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Bella Terra Villas, LLC - 2011-11-21 (6)
VIA: Fred Wilson, City Manager FROM: Scott Hess, AICP, Director of Planning and Building DATE: January 6, 2012 SUBJECT: BELLA TERRA DEVELOPMENT AGREEMENT NO.2008-001 WITHDRAWAL OF APPLICATION Development Agreement No. 2008-001 has been continued twice at the applicant's request from the November 21, 2011 City Council meeting to the December 19, 2011 meeting and from December 19, 2011 to the January 17, 2012 meeting. In each case the item was continued without opening the public hearing. On January 5, 2012, staff received the attached request from Bella Terra Villas, LLC, property owner, to withdraw the development agreement application. No further action is necessary. Attachment SH:HF:jj:kdc xc: Bob Hall, Deputy City Manager Mary Beth Broeren, Planning Manager Jane James, Senior Planner Kimberly DeCoite, Administrative Assistant /- /7-oto/�, (T�"nJ G✓ i TTN� /t/ lc�YOIP-7 (�?OsU G:\admnitr\2012\010612 jj 1(Bella Terra DA Withdrawal) HB -241- Item 14. - 1 Bella Terra Villas LLC 1745 Shea Center Drive, Suite 200 Highlands Ranch, CO 80129 Phone: (720) 283-6120 Fax: (720) 283-2454 November21, 2011�=�` Jane James J: 11) 9 20 1Z City of Huntington Beach ,yPt. oxiale Y 2000 Main Street ck ^4 4 Huntington Beach, CA 92648 RE: Withdrawal of Application —Development Agreement (Village at Bella Terra Project) by and between Bella Terra Villas LLC and the City of Huntington Beach Dear Ms. James, Please accept this letter as formal written withdrawal of the application for a Development Agreement by and between Bella Terra Villas LLC and the City of Huntington Beach. Applicant's contact information is provided below: Bella Terra Villas LLC Attn: William D. Licko 1745 Shea Center Drive, Suite 200 Highlands Ranch, CO 80129 Phone: (720) 283-6120 Fax: (720) 283-2454 Please feel free to contact me with any questions. Sincerely, Bella Terra Villas LLC, a Delaware limited liability company By: DCO Realty, Inc., a Delaware corporation, its Sole Member William. D. Licko Secretary & Treasurer ©� CITY OF HUNTINGT N BEACH Inter- Department Communication Planning and Building Department TO: Honorable Mayor and gitycouncit Members VIA: Fred Wilson, City >; Scott Hess, AICP, Actor of Plnnng and BudiFROV:iln17l DATE: December 6, 2011 SUBJECT: BEI. LA TERRA DEVELOPMENT AGREEMENT NO.2008-001 Staff received the attached request from the applicant for continuance of Development Agreement No. 2008-001(The Village at Bella Terra) from the December 19, 2011 City Council meeting to the January 17, 2012 City Council meeting. This item was originally continued from the November 21, 2011 City Council meeting without opening the public hearing. Attachment SH:HF#kdc xc: Bob Hall, Deputy City Manager Mary Beth Broeren, Planning Manager Jane James, Senior Planner Kimberly DeCoite, Administrative Assistant G:ladmnitr12011\120611 J4(Bella Terra DA Continuance) HB -663- Item 25. - 1 James, Jane From: Becky Sullivan [bsullivan@djmcapital.com] Sent: Tuesday, December 06, 2011 1:27 PM To: James, Jane Cc: TFileti@mofo.com; Oderman; Jeff; Susan Cola; Lindsay Parton; Hess, Scott; Vigliotta, Mike; makin@udr.com; Eric Sahn Subject: Development Agreement Hearing Continuance Jane, On behalf of BTDJM Phase 11 Associates, LLC we would like to request a continuance for the Development Agreement City Council Hearing till the Tuesday, January 110 City Council Hearing. Regards, Becky Sul ivai7 (805) 962-4300 -Phone bsullivan&j mcapital. com Item 25. - 2 HB -664- Council/Agency Meeting Held: Deferred/Continued to: ❑ Approved ❑ Conditionally Approved ❑ Denied gma&4Ci ler Signa e Council Meeting Date: November 21, 2011 Department ID Number: PL 11-015 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Scott Hess, AICP, Director of Planning and Building SUBJECT: Approve for introduction Ordinance No. 3929 approving a development agreement between the City of Huntington Beach and Bella Terra Villas, LLC for a ten year term for The Village at Bella Terra mixed use project Statement of Issue: Transmitted for your consideration is a request to enter into a Development Agreement between the City of Huntington Beach and Bella Terra Villas, LLC, for The Village at Bella Terra mixed use project that will afford certain benefits to the property owner for a ten year term. The Village at Bella Terra mixed use project is an approved 467 unit multi -family residential development with 30,000 square feet of ground floor retail and restaurant uses. The Planning Commission reviewed Development Agreement No. 2008-001 on October 25, 2011 and forwarded the request with no recommendation. Staff recommends approval of the request because it complies with the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and ensures the mutually beneficial development of the approved project. Financial Impact: Not Applicable Recommended Action: STAFF RECOMMENDATION: Motion to: Approve Development Agreement No. 2008-001 with findings for approval (Attachment No. 1); and, approve for introduction Ordinance No. 3929 (Attachment No. 2), "An Ordinance of the City of Huntington Beach Adopting a Development Agreement by and between the City of Huntington Beach and Bella Terra Villas, LLC (Property Owner) (Development Agreement No. 08-001)." Planninq Commission Action on October 25, 2011: The motion made by Peterson, seconded by Ryan, to approve Development Agreement No. 2008-001 and delete the references to Center Avenue improvements with findings for approval and forward the Draft Ordinance to the City Council for adoption failed by the following vote: HB -4 t s- Item 15. - 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT: ID NUMBER: PL 11-015 AYES: MANTINI, PETERSON, RYAN NOES: SHIER BURNETT, FARLEY, BIXBY ABSENT: NONE ABSTAIN: DELGLEIZE MOTION FAILED The motion made by Farley, seconded by Shier Burnett, to approve Development Agreement No. 2008-001 as recommended by staff including the references to Center Avenue improvements with findings for approval and forward the Draft Ordinance to the City Council for adoption failed by the following vote: AYES: SHIER BURNETT, FARLEY NOES: MANTINI, PETERSON, RYAN, BIXBY ABSENT: NONE ABSTAIN: DELGLEIZE MOTION FAILED The motion made by Ryan, seconded by Peterson, to forward the Draft Ordinance for Development Agreement No. 2008-001 to the City Council without a Planning Commission recommendation carried by the following vote: AYES: SHIER-BURNETT, BIXBY, MANTINI, PETERSON, RYAN NOES: FARLEY ABSENT: NONE ABSTAIN: DELGLEIZE MOTION PASSED Alternative Action(s): The City Council may make the following alternative motions: 1. "Continue Development Agreement No. 2008-001 and direct staff accordingly." 