the specific actions
necessary to cure the alleged default(s). Upon receipt of written notice of default from
Developer, the City shall promptly commence to cure the identified default(s) at the earliest
reasonable time after receipt of the notice of default and shall complete the cure of such
default(s) not later than sixty (60) days after receipt of the notice of default or such longer period as necessary to cure default as agreed to by the Developer in its sole discretion. The Parties may
mutually agree in writing to extend the time periods set forth in this Section.
5.4.2 Specific Performance and Mandamus. It is acknowledged by the
Parties that the City would not have entered into this Agreement if it were to be liable in
damages under or with respect to this Agreement or the application thereof. In addition, the Parties agree that monetary damages are not an adequate remedy for Developer if the City should
be determined to be in default under this Agreement. The Parties further agree that specific
performance and mandamus shall be Developer’s only remedies under this Agreement and
Developer may not seek monetary damages in the event of a default by the City under this
Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement (including without limitation special, incidental or
consequential damages) and expressly waives its right to recover damages under this Agreement.
Developer may seek specific performance of City’s obligations under this Agreement or a writ of
mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as applicable, to compel
the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged
default(s) on City and lapse of the period given for City to cure such default(s), all in accordance
with Section 5.4.1, and for so long as City remains in default of its obligations under this
Agreement.
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6. PUBLIC BENEFITS.
6.1 Increase in Property Taxes. The Project will generate significant
additional property taxes.
6.2 Recreational Amenities Payment. Developer shall deliver to the City the Recreational Amenities Payment in the amount of Two Hundred Thousand and No/100 Dollars
($200,000.00), which payment shall be paid to the City prior and as a condition precedent to the
City’s approval of the Final Map. Said amount shall be used by the City, in its sole discretion, to
fund certain public park and recreational improvements which may be constructed by the City
near the Project.
7. GENERAL PROVISIONS.
7.1 Date Agreement Becomes Effective. This Agreement shall become
effective on the Effective Date.
7.2 Term.
7.2.1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of five (5) years after the
Effective Date, unless extended or earlier terminated as provided herein.
7.2.2 Early Termination of Agreement. This Agreement is terminable:
(i) by mutual written agreement of the Parties; or (ii) by either Party following an uncured
default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance
of a final order, after all appeals have been exhausted, directed to the City as a result of any
lawsuit filed against the City to set aside, withdraw or abrogate the approval of the City Council
of this Agreement; or (iv) if termination occurs pursuant to the provisions of the Procedures
Resolution and such termination is so intended thereby.
7.2.3 Automatic Termination of Agreement. If not already terminated
by reason of any other provision in this Agreement, or for any other reason, this Agreement shall
automatically terminate and be of no further force and effect upon completion of the Project
pursuant to the terms of this Agreement and any further amendments thereto and the issuance of
all occupancy permits and acceptance by the City of all dedications and improvements as required by the development of the Project.
7.2.4 Effect of Termination. Following expiration of the Term, early
termination pursuant to Section 7.2.2 above, or automatic termination pursuant to Section 7.2.3,
this Agreement shall be of no further force and effect, except for any provisions which, by their
express terms, survive the expiration or termination of this Agreement.
7.3 Force Majeure: Extension of Time of Performance. In addition to
specific provisions of this Agreement, whenever a period of time is designated within which
either Party hereto is required to do or complete any act, matter or thing, both the time for the
doing or completion thereof and the Term of this Agreement and the specific obligation
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hereunder shall be extended by a period of time equal to the number of days which such Party is
prevented from, or is unreasonably interfered with the doing or completion of such act, matter or
thing because of the following causes, which causes are beyond the reasonable control of the
Party to be excused including: war, terrorist acts, insurrection; strikes; walk-outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; Litigation and administrative proceedings
which are brought against the Project by a third party (not including any administrative
proceedings contemplated by this Agreement in the normal course of affairs such as the Annual
Review); restrictions imposed or mandated by other governmental entities (“Governmental
Restrictions”); enactment of conflicting state or federal laws or regulations (“Conflicting Laws”); judicial decisions (“Judicial Decisions”); or similar bases for excused performance which is not
within the reasonable control of the Party to be excused (financial inability excepted). This
Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of
Developer or, if not dismissed within ninety (90) days, by any third parties against Developer. A
Party wishing to invoke this Section shall notify in writing the other Party of that intention within thirty (30) days of the commencement of any such cause for delay and shall, at that time, specify
the reasons therefor, the provisions of this Agreement that will be delayed as a result, and the
period of such extension, if known, or, if not known, the party’s best estimate thereof. The
failure to so notify the other Party within that period as to the cause for delay shall constitute a
waiver of any right to later rely upon this Section with respect to that cause. In the event any such extension continues for more than one hundred eighty (180) days, any Party not then in
Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written
notice to the other and, in that event, the Parties shall have no further obligations hereunder.
