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6162ORDINANCE NO. 6162 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM (i) APPROVING AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00001 BY AND BETWEEN THE CITY OF ANAHEIM AND BRE PROPERTIES, INC. PERTAINING TO THE RELOCATION OF AN ADJACENT DRIVEWAY (ii) MAKING CERTAIN FINDINGS RELATED THERETO, AND (iii) AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT FOR AND ON BEHALF OF THE CITY. WHEREAS, on 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. 2005-00001 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462123 (the "Development Agreement"); 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. (hereinafter referred to as "Owner"), making BRE Properties, Inc. the sole Owner of the Project; and WHEREAS, the Development Agreement provides for the development of a multiple -family residential project consisting of 320 residential dwelling units, public streets and a public park, as more particularly set forth in Final Site Plan, which is attached to the Development Agreement as Exhibit "B" and incorporated therein (also referred to herein as the "Project"); and WHEREAS, pursuant to Section 5.0 of the Procedures and Requirements for Consideration of Development Agreements adopted by the City Council, by its Resolution No. 82R- 565, and Section 18 of the Development Agreement, Owner has submitted a request to modify Section 9.5 of the Development Agreement ("Amendment No. 1 to Development Agreement"), relating to the required relocation of an adjacent vehicular driveway, to memorialize the interim circulation plan improvement and provide a mechanism for the reimbursement of costs incurred by the City for the future relocation of the Bank of America Driveway; and WHEREAS, the Anaheim City Planning Commission (hereinafter referred to as "Planning Commission") did hold a public hearing at the Civic Center in the City of Anaheim on September 30, 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 Planning Commission, by its Resolution No. PC2009-086, did recommend that the City Council approve Amendment No. 1 to Development Agreement to modify - 1 - Section 9.5 of the Development Agreement pertaining to the relocation of the Bank of America driveway; and WHEREAS, the City and Owner intend, by this Amendment No. 1 to Development Agreement, to modify Section 9.5 of the Development Agreement to memorialize the interim circulation plan improvement and provide a mechanism for the reimbursement of costs incurred by the City for the future relocation of the Bank of America Driveway, as more fully set forth in Amendment No. 1 to Development Agreement attached hereto and incorporated herein by this reference; 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. 2005-00001 is adequate to serve as the required environmental documentation in connection with this request; and WHEREAS, after careful consideration of the recommendations of the City Planning Commission and all evidence and reports offered at said hearing the City Council does hereby find and determine, with respect to the request for said amendment to Development Agreement, that all of the conditions and criteria for the approval of said amendment are present as follows: 1. That Amendment No. 1 to the Development Agreement has been properly requested pursuant to Section 5.0 of the Procedures and Requirements for Consideration of Development Agreements and Section 18 of the Development Agreement. 2. That Amendment No. 1 to the Development Agreement is consistent with the City's General Plan in that it is in conformance with the General Plan Mixed Use land use designation and with the goals, policies and objectives for The Platinum Triangle as set forth in the General Plan. 3. That Amendment No. 1 to the Development Agreement will contribute to the orderly development of property in the surrounding area in that it is in conformance with and implements The Platinum Triangle Master Land Use Plan and the PTMU Overlay Zone requirements. 