2. "Deny Development Agreement No. 2008-001 with findings for denial." Analysis: A. PROJECT PROPOSAL: Applicant/ Property Owner: Bella Terra Villas, LLC, c/o UDR, Inc., Bill Licko, 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO 80129 Item 15. - 2 HB -416- REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 Location: 7601 Edinger Avenue, Huntington Beach, CA 92647 (north side of Edinger Avenue, east of Union Pacific Rail Road and west of existing Bella Terra development) Development Agreement No. 08-001 represents a request to enter into a Development Agreement between the City of Huntington Beach and Bella Terra Villas, LLC pursuant to Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and California Government Code Section 65864 et.seq. The proposed Development Agreement will provide assurances to the property owner/developer that The Village at Bella Terra mixed use project approved for the 10.40-acre site can proceed in accord with applicable approvals, thus vesting certain development rights in the property. The proposed Development Agreement will afford certain benefits and protections to the property owner/developer that would otherwise not be applicable to the project. In summary, the property owner/developer requests several considerations in the development agreement as follows: ® Ten year term (DA Section 2.3); ® Lock in current General Plan and Zoning development regulations for life of term (DA Section 3.1); • City to provide cooperation with processing amendments to the DA, the approved development plan, any future development plans, and process Lot Line Adjustment requests on an "administrative approval' basis only (DA Section 3.1.3); . • Extend the life of Tentative Tract Map No. 17261 for ten years and agree to process multiple final maps (DA Section 3.1.3); ® Right to construct approved project and development shall not be subject to future new fees that may be adopted during the term of the agreement although existing fees applicable to the project may be modified (DA Section 3.2.1); o Delay payment of For Sale Project Park and Recreation fees until units are actually sold at a future unknown date; in the meantime, developer will pay Rental Project Park and Recreation fees (DA Sections 5.1, 5.1.1, and 5.1.2); • Defines the applicable conversion regulations should the residential units be rented prior to creation of a common interest development pursuant to California Civil Government Code Section 1352 (DA Section 5.1.4). B. BACKGROUND AND HISTORY On August 24, 2010, the Planning Commission approved General Plan Amendment (GPA) No. 10-001, Zoning Text Amendment (ZTA) No. 10-001, and Site Plan Review (SPR) No. 10- 001 for The Village at Bella Terra Costco Wholesale, facilitating the development of a regional commercial big -box retail with gasoline service station and mixed -use retail and residential project. In general, this project amended the planning areas within Specific Plan (SP) No. 13, established warehouse sales outlets and gasoline service stations as permitted uses and approved development of a 154,113 square foot Costco Wholesale store with a 16- pump gas station and a mixed -use development consisting of 467 residential units and 30,000 square feet of general retail and restaurant uses. The approximately 24 acre master plan site is located between Edinger Avenue and Center Avenue, just west of the existing HB -417- Item 15. - 3 REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 Bella Terra mall, and just east of the Union Pacific rail road line. This Development Agreement covers only the mixed use residential and retail development on the southern portion of the site and does not include the Costco warehouse or the Costco fuel facility. The Planning Commission's action on SPR No. 10-001 was final and no appeals were filed. On September 20, 2010, the City Council approved GPA No. 10-001 and ZTA No. 10-001, concluding the legislative actions required for the proposed project. Subsequently, on February 23, 2011, the Planning Commission approved Tentative Tract Map No. 17261 for condominium purposes for The Village mixed use portion of the site. On April 8, 2011, the Director approved Entitlement Plan Amendment No. 2011-002 to amend the size and shape of the residential parking structure to reduce the walking distance to each unit, amend the interior courtyard spaces and recreational amenities, reorient the westerly units to face north and south, and add one additional level of residential above the retail. The project details remain the same at 467 residential units and 30,000 square feet of retail/restaurant uses. The Village at Bella Terra is subject to provide 15% of the total 467 units (71 units) as affordable housing units pursuant to the conditions of approval and the existing Affordable Housing Agreement. This development agreement differs from the recently approved agreement between the City, Freeway Industrial Park, and Sares-Regis, which was required by the conditions of approval and Beach and Edinger Corridors Specific Plan (BECSP) for The Boardwalk project. The BECSP requires a development agreement to be approved by Council and recorded to provide for affordable rental dwelling units in accordance with Section 2.2.3 of the BECSP and the HBZSO. Specific Plan No. 13 does not require the development agreement; rather the applicant initiated the development agreement at their own request. C. PLANNING COMMISSION MEETING: The Planning Commission held a public hearing to consider Development Agreement