7.4 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any
federal actions.
7.5 Amendments. This Agreement may be amended from time to time in
writing in accordance with Government Code section 65868 and the Procedures Resolution.
7.6 Assignment.
7.6.1 Right to Assign. Developer 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 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 Developer in the Property (or a portion thereof), which, prior to Developer’s acquisition of fee
title to the Property shall mean and refer to Developer’s equitable interest in the Property. In the
event of any such sale, mortgage, hypothecation, assignment or transfer, (a) Developer shall
notify the 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 Developer and such transferee shall provide that the transferee shall be liable for the performance of all
obligations of Developer pursuant to this Agreement and the Existing Approvals with respect to
Developer’s interest in the Property (or portion thereof) so transferred. Upon the express written
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assumption of any and all of the obligations of Developer under this Agreement by such
transferee, the transfer shall, without any act of or concurrence by the City, relieve Developer of
its legal duty to perform said obligations under this Agreement with respect to Developer’s
interest in the Property (or portion thereof), so transferred, except to the extent Developer is in default under the terms of this Agreement.
7.7 Mortgage Rights.
7.7.1 Encumbrances on the Property and this Agreement. The Parties
hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at
Developer’s sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights herein granted, to grant a Mortgage on its interests in this
Agreement or any part or parts thereof, under one or more Mortgages and to assign this
Agreement as collateral security for any such Mortgage.
7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement
shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and
for value, and any acquisition or acceptance of title or any right or interest in or with respect to
the Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to
foreclosure, lease termination or otherwise) shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, be subject to all of the terms and
conditions of this Agreement and any such Mortgagee who takes title to the Property or any
portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising
under this Agreement.
7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set
forth in this Agreement to perform the obligations of Developer or other affirmative covenants of
Developer hereunder or to guarantee such performance, unless such Mortgagee expressly
assumes the rights and obligations of the Developer and except that (i) the Mortgagee shall upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this
Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition
to the performance of any covenant by the City, the performance thereof shall continue to be a
condition precedent to the City’s performance hereunder. Although not obligated to do so, upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act
or thing which may be necessary and properly done in the performance and observance of the
agreements, covenants and conditions hereof to prevent termination of this Agreement in
accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full
access to the Property for purposes of accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the
same would have been done by the Developer.
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7.7.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City be entitled to receive written notice from the
City of the result of the Annual Review and of any default by Developer of its obligations set
forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety (90) days
after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee
upon obtaining possession of the Property, such Mortgagee shall have the right to seek or obtain
possession with diligence and continuity through a receiver or otherwise, and to remedy or cure
such default within ninety (90) days after obtaining possession, and, except in case of emergency or to protect the public health or safety as determined by the City in its reasonable discretion,
City may not exercise any of its remedies set forth in this Agreement until expiration of such
ninety (90) day period whether commencing upon receipt of notice or upon obtaining possession
of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a
default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90) day period, the Mortgagee shall have such additional
time as is reasonably necessary to remedy or cure such default. Any notice of termination
delivered in violation of this Section 7.7.4 shall be rendered void. In any case where, sixty (60)
days after receipt by the Mortgagee of the notice of the Developer’s default, the holder of any
Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it has exercised the option, is not proceeding diligently with
the cure, the City may proceed with termination of this Agreement and any further obligations of
City hereunder.
7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this
Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding
involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting
foreclosure or other proceedings shall be extended for the period of the prohibition. In addition,
if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreement upon the same terms and conditions set forth in this Agreement may be entered into between such Mortgagee and City.
7.7.6 Termination Subject to Mortgagee Rights. All rights of the City to
terminate this Agreement, vis-a-vis the Mortgagee, as a result of the occurrence of any default
shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy
such default or acquire Developer’s interests hereunder, or having failed to commence
foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7.7.4
above.
7.7.7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety
(90) days prior written notice to each Mortgagee who has requested such notice.
