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6152ORDINANCE NO. 6152 AN ORDINANCE OFTHE THE CITY COUNCIL OF THE CITY OF ANAHEIM (i) APPROVING AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00003 BY AND BETWEEN THE CITY OF ANAHEIM AND BRE PROPERTIES, INC. (ii) MAKING CERTAIN FINDINGS RELATED THERETO, AND (iii) AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT FOR AND ON BEHALF OF THE CITY. WHEREAS, On or about June 7, 2005, the City of Anaheim ("City") and BRE Properties, Inc. and the Peter Dunkel Revocable Family Trust and the Larry Dunkel Revocable Family Trust entered into that certain Development Agreement No. 2005-00003 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462125 (the "Development Agreement") with respect to that certain real property as legally described in Attachment No. 1, which is attached hereto and incorporated herein by this reference. Copies of the Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California; and WHEREAS, the Development Agreement provides for the development of a 255 unit condominium project; and WHEREAS, subsequent to the recordation of the Development Agreement, the fee title interest in the project was sold, transferred, conveyed or assigned to BRE Properties, Inc. ("Owner"), making BRE PROPERTIES, INC. the sole Owner of the Project; and WHEREAS, pursuant to Section 18 of the Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, Owner, submitted a request to extend the Term, as described in Section 2 of the Development Agreement from a period of five (5) years to a period of ten (10) years; and WHEREAS, the City Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on May 11, 2009, at 2:30 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.60, to hear and consider evidence for and against said amendment to Development Agreement, and to investigate and make findings and recommendations in connection therewith; and WHEREAS, the City Planning Commission, by its Resolution No. PC2009-55, recommended that the City Council approve Amendment No. 1 to the Development Agreement to extend the Term of the Development Agreement based on the investment and progress made by the applicant to meet the obligations of the Development Agreement, and in recognition of the on-going market conditions which make compliance with the terms of the Development Agreement extremely difficult within the Initial Period as described in Section 2. The Planning Commission further recommended that two new conditions of approval be added to Exhibit "C" to address issues pertaining to interim erosion and sediment control during the period of time the site remains vacant and undeveloped; and WHEREAS, the City and Owner intend, in this Amendment No. 1, to revise Section 2 of the Development Agreement to extend the Term of the Development Agreement and add two new conditions of approval to Exhibit "C" of the Development Agreement to provide for the development of a 255 unit condominium project within 10 years, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein; and WHEREAS, the City Council did hold a public hearing on Amendment No. 1 to the Development Agreement, notice of said public hearing having been duly given as required by law; and WHEREAS, the Anaheim City Council has reviewed the proposal and does hereby find that the previously -approved Mitigated Negative Declaration prepared in conjunction with Development Agreement No. 2005-00003 is adequate to serve as the required environmental document in connection with this request; and WHEREAS, after careful consideration of the recommendations of the City Planning Commission and all evidence and reports offered at said hearing the City Council does hereby find and determine, with respect to the request for said amendment to Development Agreement, that all of the conditions and criteria for the approval of said amendment are present as follows: 1. That Amendment No. l to the Development Agreement has been properly requested pursuant to Section 5.0 of the Procedures and Requirements for Consideration of Development Agreements and Section 18 of the Development Agreement. 2. That Amendment No. 1 to the Development Agreement is consistent with the City's General Plan in that it is in conformance with the General Plan Mixed Use land use designation and with the goals, policies and objectives for The Platinum Triangle as set forth in the General Plan. 3. That Amendment No. 1 to the Development Agreement will contribute to the orderly development of property in the surrounding area in that it is in conformance with and implements The Platinum Triangle Master Land Use Plan and the PTMU Overlay Zone requirements. 