No. 2008-001 at their regular meeting on October 25, 2011. Commissioner Delgleize recused herself and left the room. Staff gave an overview of the development agreement and the applicant provided verbal testimony in support of the draft development agreement with one exception. The applicant stated their opinion that staff's recommendation for Center Avenue street improvements should not be included within the agreement. No other members of the public spoke during the public hearing. The Commission had several questions relating to the City's recommendation for off -site improvements on Center Avenue, condominium conversion standards, and the Redevelopment Agency's participation in the project. The Planning Commission's first motion to support the development agreement but excluding the Center Avenue street improvements failed by a 3-3 vote. The Commission's second motion to approve the development agreement as recommended by staff, including the off - site street improvements failed by a 2-4 vote. Finally, the Planning Commission's last motion to forward the development agreement to the City Council without a recommendation passed by a 5-1 vote. D. STAFF ANALYSIS AND RECOMMENDATION: The objective of a development agreement is to provide assurances that an applicant may proceed with a project in accordance with existing policies and standards in place at the time Item 15. - 4 HB -418- REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 of project approval. In other words, the land use regulations remain fixed for the life of the development plan on the subject property. The City and property owner/developer desire to enter into a development agreement for the subject site for a term of ten years in order to achieve the mutually beneficial development of the property and ensure that the project is developed in accordance with the approved SPR No. 10-001 and EPA No. 2011-002. The Planning Commission determines whether the agreement is consistent with the General Plan and on the basis of their findings, recommends either approval, modification, or disapproval of the proposed development agreement to the City Council. In this case, the Planning Commission overall supported the proposed development agreement but could not agree on a recommendation regarding street improvements on Center Avenue and therefore, elected to forward the document without a specific recommendation. Pursuant to Section 246.12 C. of the HBZSO, the City Council may approve the requested development agreement after making the following findings: - the agreement is consistent with the General Plan and any Specific Plan; - the agreement is consistent with the HBZSO, the Municipal Code, and the State Subdivision Map Act; - the agreement will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of property; and finally, - the City Council has considered the fiscal effect of the development agreement on the City and the effects on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. This analysis includes a discussion of all these specific issues for the City Council to consider. Consistency with General Plan and Zoning Specific Plan No. 13 (SP 13) adopted in July 2000 and modified most recently in September 2010 is intended to guide future development, establish regional commercial uses, and allow mixed use residential and retail components within an overall Italian Village lifestyle center. The Planning Commission determined that approval of The Village at Bella Terra - Costco Warehouse and Fuel Facility project was consistent with the goals and requirements of the General Plan and SP 13. Subsequently, the site layout and mixed use residential and retail component was revised and approved by the Director through Entitlement Plan Amendment No. 2011-006 in April 2011. The revised plans were also deemed in compliance with the General Plan and Specific Plan No. 13. The development agreement would be effective for ten years and vests the developer's right to construct the project pursuant to the terms of the agreement. Development Agreement No. 08-001 refers to the project's "Development Plan," which complies with the SP 13 development code, as approved by the Planning Commission in August 2010 and the revised plan approved by the Director in April 2011. In addition, the development agreement is consistent with the General Plan land use designation for the site insofar as the approved project is consistent with the General Plan land use designation. Through implementation of the "Development Plan," the development agreement would conform to applicable goals and policies of the General Plan. HB -4 t 9- Item 15. - 5 REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 Special Considerations The applicant filed the development agreement application so that they could be afforded certain benefits and protections that are summarized under the Project Proposal section of this report, including locking in land use regulations for a ten year term and allowing deferred payment of For Sale Park and Recreation fees. General Plan Implementation Program I-LU-7 Development Agreements states, "Where appropriate, the city may use Development Agreements as binding implementation tools. Development Agreements are authorized by State law to enable a city to enter into a binding contract with a developer that assures the city as to the type, character, and quality of development and additional 'benefits' that may be contributed and assures the developer that the necessary development permits will be issued regardless of changes in regulations." In consideration of the proposed Development Agreement and the advantages/benefits it provides to the developer, staff recommends the developer provide "additional benefits" to the City that exceed what would normally be required or conditioned on the project pursuant to City's codes, ordinances, and policies, General Plan, State Law, Redevelopment Law, and CEQA (i.e., subdivision exactions, impact fees, conditions of approval, and mitigation measures). Therefore, in order to comply with General Plan Implementation Program I-LU-7, staff recommends