4. That Amendment No. 1 to the Development Agreement is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim. 5. That Amendment No. 1 to the Development Agreement constitutes a lawful, present exercise of the City's police power and authority under the Statute, the Enabling Ordinance and the Procedures Resolution. 6. That Amendment No. 1 to the Development Agreement is entered into pursuant to and in compliance with its charter powers and the requirements of Section 65867 of the Statute, the Enabling Ordinance and the Procedures Resolution. -2- NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: SECTION 1. That Amendment No. 1 to Development Agreement No. 2005-00001 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 2005-00001 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 8th day of pecember , 2009, and thereafter passed and adopted at a regular meeting of said City Council held on the 15th day of December , 2009, by the following roll call vote: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kring NOES: NONE ABSENT: NONE ABSTAIN. NONE CITY OFAHEIM By: A - MAYOR OF THE TY NANAHEIM ATTEST: �C, f 1,AW — CITY CL RK OF THE CITY OF ZAHEIM 74903.v1/MGordon -3- (SPACE ABOVE THE LINE IS FOR RECORDER'S USE) AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00001 By and Between THE CITY OF ANAHEIM and BRE PROPERTIES, INC. AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00001 This AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2005-00001 (this "Amendment No. 1"), dated for purposes of identification only as of September 30, 2009 (the "Date of Amendment"), is made the City of Anaheim, a charter city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California and by BRE Properties, Inc., a Maryland Corporation ("OWNER"). 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. 2005-00001 and recorded in the Official Records of Orange County California on June 15, 2005 as Instrument No. 2005000462123 (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 320 unit apartment 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 5.0 of the Procedures and Requirements for Consideration of Development Agreements adopted by the City Council, by its Resolution No. 82R-565, and Section 18 of the Development Agreement, Owner, submitted a request to modify Section 9.5 of the Development Agreements relating to the required relocation of an adjacent vehicular driveway. E. On September 30, 2009, the Anaheim City Planning Commission recommended approval to City Council of Owner's request for an amendment to the Development Agreement to modify Section 9.5 of the Development Agreement based on the efforts made by the applicant to meet the obligations of the development agreement, and in recognition that the interim intersection improvements are adequate to meet the needs of vehicular and pedestrian circulation, and that the proposed modifications provide for the reimbursement of costs incurred by the City for the future relocation of the driveway. F. On , 2009, the Anaheim City Council adopted an ordinance approving an amendment to the Development Agreement to modify Section 9.5 of the Development Agreement pertaining to the relocation of the Bank of America driveway. 2 G. The City and Owner intend, by this Amendment No. 1 to Development Agreement, to modify Section 9.5 of the Development Agreement to memorialize the interim circulation plan and provide a mechanism for the reimbursement of costs incurred by the City for the future relocation of the Bank of America Driveway. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: SECTION 1. That Section 9.5 of the Development Agreement be, and the same is hereby, amended to read as follows: 9.5 Bank of America Driveway. OWNER used its best efforts to acquire the right to relocate the existing Bank of America driveway east of the proposed easterly connector street to a location on said connector street, or, as a second alternative, to relocate the existing driveway to a mid -point along the existing Bank of America Katella Avenue frontage, subject to approval by the City Engineer. OWNER has been unable to acquire the right to relocate this driveway from Bank of America, OWNER has requested that the CITY initiate eminent domain proceedings, as set forth in the introductory language to this Section 9, recognizing that the City Council retains its authority whether to initiate eminent domain proceedings. In order for OWNER to obtain final CITY approval of the Parcel 1 Project, on December 2, 2008, the City Engineer approved an alternative to the driveway relocation, depicted in Katella Street Improvement Plan No. 26228, which allows only a right turn from Campton to westbound Katella Avenue. CITY agrees that it may not withhold final approval of the Parcel 1 project based on BRE's failure to acquire the right to relocate the driveway. OWNER shall pay all costs related to relocation of the driveway, including CITY staff costs, design, right of way acquisition costs (including any severance and good will paid to Bank of America for such relocation), and construction costs. OWNER shall pay such costs to CITY within thirty (30) days of when CITY notifies OWNER in writing that the driveway relocation work is completed. Upon completion of the driveway improvements, if Community Facilities District No. 08-1 (the "CFD") is funded, and there are sufficient CFD proceeds to partially or fully fund OWNER'S payment to CITY, and to the extent permitted by law, OWNER, in its sole discretion, may choose to reimburse CITY for all or part of the driveway relocation costs through CITY's deduction from the amount of proceeds OWNER is to receive from the funding of the CFD pursuant to the Acquisition and Funding Agreement between the CFD, CITY and OWNER. If OWNER elects to receive such proceeds prior to completion of the driveway, OWNER will provide alternative security in the form of a certificate of deposit or other form of security satisfactory to the City Engineer to ensure payment of the approximate amounts anticipated for acquisition and construction of the driveway. CITY will retain outside counsel for acquisition of the driveway on the same terms, conditions and hourly rate as are provided in the CITY's agreement with outside counsel for eminent domain actions. Without waiving applicable privileges, CITY will provide quarterly statements to OWNER relating to outside counsel costs for acquisition of the driveway, redacted as necessary to preserve applicable privileges, and will make outside counsel available to OWNER for periodic status review. 3 SECTION 2. 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 3. EFFECTIVE DATE. This Amendment No. 1 to Development Agreement No. 2005-00001 shall take effect immediately upon recordation in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, CITY and OWNER have executed this Amendment No. 1 to Development Agreement No. 2005-00001 as of the date and year first above written. DATE: ATTEST: CITY OF ANAHEIM, a municipal corporation an CITY CLERK OF THE CITY OF ANAHEIM DATE: APPROVED AS TO FORM: MAYOR OF THE CITY OF ANAHEIM BRE PROPERTIES, INC., a Maryland Corporation By: Printed Name: Title: CRISTINA L. TALLEY, CITY ATTORNEY Mark S. Gordon Assistant City Attorney 4 ATTACHMENT NO. I [LEGAL DESCRIPTION] Th t lanO rcfi-rvI to : crein v4 :61un!rd in the Slate 0"uaiifarnia, Co=ts of Orange. Ci -y of' A_N1t11ji_E1T14' and L; described as iollows: PARCEL A- LOT20FTRACT N10, 16831, AS PER MAP UCOIU)EL) LN ROOK 581, PAGES 9 THRO UGI -T 12 MI.USWE OFINUSCEI.LANMOTTS MAPS, rN 11=CORDEII­ EXCEPT' THE. T=F, ANT) EXCIAISWL PdCil-rl'-I'O -A.L.'JF" THE TvIINEMALS AND M MRAL DRES OF F1TRY KIND ANT)C14ARA =, I NOW KNOWN TO EXIST ORFffikEAFTIER MCOVEM--1) UPON. Wri'11WOR UNDER1.17NG SATT) I. AND OR T, IIAT MAY M PRODUCED T-HERF, FROM, INCLUDING, NVI`1110111r LIWMG THE GENERAL M'CIF' -ME FOREGOING;, ALL PETROLEUK OIL, NATURAL GAS ANT) O=k HYDROCA&D ON S UBSTANCE-1,; AND PRODUCTS DEMIED THEREFROM, M. G7--:TTTFP, V��, n! TIfrE EXCLUSIVE AND PERPETUAL RTtri T OF SAID GRANMOR.S, THEIR SUCCESSORS ANTS ASST NS, OF IINGRESS2VITI) EGRESS BENEATH THE SVRFACF OF' SAID LAND TO EXPI-01E FOP, MRACT, MEN -E. AND REMOVE TI [E SAME, AND TO T,-1AKE SUCH USE OF 471F SAID I,AWI) HETNUal I THE SURFACE AS IS ",(TECEL 'EMU. 