4. That Amendment No. 1 to the Development Agreement is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim. 5. That Amendment No. 1 to the Development Agreement constitutes a lawful, present exercise of the City's police power and authority under the Statute, the Enabling Ordinance and the Procedures Resolution. 2 6. That Amendment No. 1 to the Development Agreement is entered into pursuant to and in compliance with its charter powers and the requirements of Section 65867 of the Statute, the Enabling Ordinance and the Procedures Resolution. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: SECTION 1. That Amendment No. 1 to Development Agreement No. 2005-00003 be, and the same is hereby, approved as attached hereto and incorporated herein by this reference. SECTION 2. That the Mayor be, and is hereby, authorized to execute said Amendment No. 1 to Development Agreement 2005-00003 for and on behalf of the City. THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the 21 st day of July , 2009, and thereafter passed and adopted at a regular meeting of said City Council held on the 28th day of July , 20095 by the following roll call vote: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kring NOES: NONE ABSENT: NOS ABSTAIN: NONE CITY OF HEIM By: , MAYOR OF THE CI OF ANAHEIM ATTEST: CITY CLERK OF THE CITY OF AHEIM 3 SPACE ABOVE THE LINE IS FOR RECORDER'S USE AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00003 By and Between THE CITY OF ANAHEIM and BRE PROPERTIES, INC. 4 AMENDMENT NO.1 TO DEVELOPMENT AGREEMENT NO. 2005-00003 This AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00003 (this "Amendment No. 1"), dated for purposes of identification only as of May 1, 2009 (the "Date of Amendment"), is made by BRE Properties, Inc., a Maryland corporation. RECITALS A. On or about June 7, 2005, the City of Anaheim ("City") and BRE Properties, Inc. and the Peter Dunkel Revocable Family Trust and the Larry Dunkel Revocable Family Trust entered into that certain Development Agreement No. 2005-00003 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462125 (the "Development Agreement") with respect to that certain real property as legally described in Attachment No. 1, which is attached hereto and incorporated herein by this reference. Copies of the Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California. B. The Development Agreement provides for the development of a 255 unit condominium project, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein. C. Subsequent to the recordation of the Development Agreement, the fee title interest in the project was sold, transferred, conveyed or assigned to BRE Properties, Inc. ("Owner"), making BRE Properties, Inc. the sole Owner of the Project. D. Pursuant to Section 18 of the Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, Owner, submitted a request to extend the Term, as described in Section 2 of the Development Agreement from a period of five (5) years to a period of ten (10) years. E. On May 11, 2009, the Anaheim City Planning Commission recommended approval to City Council of Owner's request for an amendment to the Development Agreement to extend the Term of the Development Agreement based on the investment and progress made by the applicant to meet the obligations of the Development Agreement, and in recognition of the on-going market conditions which make compliance with the terms of the Development Agreement infeasible as described in Section 2. The Planning Commission further recommended that two new conditions of approval be added to Exhibit "C" to address issues pertaining to interim erosion and sediment control during the period of time the site remains vacant and undeveloped. F. On , 2009, the Anaheim City Council adopted an ordinance approving an amendment to the Development Agreement to extend the Term of the Development Agreement and add two new conditions of approval pertaining to interim erosion and sediment control. 