7.7.8 New Agreement Upon Default by Developer. City agrees that in
the event of termination of this Agreement by reason of a default by Developer, the City will
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enter into a new development agreement with the most senior Mortgagee whose Mortgage
encumbers this Agreement requesting a new development agreement for the remainder of the
term of this Agreement, such new agreement being effective as of the date of such termination,
and containing such terms, provisions, covenants and agreements as herein contained, provided:
(a) The senior Mortgagee shall make written request upon City
for such new development agreement within thirty (30) days after the date of termination;
(b) The senior Mortgagee shall pay to the City at the time of
the execution and delivery of such new development agreement any and all sums which would,
at the time of the execution and delivery thereof, be due and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys’ fees and costs, to which the City was
subjected by reason of such default;
(c) The senior Mortgagee shall perform and observe all
covenants herein contained on Developer’s part to be performed, and shall further remedy any
other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that same are curable or may be performed by the senior Mortgagee; and
(d) Notwithstanding anything to the contrary expressed or
implied elsewhere in this Agreement, any new development agreement made pursuant to this
Section shall be superior to any Mortgage to the same extent as this Agreement.
7.7.9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense
of the Developer (including related legal fees incurred by the City), in form satisfactory to each
Mortgagee and City, between City, Developer and the Mortgagee(s), confirming all of the
provisions hereof and/or such other documents containing terms and provisions customarily
required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and
obligations of the City, or otherwise amend this Agreement and/or the obligations of the
Developer as set forth in this Agreement
7.7.10 Material Notices. The Developer shall give all Mortgagees notice
of any Litigation and the parties hereby consent to intervention in such Litigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the
proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made
in connection therewith.
7.7.11 Mortgagee Right to Assign. Foreclosure of any Mortgage, or any
sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its
designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof,
shall not require the consent of the City or constitute a breach of any provision of or a default
under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the
purchaser or other transferee in connection therewith as the Developer hereunder.
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7.8 Covenants. The provisions of this Agreement shall constitute covenants
which run with the land comprising the Property for the benefit thereof and as a burden thereon,
and the burdens and benefits hereof shall bind and inure to the benefit of all assignees,
transferees and successors to the parties.
7.9 Implementation. Upon satisfactory completion by Developer of all
required applications and payment of applicable Processing Fees and Charges, including the fee
for processing this Agreement, if Developer proceeds with the Project, the City and Developer
shall commence and diligently process all required steps necessary for the implementation of this
Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other
information necessary for the City to carry out its processing obligations hereunder.
7.10 Relationship of the Parties. 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 Agreement. The only relationship between the City and the Developer is that of a government entity regulating the
development of private property and the owner of such private property. Further, the City and
Developer hereby renounce the existence of any form of joint venture or partnership between
them and agree that nothing herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners.
7.11 Cooperation in the Event of Third Party Litigation. In the event legal
action is instituted by a third party, including any other governmental entity or official
challenging the validity or enforceability of any provision of this Agreement, or the Existing
Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each
provision of this Agreement; provided, however, that Developer agrees to and shall defend,
indemnify, save and hold the City and its elected and appointed representatives, boards,
commissions, offices, agents, employees, consultants and attorney’s (collectively, the “City” in this section 7.11) harmless from any and all claims, costs and liability, including without
limitation, court costs and attorneys’ fees awarded to any party, to the extent they result from any
such Litigation, and shall reimburse the City for its actual costs in defense of the action or
proceeding, including, but not limited to the time and expenses of the City Attorney's Office and
any consultants. As the indemnifying Party and provided that Developer demonstrates to City, to City’s reasonable satisfaction, that Developer has the financial wherewithal to indemnify the
City hereunder at the time of any such Litigation, Developer shall at all times retain final
authority and control over all documents to be filed in such Litigation and notwithstanding the
provisions of this Section 7.11, the City shall be deemed to have waived its rights to be
indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer’s prior written approval, which approval shall
not be unreasonably withheld. This section shall survive any judgment invalidating all or any
part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against
any such legal action and shall pay any attorneys' fees awarded against the City or the Developer,
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or both, resulting from any such legal action. The Developer shall be entitled to any award of
attorneys' fees arising out of any such legal action.
7.12 Notices. Any notice or communication required hereunder between the
City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of
(i) actual receipt by any of the addresses designated below as the Party to whom notices are to be
sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or delivered by courier, a notice shall be deemed to have been delivered when received by the Party to whom it is addressed. Any Party hereby may at any time, by giving ten (10) day’s
written notice to the other Party hereto, designate any other address in substitution of the address,
or any additional address, to which such notice or communication shall be given. Such notices
or communications shall be given to the Parties at their addresses set forth below:
If to City: With Copies to:
City Clerk City Attorney
City of Anaheim City of Anaheim
200 South Anaheim Blvd., 2nd Floor 200 South Anaheim Blvd., Suite 356
Anaheim, CA 92805 Anaheim, CA 92805
If to Developer: With Copies to:
Greg McCafferty John A. Ramirez, Esq.