the following: • As a benefit to the City, Developer shall construct off -site public improvements consisting of repair of curb, gutter and sidewalk, and repaving the full width of Center Avenue between the 405 Freeway off -ramp and the signalized private access driveway into Bella Terra/Bella Terra Towers as well as the north side of Center Avenue between the private access drive and the railroad tracks on the westerly boundary of the site (DA Section 4.1.1); • As previously stipulated in the 2010 Affordable Housing Agreement between Bella Terra Villas, LLC and the Redevelopment Agency, Developer shall contribute $250,000 toward construction of a pedestrian path between Bella Terra and the Boardwalk development. The additional language in the DA further specifies that the funds may be used toward planning, design, permit fees and construction. of the off -site bridge (DA Section 4.1.2). Staff supports all the terms, provisions, and advantages/benefits of the development agreement requested by the property owner/developer identified above along with the benefits to the City as recommended by staff. Cost/Benefit of Proposed Development Agreement The Planning Commission requested further information on the costs and benefits of the proposed development agreement. One of the costs identified is the repair and replacement of the north side of Center Avenue along the Costco frontage and the repair and replacement of both sides of Center Avenue between the Costco frontage and the 1-405 off -ramps. The street improvements on the south side of Center Avenue along the Costco frontage are Costco's responsibility, pursuant to their project conditions of approval. Item 15. - 6 HB -420- REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 The applicant estimates the cost of the recommended street improvement work at $500,000 and Public Works Department concurs with this cost estimate. It should be made clear that the street improvements are recommended by staff to comply with General Plan implementation policies regarding development agreements and are not required to meet a nexus test. The street improvements go above and beyond the typical obligations of the project and are recommended as part of the negotiations related to the applicant's request to lock in land uses, entitlement approvals, and delay payment of For -Sale Park and Recreation fees. Since the street improvements were not part of the approved entitlements they would be considered a benefit to the City and a cost to developer and have been identified as such in the proposed development agreement. On October 3, 2011 the applicant/property owner responded to the Planning Commission's request and submitted a letter citing their opposition to the Center Avenue improvements recommended by the City (Attachment No. 6). Additional benefits to the developer are having an approved project and approved subdivision for ten years with assurances provided by the development agreement that future zoning and land use laws and fees will not be imposed even if the project has not been constructed. The Subdivision Map Act only allows for this additional extension of the recordation of the Tract Map through development agreements. The HBZSO requires payment of in -lieu For -Sale Park and Recreation Fees at recordation of a final map. Staff agrees to the developer's request to delay For -Sale Project Park and Recreation fees until the units are actually sold and to accept payment of the Rental Project Park and Recreation fees in the meantime because ultimately the fees will be collected. The applicant/property owner will realize a financial benefit by delaying the payment of condominium park and recreation fees and instead paying rental fees until the units are sold. The Rental Park and Recreation fees are calculated on a fee per square foot method. Based on the proposed mixed use project the Rental Park and Recreation fees are estimated at approximately $600,856. The For -Sale Park and Recreation fees are based upon current property values. In the absence of a property value appraisal, the City's real estate management staff has provided a land value estimate and staff calculated the estimated For - Sale Park and Recreation fees between $10 million on the low end and $14 million on the high end. The Development Agreement states that the property owner/developer will be obligated to pay the difference between the Rental Park and Recreation fee paid and the For -Sale Park and Recreation fee in effect at the time the units become available for sale. Finally, a cost to the developer and benefit to the City is the $250,000 contribution towards a pedestrian path between Bella Terra and the Boardwalk development. However, it should be noted that this obligation is already required by the Affordable Housing Agreement. The developer is obligated to contribute these funds even without this proposed development agreement. The additional language in the development agreement is requested by staff to describe that the funds may be used toward planning, design, and permit fees in addition to utilizing the funds towards construction of the bridge. Other Consistency Findings As noted above, the City Council must find that the development agreement is consistent with the General Plan, HBZSO, Municipal Code, and Subdivision Map Act. The HBZSO and Municipal Code require payment of in -lieu For -Sale Park and Recreation Fees at recordation of a final map. In this case, the developer wishes to record a final map for condominium H B -42 t - Item 15. - 7 REQUEST FOR COUNCIL ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-015 purposes prior to building permits but record the airspace plan and create a common interest development at a later unknown date. The fact that the developer has an approved tentative tract map and will record a final map complies with the HBZSO and Subdivision Map Act. Staff agrees to the developer's request to delay For -Sale Project Park and Recreation fees until the units are actually sold because ultimately the total fees will be collected. As noted in the introductory paragraph at the beginning