5 G. The City and Owner intend, in this Amendment No. 1, to revise Section 2 of the Development Agreement to extend the Term of the Development Agreement and add two new conditions of approval to Exhibit "C" of the Development Agreement to provide for the development of a 255 unit condominium project within 10 years, as more particularly set forth in the Final Site Plan, which is attached to the Development Agreement as Exhibit `B" and incorporated therein. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: SECTION 1. That Section 1.16 of the Development Agreement be, and the same is hereby, amended to read as follows: "Owner. "Owner" is BRE Properties, Inc., any person or entity with which or into which BRE Properties, Inc. may merge, and any person or entity who may acquire substantially all of the assets of BRE Properties, Inc., and any person or entity who receives any of the rights or obligations under this Development Agreement in accordance with the provisions of Section 28 (Assignment) of this Development Agreement." SECTION 2. That Section 2.1 of the Development Agreement be, and the same is hereby, amended to read as follows: "2.1 The term of this Development Agreement (hereinafter called "Term") shall be that period of time during which this Development Agreement shall be in effect and bind the parties hereto. The Term shall commence on the Development Agreement Date and shall extend for a period of ten (10) years, terminating at the end of the day on the tenth anniversary of the Development Agreement Date, subject to the periodic review and modification or termination provisions defined in Section 25 and Section 27, respectively, of this Development Agreement, or the provisions of 30.1 of this Development Agreement." SECTION 3. That two new conditions of approval be, and the same are hereby, added to Exhibit "C" (Development Agreement Conditions of Approval) of the Development Agreement to read as follows: 4474. That within sixty (60) days from the effective date of the ordinance approving Amendment No. 1 to Development Agreement No. 2005-00003 the applicant shall demonstrate to the City Engineer or his/her designee that coverage has been obtained under California's General Permit for Stormwater Discharges Associated with Construction Activity by providing a copy of the 9 Notice of Intent (NOI) submitted to the State Water Resources Control Board and a copy of the subsequent notification of the issuance of a Waste Discharge Identification (WDID) Number. The applicant shall prepare and implement an updated Stormwater Pollution Prevention Plan (SWPPP). A notice posted at the site shall indicate how to arrange a review of the updated SWPPP. Required measures shall include the following: • Current name and 24 hour contact information for individual maintaining erosion control and sediment control measures. • Incorporate Dust Control BMPs. • Describe the long-term operation and maintenance; identify the responsible parties, and funding mechanisms for the Erosion and Sediment Control BMPs. 75. That within sixty (60) days from the effective date of the ordinance approving Amendment No. 1 to Development Agreement No. 2005-00003 the applicant shall submit to the City Engineer or his/her designee a revision to the approved grading plans with updated information as follows: • New WDID number. • New developer contact information. • Updated utility contact information. • Current limits of construction. • New location of proposed fence. • Describe the long-term operation and maintenance; identify the responsible parties, and funding mechanisms for the Erosion and Sediment Control BMPs." SECTION 4. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of the Development Agreement shall remain in full force and effect. The Development Agreement and this Amendment No. 1 shall hereinafter be collectively referred to as the "Agreement." The Agreement integrates all of the terms and conditions of understanding between the City and Owner and supersedes all negotiations or previous agreements with respect to the subject matter hereof. SECTION 5. EFFECTIVE DATE. This Amendment No. 1 to Development Agreement No. 2005-00003 shall take effect immediately upon recordation in the Office of the County Recorder of Orange County, California. 