'HERE nq Will N WC T I SSARY OR USFFULIEZ CONN N 1 W 1, CII USE tAY IA IDE LATE!'_�kl_ OR SLANT DRIMILLNG, BORIN(j, DICYCr.N(i OR SrN m -W-1 OF VfF.'-Ls, SILL�FTS Or, TUNNELS: PROVIDED. HOW MkTSAID GTRANTORS, 7WEIR S -s JCCESSORS -AND AS,W-NS, SHAM, NOT USE n1E SURFAC.-E OF SAM LANI) IN THE EXERCISE OF ANY OF S11D rJ(_jF.TS. A'1'Z) SHALL NOT T)1STTJRB ITIF SURI;ACE OF SAIL) LAND OR ANY IMPR(1VENIEN-I'S, 11111.R1" ONl AS RESER1,T-D BY PA M,- C EIT-M TRIC RAMWAY COiweANTY ', A CORPORATION, AND NORTIMTSTERN PACIFIC WT-IROAD CONTA NY, A 10' RPORA110N, IN DEED I1diC01(DE1)N1")VFM11ER 2 1,, 960IN B()( -)K 55:7, PAC,-:,; 2 It OF OFFICIlkl, RECORDS, PARCM L T�. A, 1~T-.C_IPR0CA 1, -AS FOR PIUVATF SE VVER A S SET F-ORT71 11k 'ITIATCEAU .ALN "AGREF_r.1:;NTFOR PRIVATE Siz'WE]t REASEMEN1 RECORDED MAY 23,21,C)6 G; A_ ND Ii W N THrS 0 ERNq ET(TFICON, _ T'%MTBrL1 I' A" PARCEL C P F R P 7 7 TjA7L u N 0 N -E. XCI1 J S T V E F-11. S E 1'vl E N1 S FOR A C CESS M RE S S Aj'4'D El,; R ES S Fl: R VE771 I C'T;L:AY ANT) T'v7T)T;STT,'. I AIN' FINT.RY AS CREl-,TED IN 'niAT CE 11TAIN' "RT'.-1TpR,r_'AI_ EASEMENT'S A-NT)NI A IN7ENANCE, A Ox IT, E'NITNI-r' RFCORDET) JUNE, 6. 2%J1.N (As' DS,':MUIAENT 5 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a citizen of the United States and a resident of 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 principal clerk of the Anaheim Bulletin, 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 December 28, 1951, Case No. A-21021 in and for the City of Anaheim, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: December 24, 2009 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: December 24, 2009 Signature Anaheim Bulletin 625 N. Grand Ave. Santa Ana, CA 92701 (714) 796-2209 PROOF OF PUBLICATION Proof of Publication of 6NMIMARY PUBLICATION CRY OF ANAHEIM ORDINANCE NO. 6M MWWi. FUR ANSI vn fenA&r yr Ins vu T. -. This ordinance approves an amendment to Development Agreement No. 2005.00001 (des- ignated as "Amendment No. 1, to Development Agreement No. 2005 and be- tween the City of Anaheim end BRE Propertres, Inc., to provide for a eve opmant of a 320 unit apartment project, as more particularty set forth m the Fihal Site Plan, which is at- tached to the Development Agreement as Exhibit 'B" and incorporated tfierein. This amendment muddies Section 9.5 of the DovelopmeM Agreement to menlonallze the inter im-circulation plan and provide a mechanism for tha reimbursement of oosts'Incurred by tha City for the future relocation of the ink of America Driveway required by the Develop- ment Agreement. I, Linda N. Andal, City Clerk of the City of Anaheim, do hereby certify that the foregoing is a summary of Ordinance No. 6162 which ordinance -was introduced at a regular meeting of the City Council of the City of Anaheim on the 8th day of December, 2009 and was duly passed and adopted at a regular meeting of said Council on the 15th day of t)ecember, 2009 by the following roll call vote of the members thereof: AYES: Mayor Pringle, Council Members Hernandez, Sidhu� Galloway, Kring NOES: NONE ABSENT: NONE ABSTAIN: NONE The above summary is a brief description of the subject matter contained in the text of Or- dinance No. 6162, which has been prepared pursuant to Section 512 of the Charter of the City of Anaheim. This summary -does not include or describe every provision of the ordi- nanoe and should not be relied on as a substitute for the full text of the ordinance. To obtain a copy of the full tent of the ordinance, please contact the Office of the City Clerk, (714) 7655166, between 8:00 AM and 5:00 PM, Monday through Friday. There is no charge for the copy. Anaheim Bulletin December 24 2009 918585