of the Analysis section, the City Council must balance the fiscal effect of the development agreement and the region's housing needs and balance these needs against the public service needs of its residents and available fiscal and environmental resources. The development agreement is requested for a ten year term. Therefore, the City must consider that the project site will not be subject to any updates in General Plan or Zoning designations for the life of the agreement. Also, the Council must consider the fiscal impacts of deferring payment of the For -Sale Park and Recreation fees along with the public service needs of the community. Staff supports the development agreement because the project will add 467 multi -family residential units, consistent with the goals of the Housing Element and park and recreation fees will be paid based on the type of units proposed. Therefore, the development agreement will not impact the fiscal needs of the City in terms of the requested delayed payment. Additionally, if the units are rented prior to their sale then each tenant will receive notification and first right of refusal to purchase the unit. The project has also been fully vetted through an environmental impact report (EIR) process and the development agreement will not have an impact on the City's environmental resources. Finally, the City Council must balance the development agreement against the public service needs of its residents. As identified elsewhere in this report, Center Avenue, near the vicinity of the proposed development project, is in need of repair and repaving. By allowing deferred payment of condo park and recreation fees, requiring tenant notification of the potential for the units to be sold at a later date, and including the provision to complete the Center Avenue refurbishment project, the City Council can effectively balance out the housing and public service needs of the Huntington Beach community with the fiscal effects of the development agreement. All of the other project benefits listed as extraordinary in the applicant's October 3, 2011 letter will occur without the proposed development agreement. While the mixed use project and the adjacent Costco warehouse are highly desirable and supported by staff, decision makers, and the Huntington Beach community, the project in and of itself does not offer extraordinary benefits that would only occur with approval of the development agreement. The developer, however, benefits by allowing delayed payment of park and recreational fees and locking in land use regulations and entitlement approvals on the site. E. SUMMARY: The terms of the agreement, including the items discussed above, will not be detrimental to the health, safety, and well-being of the surrounding community and do not take away from the high quality nature of the project. Overall, staff supports the proposed terms of the development agreement and agrees with the protections and benefits afforded to the developer. Staff recommends the City Council approve the proposed Development Agreement No. 2008-001 along with the requirement to repair and repave Center Avenue because it would: Item 15. - 8 HB -422- REQUEST FOR COUNCIL. ACTION MEETING DATE: 11/21/2011 DEPARTMENT ID NUMBER: PL 11-016 • Conform to applicable goals and policies of the General Plan and the provisions of Specific Plan No. 13; • Conform to the provisions of Chapter 246 — Development Agreements of the Huntington Beach Zoning and Subdivision Ordinance; • Ensure consistency of The Village at Bella Terra mixed use project with the approved Conditions of Approval and Mitigation Measures adopted pursuant to Site Plan Review No. 10-001, Entitlement Plan Amendment No. 11-002, Environmental Impact Report No. 07-003 as approved by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-003 as considered by the Planning Commission on August 24, 2010; and • Ensures the mutually beneficial development of the approved project and serves the needs of the surrounding community by providing for street improvements on Center Avenue. Environmental Status: The development agreement was included in the scope of The Village at Bella Terra Environmental Impact Report (EIR No. 07-03) certified by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-03 considered by the Planning Commission on August 24, 2010. Strategic Plan Goal: Enhance Economic Development Attachment(s): .- 1. Findings for Approval — Development Agreement No. 11-001 2. Ordinance No. 3929, "An Ordinance of the City of Huntington Beach Adopting a Development Agreement by and between the City of Huntington Beach and Bella Terra Villas, LLC(Property Owner (Development Agreement No. 08-001)" 3. Planning Commission Staff Report dated October 25, 2011 4. Site Plan Review No. 10-004 — Notice of Action dated August 25, 2010 with Findings, Conditions of Approval, and Mitigation Measures 5. Entitlement Plan Amendment No. 11-002 — Notice of Action dated April 8, 2011 Findings and Conditions of Approval 6. Letter from Jeffrey Oderman, Rutan & Tucker, LLP on behalf of BTDJM Phase II Associates, LLC dated October 3, 2011 7. Power Point Presentation HB -423- Item 15. - 9 1 ATTACHMENT s Item 15. - 10 HB -424- ATTACHMENT NO. 1 SUGGESTED FINDINGS FOR APPROVAL DEVELOPMENT AGREEMENT NO.2008-001 SUGGESTED FINDINGS FOR CEOA: The City Council finds that the development agreement was included in the scope of The Village at Bella Terra Environmental Impact Report (EIR No. 07-003) certified by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-03 considered by the Planning Commission on August 24, 2010. SUGGESTED FINDING FOR APPROVAL — DEVELOPMENT AGREEMENT NO.2008-001: Development Agreement No. 2008-001 is consistent with the General Plan and Specific Plan No. 13. Development Agreement No. 2008-001 provides for the construction of The Village at Bella Terra mixed use project, which complies with the SP 13 development code and was found to conform to the goals and policies of the General Plan as approved by the Planning Commission on August 24, 2010 and amended under Entitlement Plan Amendment No. 2011-002 as approved by the