6164ORDINANCE NO. 6164
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM (i) APPROVING AMENDMENT NO. 2 TO
DEVELOPMENT AGREEMENT NO. 2005-00003 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. 2005-00003 and recorded in the Official
Records of Orange County California on June 15, 2005 as Instrument No. 2005000462125 (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 255 residential dwelling units, 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, on July 28, 2009, the Anaheim City Council (hereinafter referred to as
"City Council") adopted Ordinance No. 6152 approving Amendment No. 1 to Development
Agreement No. 2005-00003 ('`Amendment No. 1 to Development Agreement"); 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. 2 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
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WHEREAS, the Planning Commission, by its Resolution No. PC2009-088, did
recommend that the City Council approve Amendment No. 2 to Development Agreement to modify
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. 2 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. 2 to Development Agreement attached hereto and incorporated herein by this
reference; and
WHEREAS, the City Council did hold a public hearing on Amendment No. 2 to the
Development Agreement, notice of said public hearing having been duly given as required by law;
and
WHEREAS, the 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 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. 2 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. 2 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. 2 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. 2 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. 2 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.
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6. That Amendment No. 2 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. 2 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. 2 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 8th day of Decembe, , 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 OF AHEIM
By: 111494"0
MAYOR OF THE CI OV ANAHEIM
ATTEST:
CITY CLERK OF THE CITY OFA AHEIM
74925.v1 /MGordon
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RECORDING AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
(SPACE ABOVE THE LINE IS FOR RECORDER'S USE)
AMENDMENT NO.2 TO
DEVELOPMENT AGREEMENT NO. 2005-00003
By and Between
THE CITY OF ANAHEIM
and
BRE PROPERTIES, INC.
AMENDMENT NO.2 TO
DEVELOPMENT AGREEMENT NO. 2005-00003
This AMENDMENT NO. 2 TO DEVELOPMENT AGREEMENT NO. 2005-00003 (this
"Amendment No. 2"), 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. 2005-00003 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 multiple -family
residential project consisting of 255 residential dwelling units, 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. (hereinafter
referred to as "Owner"), making BRE Properties, Inc. the sole Owner of the Project.
D. On July 28, 2009, the Anaheim City Council adopted Ordinance No. 6152
approving Amendment No. 1 to Development Agreement No. 2005-00003 ("Amendment No.
1"
E. 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.
F. 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.
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G. 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.
H. The City and Owner intend, by this Amendment No. 2 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
3
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.
SECTION 2. INTEGRATION.
Except as expressly provided to the contrary herein, all provisions of the Development
Agreement, as previously amended, shall remain in full force and effect. The Development
Agreement, as previously amended, and this Amendment No. 2 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.
4
SECTION 3. EFFECTIVE DATE.
This Amendment No. 2 to Development Agreement No. 2005-00003 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. 2 to
Development Agreement No. 2005-00003 as of the date and year first above written.
DATE:
ATTEST:
CITY OF ANAHEIM,
a municipal corporation
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
IM
Mark S. Gordon
Assistant City Attorney
:1
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EASE4TENTS AND NIAR4TENANCE AGRF-EMPNI" JUNE 6, 201.11 AS
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
Anaheim Bulletin
625 N. Grand Ave.
Santa Ana, CA 92701
(714)796-2209
PROOF OF PUBLICATION
6UMMMY PUBLICATION
RMW OF ANAHEIM
O"MCM No. 6164
AM ORDINANCE OF THE OnY COUNCIL OF THE orry OF ANANMIM )
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ENATHin. AMEND•
This ordinance approves an amendment to Development Agreement No. 2005.00003 (des-
ignated as 'Amendment No. 2 to Development p��� ent No. 2005.00003") by and be -
the City of Anaheim and BRE Properties, Ind.; to provide for the development of a
multiple family residential project consisting of 255 residential dwelling units, as more par-
ticularly set forth in the Final rte Plan, which is attached to the Development Agreement as
Exh% 'B' and incorporated therein. This amendment modifies Sect rn 9.5 of the Agreement
as
opment Agreemenel-
t 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 required by the Development Agreement
I, Linda N. Andal, City Clerk of the City of Anaheim, do hereby certify that the foregoing is a
summary of Ordinance No. 6164 which ordinance was introduced at a regutar meeting of
the City Council of the City of Anaheim on the 8th day of December, 2009 and was ul
Passed and adopted at a regular meeting of said Council on the 15th day of December,
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-
dinanos No. 6164, 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:
nance and should not be relied on as a substitute for the full text of the ordinance.
To obtain acop of the full text of the ordinance, please contact the Office of the City
Clerk, (714) 7166, between 8:00 AM -and 5:00 PM, Monday through Friday. There is no
charge for the copy..
Anaheim Bulletin Decembw24, 2009 9185932