7 IN WITNESS WHEREOF, OWNER HAS EXECUTED THIS AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00003 AS OF THE DATE SET FORTH BELOW. DATE: "OWNER" BRE Properties, Inc. By: Name: Title: (Signature of owner(s) must be acknowledged by a Notary Public) APPROVED AS TO FORM: CRISTINA TALLEY, CITY ATTORNEY By: Mark S. Gordon Assistant City Attorney ATTACHMENT NO. 1 [LEGAL DESCRIPTION] The hmd rcfcm-d to hm-in is situated in the State of California, County of Onnge, City of ANAHEIM, and is desanbed as follows: PARCEL A: LOT 2 OF TRACT NO. 1693 1, AS PER MAP RECORDED IN BOOK 88 1, PAGES 9 THROUGH 12 INCLUSIVE OF MISCELLANFOUS MAPS, IN TIM'OFFICE OF THE ORANGE COUNTY R)=RD EXCEPT THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERAL& AND MINERAL ORES OF EVERY KIND AND CHARACTER NOW KNOWN TO EXIST OR HEREAFTER DISCOVERED UPON, WrMIN OR UNDERLYING SAID LAND OR THAT MAY HE PRODUCED TH12REF1OM, INCLUDING, WrMOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WMI TFIM EXCLUSrVF- AND PERPETUAL RIGHT OF SAID GRAN -MRS, THEIR SUCCESSORS AND ASSIGNS, OF INGRESS AND EGRESS BENEATH THE SURFACE OF SAID LAND TO EXPLORE FOR, EXTRACT, hffNE AND RE -MOW THE SAME, AND TO MAKE SUCH USE OF THE SAID LAND BENEATH THE SURFACE AS IS NECESSARY OR USEFUL IN CONNFXMCN THEREWITH, WIlICH USE MAY INCLUDE LATERAL OR SLANT DRILLING, BORING, DIGGING OR SMX40 OF WELLS, SILkFTS, OR TUNNELS,, PROVIDED, HOWEVER, THAT SAID GRANTORS, THEIR SUC=, SOPS AND ASSIGNS, SHALL NOT USE THE SURFACE OF SAID LAND IN THE EXERCISE OF AMY OF SAID RIGHTS. AND SHALL NOT DISTURBTIIE SURFACE OF SAID LAND OR ANY IMPRONTMENTS THEREON, AS RESERVED BY PACIFIC ELECTRIC RAILWAY COMPANY, A CORPORATION, AND NORTHWESTERN PACIFIC RAILROAD COMPANY. A CORPORATION, IN DRED RECORDED NOVEMBER 21,150 IN BOOK 5517, PAGE 219 OF OFFICIAL RECORDS. PARCEL 13,, A NO-N-EXCLUS AfF- RECIPROCAL EASEMENT FOP, PRJ V ATE SEWER A S SET T FORTH IN THAT CERTAIN "AGREEMENT FOR PRA"ATE SEWER EA9&MENr'REJC0RT)F.TJ MAY 23, 2U AS INSTRUUENT NO. 2006M3436a6 OF OFFICIAL RECORDS AND SHOWN THEREIN ON EXHMIT -A". 9MU"ira PERPLTUAL, NON-EXCLUSIVE EASEMENTS FOR ACCESS. INGRESS AND EGRESS FOP. VEHICULAR AND PEDESTRIAN ENTRY AS CREATED WTILAX CEkTAR14'"RECIPROCAL EASENIENTS AND MAINT33NANCE AGREEMFM— RECORDED JUNE 61,206 AS INMUMENT NO. 2006NO379W OF OFFICIAL RECORDS. 20'd AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA COUNTY OF ORANGE am a citizen of the United States and employed in the county aforesaid. I am over the age of eighteen years and not a party to or interested in the above -entitled matter. I am the current Custodian of Records for the Orange County Register and its publications, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California on June 7, 1984, Case No A-122949 in the County of Orange, State of California. The. advertisement that is adhered to this notice is a true printed copy as it was published in each regular and entire issue of the Anaheim Bulletin August 6, 2009 1 declare under penalty of perjury that the foregoing is true and correct. Executed at Santa Ana, Orange County, California, on September 18, 2009 Shelley Jernmett Custodian of Records For The Orange County Register 625 North Grand Ave Santa Ana CA 92701 See attached Proof of Publication SUMMARY PUBLICATION EIM OCO0.615 2 AN ORDINANCE OF T1fE CITY COUNCIL OF THE CITY OF ANAHEIM p) APPROVING AMENDMENT NO. 1To DEVELOPMENT AGREEMENT ND. 2005-00003 BY AND BETWEEN THE CITY 01 ANAHEIM AND ORE PROPERTIES, INC. 01) MAKpHG CERTAIN FlNDINGS RELATED THERETO, AND 'r AUTHORIZING THE MA' 9 RHAT0 o aTY D AMENDMENT FOR AND This ordinance approves an amendment to Development Avreement No. 2005-00003 by and between the City of Anaheim and BRE Properties, Inc.. to provide for the devel- opment Ota 255ARIA epartrnent development. This amend - the agree e t from oJu a 15, ent 18 o to June iS.. 2015. term of I. Unda N. Andal, City Clerk of the City of Anaheim, do hero - by oertify that the forepanAIs a summary of Ordinance NO. 6152 which Ordinance was Introduced at a regular measnpp of the CitV Council of the City of Anaheim Crl the 21st day Of July. 2009 and was duly passed and adopted at a regular (ollowtng decal vote OFon tete m bars thereof. of Jul V, 2009 by the AYES: ' or Tingle, ��1 Members Hernandez. NOES: NONE ABSENT: NONE ABSTAIN: NONE matter Cotes ed ni the taextbrof description ri^rte Na 61552sub~ has been prepered p --Wt to Section 512 of the Charter of the City of Anaheim. This summary does not include Cr de- scribe every provision of the ordnance and should not be retied on as a substitute for the full text of the ordiriance. To obtain a COOV of the full text of the ordinance, Please comact the 6:00 AM anOffice 5:00 PM, Monday through)RidW Them Isno Charge for the COPY. publish: Anaheim Sulletirt AugW6, 2009 9127866