Director of Planning and Building on April 8, 2011. The development agreement ensures the construction of the approved project under the 10-year term, therefore, the development agreement is consistent with the following General Plan goals and policies: A. Urban Design Element Goal UD 1.1: Enhance the visual image of the City of Huntington Beach. B. Land Use Element Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Goal LU 4.2.4: Require that all development be designed to provide adequate space for access, parking, supporting functions, open space, and other pertinent elements. Goal LU 7: Achieve a diversity of land uses that sustain the City's economic viability, while maintaining the City's environmental resources and scale and character. Goal LU 8: Achieve a pattern of land uses that preserves, enhances, and establishes a distinct identity for the City's neighborhoods, corridors, and centers. Policv LU 8.1.1: Accommodate land use development in accordance with the patterns and distribution of use and density depicted on the Land Use Plan Map, in accordance with the principles discussed below: a. Not applicable b. Vary uses and densities along the City's extended commercial corridors, such as Beach Boulevard. DA 08-001 Bella Terra Attachment No. 1.1 HB -425- Item 15. - 11 c. Increase diversification of community and local commercial nodes to, serve adjacent residential neighborhoods. e. Intermix uses and densities in large-scale development projects. f. Site development to capitalize upon potential long-term transit improvements. g. Establish linkages among community areas, which may include pedestrian and vehicular paths, landscape, signage, other streetscape elements, open space, transitions, in form, scale, and density of development, and other elements. Goal L U 9: Achieve the development of a range of housing units that provides for the diverse economic, physical, and social needs of existing and future residents of Huntington Beach. Policy LU9.1.4: Require that recreational and open space amenities be incorporated in new multi- family developments and that they be accessible to and of sufficient size to be usable by all residents. Policy LU 10.1.15: Require that regional commercial developments be designed to convey the visual sense of an integrated center by consideration of the following principles: a. Use of multiple building volumes and masses and highly articulated facades to reduce the visual sense of large scale "boxes"; b. Use of roofline or height variations to visually differentiate the building massing and incorporation of recesses and setbacks on any elevation above the second floor above grade; c. Siting of a portion of the buildings in proximity to their primary street frontage to convey a visual relationship to the street and sidewalks; d. Design of the exterior periphery of the structures to contain shops, restaurants, display windows, and other elements that provide visual interest to parking areas and the street elevation; e. Inclusion of a "public square" as a gathering place of public activity in multi -tenant regional centers; f. Clear identification of building entrances; g. Use of landscape that provides a three-dimensional character; h. Encourage the provision of public art; i. Inclusion of consistent and well -designed signage integrated with the building's architectural character, including pedestrian -oriented signage; and j. Design of parking structures to be visually integrated with the commercial buildings. Goal LU 11: Achieve the development of projects that enable residents to live in proximity to their jobs, commercial services, and entertainment, and reduce the need for automobile use. Policy L U 11.1.2: Limit commercial uses in mixed use development projects to those uses that are compatible with the residences. Policy LU 11.1.4: Require the incorporation of adequate onsite open space and recreational facilities to serve the needs of the residents in mixed use development projects. Policv LU 11.1.5: Require that mixed use developments be designed to mitigate potential conflicts between the commercial and residential uses, considering such issues as noise, lighting, security, and truck and automobile access. DA 08-001 Bella Terra Attachment No. 1.2 Item 15. - 12 HB -426- Policv L U 11.1.6: Require that the ground floor of structures that horizontally integrate housing with commercial uses locate commercial uses along the street frontage (housing may be located to the rear and/or on upper floors). Policy LU 11.1.7: Require that mixed use development projects be designed to achieve a consistent and high quality character, including the consideration of the: a. Visual and physical integration among the commercial and residential uses (Plates LU-3 and LU-4); b. Architectural treatment of building elevations to convey the visual character of multiple building volumes and individual storefronts and residential units. Implementation Program I-LU 7: Where appropriate, the City may use Development Agreements as binding implementation tools. Development Agreements are authorized by State law to enable a city to enter into a binding contract with a developer that assures the city as to the type, character, and quality of development and additional "benefits" that may be contributed and assures the developer that the necessary development permits will be issued regardless of changes in regulations. The development agreement would ensure that the project is developed in accordance with the approved Village at Bella Terra development plan, consisting of a mixed use, high density development. The resulting project increases housing options for diverse household types, promotes alternative modes of transportation, creates a local sense of place, reduces infrastructure and maintenance costs, and allows for more efficient use of land resources. Through the approved Affordable Housing Agreement, the project is required to meet affordable housing obligations providing the equivalent of 15 percent of the units as affordable. Additionally, the terms of the agreement specify that the developer would be responsible for community improvements beyond the typical obligations of the project in the form of additional street improvements along Center Avenue. Finally, the benefits of the development agreement include assurances that if the property owner proceeds with construction, then the high quality mixed use project as approved under recent entitlements will be implemented, payment of for -sale park and recreation fees will be collected if the units are sold at a future date, and tenant notification and first right of refusal to buy will be provided if the rental units are converted to for -sale units. 