Sagecrest, LLC Rutan & Tucker, LLP
2400 East Katella 611 Anton Blvd, 14th Floor
Anaheim, CA 92806 Costa Mesa, CA 92626
7.13 Recordation. The City’s Clerk shall record a copy of this Agreement with
the Registrar-Recorder of Orange County within ten (10) business days following the later to
occur of (i) execution by both parties, or (ii) the Effective Date of the Authorizing Ordinance.
To the extent that the Property consists of property under Lease by Developer, this Agreement
shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee.
7.14 Developer Hold Harmless. Developer hereby agrees to and shall
indemnify, save, hold harmless and defend the City, and its elected and appointed
representatives, boards, commissions, officers, agents, employees, consultants and attorneys
(collectively, the “City” in this Section 7.14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from any of Developer's acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, of the
Property and/or the Project, and/or Developer’s activities on the Property (or the activities of the
Developer's employees, contractors, subcontractors, agents, representatives, or independent
contractors on the Property), including without limitation the construction of the Project. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless
20
and/or defend it to the extent that such claims, costs or liability arise from the negligent acts, or
negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with
Developer in the defense of any matter in which Developer is defending and/or holding the City
harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appears to be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier
expiration of this Agreement.
7.15 Successors and Assigns. Subject to the limitations on transfer set forth in
this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants
and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors (by merger, consolidation or otherwise), assigns and transferees, and all persons or entities acquiring the Property or any portion thereof or any
interest therein, whether by sale, operation of law, or in any manner whatsoever.
7.16 Severability. If any provisions, conditions, or covenants of this
Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to
the fullest extent permitted by law.
7.17 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and
such waiver refers expressly to the Section containing the waived provision. No waiver of any
right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or
remedy in respect of any other occurrence or event.
7.18 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be
enforceable by any other persons or entities other than the Parties.
7.19 Expedited Processing. Developer and City agree to cooperate in the
expedited processing of any legal action seeking mandamus, specific performance, declaratory
relief or injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the prosecution/defense of the action, provided such cooperation shall not require any Party to
waive any rights.
7.20 Requests for Payment. Except for the Recreational Amenities Payment,
with respect to any requests by the City for payment of amounts due under this Agreement,
Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or
requests for payment or shall identify any disputed amounts within twenty (20) days after
receipt. At Developer’s request, the City shall provide Developer with reasonable information or
back-up materials supporting such invoices or requests for payment at City offices, with
reasonable notice, during business hours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed.
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7.21 Entire Agreement. This Agreement and the documents, agreements and
exhibits referenced herein or attached hereto set forth and contain the entire understandings and
agreements of the parties, and there are no oral or written representations, understandings or
ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants
shall be admissible in any proceedings of any kind or nature to interpret or determine the
provisions or conditions of this Agreement.
7.22 Conflict of Laws. With the exception of the Force Majeure provisions set
forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the
obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals
and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern.
7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each Party has received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions hereof. The
provisions of this Agreement shall be construed as to their fair meaning, and not for or against
any Party based upon any attribution to such Party as the source of the language in question. The
headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement.
7.24 Counterparts. This Agreement is executed in six duplicate originals, each
of which is deemed to be an original.
7.25 Organization and Standing of Developer. Developer is a limited liability
company duly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. All consents or approvals of Developer’s members required
in connection with the execution and delivery by the Developer of this Agreement will have been
obtained and delivered to the City.
[Remainder of page intentionally left blank. Signatures appear on next page.]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first written below.
Dated: "CITY"
CITY OF ANAHEIM, a municipal corporation and charter city
By:
ATTEST:
LINDA N. ANDAL, CITY CLERK
By:
APPROVED AS TO FORM:
Theodore J. Reynolds Assistant City Attorney
"DEVELOPER"
SAGECREST, LLC, a California limited liability company
By:_______________________
Gregory McCafferty Its: Member
By:_________________________
Joshua Haskins
Its: Member
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California ) County of )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California ) County of )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT "A"
SITE MAP
EXHIBIT "B"
LEGAL DESCRIPTION
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
PARCEL 2 OF PARCEL MAP NO. 88-335, AS PER MAP FILED IN BOOK 245 PAGES 11 TO 18 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS,
MINERAL RIGHTS, AND OTHER HYDROCARBON SUBSTANCES BY WHATEVER
NAME KNOWN, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET, AS
RESERVED BY TEXACO ANAHEIM HILLS, INC., A CORPORATION, IN THE
CORPORATION GRANT DEED RECORDED JANUARY 4, 1983, AS INSTRUMENT NO.
83-002464, OF OFFICIAL RECORDS.
APN: 363-472-03
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.