2. Development Agreement No. 2008-001 is consistent with Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and applicable provisions of the Huntington Beach Municipal Code. Chapter 246 of the HBZSO authorizes the City, pursuant to the California Government Code, to enter into binding development agreements in order to ensure that development may proceed in accordance with the standards and policies in place at the time the project is approved. The subdivision of property as approved under Tentative Tract Map No. 17261 complies with the Subdivision Map Act. Additionally, by specifying the minimum tenant notification requirements and establishing the tenant's first right of refusal to purchase the for -sale unit, the development agreement complies with the Subdivision Map Act. 3. Development Agreement No. 2008-001 will not be detrimental to the health, safety, and general welfare of the surrounding properties nor will it adversely affect the orderly development of the property. The development agreement ensures that the project will be constructed in accordance with the Specific Plan No. 13 development code and conditions of approval and mitigation measures adopted pursuant to Site Plan Review No. 10-001, Entitlement Plan Amendment No. 11-002, DA 08-001 Bella Terra Attachment No. 1.3 HB -427- Item 15. - 13 Environmental Impact Report No. 07-003, and Addendum to Environmental Impact Report No. 07- 003 for The Village at Bella Terra project. 4. The City Council has considered the fiscal effect of Development Agreement No. 2008-011 on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. Development Agreement No. 2008-001 provides for the mutually beneficial development of the property pursuant to approvals for The Village at Bella Terra mixed use project. The City Council has considered the fiscal impacts of deferring payment of the For -Sale Park and Recreation fees until such time that a condominium plan is pursued along with the public service needs of the community. The Council approves the development agreement because the project will add 467 multi -family residential units, consistent with the goals of the Housing Element and park and recreation fees will be paid based on the type of units proposed. The Development Agreement requires the developer to pay the difference between the rental unit park and recreation fees and the for -sale park and recreation fees at the time the units are sold as condominiums. Therefore, the development agreement will not impact the fiscal needs of the City in terms of the requested delayed payment. The project has also been fully vetted through an environmental impact report (EIR) process. The EIR, including an alternatives analysis and associated mitigation measures, was certified by the Planning Commission and was not subject to legal challenge. Therefore, the project and the development agreement will not have an impact on the City's environmental resources. Finally, Center Avenue, near the vicinity of the proposed development project, is in need of repair and repaving and the development agreement provides for the improvement of the north side of Center Avenue along the Costco frontage and both sides of Center Avenue between the Costco frontage and the I-405 Freeway off -ramps. By allowing deferred payment of condo park and recreation fees, requiring tenant notification of the potential for the units to be sold at a later date, allowing each tenant the first right of refusal to purchase their unit, and including the provision to complete the Center Avenue refurbishment project, the City Council has effectively balanced out the housing and public service needs of the Huntington Beach community with the fiscal effects of the development. INDEMNIFICATION AND HOLD HARMLESS CONDITION: The owner of the property which is the subject of this project and the project applicant if different from the property owner, and each of their heirs, successors and assigns, shall defend, indemnify and hold harmless the City of Huntington Beach and its agents, officers, and employees from any claim, action or proceedings, liability cost, including attorney's fees and costs against the City or its agents, officers or employees, to attack, set aside, void or annul any approval of the City, including but not limited to any approval granted by the City Council, Planning Commission, or Design Review Board concerning this project. The City shall promptly notify the applicant of any claim, action or proceeding and should cooperate fully in the defense thereof. DA 08-001 Bella Terra Attachment No. 1.4 Item 15. - 14 HB -428- ATTACHMENT .s i ORDINANCE NO. 3929 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND BELLA TERRA VILLAS, LLC (PROPERTY OWNER) (DEVELOPMENT AGREEMENT NO. 08-001) WHEREAS, the Planning Commission approved Site Plan Review , No. 10-001 to develop an approximately 10.4-acre property located at 7601 Edinger Avenue,`( 'Property) with a mixed use project consisting of 467 apartment units, 30,000 square feet of r6iail/restaurant uses, a shared use of parking, and a three foot, nine inch retaining wall alonWfhe west property line (Project) pursuant to Specific Plan No. 13 (SP 13); and17 The City and Property owner each mutually desire to enter.tnto a development agreement with one another, known as Development Agreement No. 08-001(attached hereto as Exhibit A, and incorporated by this reference), to permit and ensure tl at the Property is developed in accordance with the approved Site Plan Review No. 10-0191, to achieve the mutually beneficial development of the Property. , NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: ,t SECTION 1. That the City Council hereby finds that Development Agreement No. 08- 001 conforms to Government Code Section 65,.864 et. seq. and that: a. Development Agreement No. 08-001 is consistent with the Huntington Beach General Plan and the applicable provisions of Specific Plan No. 13. b. Development Agreement No. 08-001 is consistent with Chapter 246 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and the Huntington Beach Municipal Code. C. Development Agreement No. 08-001 will not be detrimental to the health, safety and general welfare, ar�d will not adversely affect the orderly development of the property because it is consistent with applicable land use regulations of Specific Plan No. 13, mitigation measures adopted for the project in accordance with Addendum EIR No. 07-003, and conditions approved for Site Plan Review No. 10-001. d. / The City Council has considered the fiscal effect of Development Agreement No. 08-1601 on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. 68893 1 Ordinance No. 3929 SECTION 2. Based on the above findings, the City Council of the City of Huntington Beach hereby approves Development Agreement No. 08-001 and adopts it by this ordinance pursuant to Government Code Section 65867.5. This action is subject to a referendum. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of , 2011 ATTEST: Mayor INITIA and Building APPROVED AS TO FORM: 9 ti Attachment: Exhibit A Development Agreement No. 08-O91 j, 68893 2 EXHIBIT A RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Space Above This Line for Recorder's Office Use Only (Exempt from Recording Fee per Gov. Code §§ 6103 and 27383) DEVELOPMENT AGREEMENT (VILLAGE AT BELLA TERRA PROJECT) by and between CITY OF HUNTINGTON BEACH and BELLA TERRA VILLAS LLC, a Delaware limited liability company TABLE OF CONTENTS DA!_U 1. Definitions...............................................................................................................................6 2. General Provisions.................................................................................................................. 9 2.1 Binding Covenants.......................................................................................................... 9 2.2 Interest of DEVELOPER................................................................................................ 9 2.3 Term. This Agreement shall remain in effect during the Term ............................. 9 2.4 1 Transfers and Assignments........................................................................................... 11 2.4.1 Restrictions on DEVELOPER's Right to Assign ................................................. 11 2.4.2 CITY's Fee............................................................................................................ 12 2.4.3 No Waiver............................................................................................................. 12 2.4.4 Rights of Successors and Assigns......................................................................... 13 3. Development Provisions....................................................................................................... 13 3.1 Vesting..........................................................................................................................13 3.1.1 Project................................................................................................................... 13 3.1.2 Limits on Development......................................................................................... 13 3.1.3 Entitlements, Permits, and Approvals - Cooperation ............................................ 13 3.1.3.1 Processing......................................................................................................... 13 3.1.3.2 Other Permits.................................................................................................... 14 3.1.3.3 Tentative Map Extensions................................................................................. 14 3.1.3.4 Vesting Tentative Maps.................................................................................... 14 3.1.3.5 Lot Line Adjustments....................................................................................... 14 3.1.3.6 Multiple Final Maps.......................................................................................... 14 3.1.3.7 Intentionally Omitted........................................................................................ 14 3.2 Reserved Authority....................................................................................................... 15 3.2.1 Future Changes in Development Exactions; Conditions on Future Development Approvals....................................................................................... 15 3.2.2 Construction Codes............................................................................................... 15 3.2.3 State and Federal Laws and Regulations...........................................................I... 16 3.2.4 Suspension of Development in Order to Protect Health and Safety ..................... 16 3.3 Amendment of Development Agreement..................................................................... 16 3.3.1 Initiation of Amendment....................................................................................... 16 3.3.2 Procedure.............................................................................................................. 16 3.3.3 Consent................................................................................................................. 16 4. Public Benefits...................................................................................................................... 16 4.1 Public Benefits.............................................................................................................. 16 5. Miscellaneous Obligations of the Parties.............................................................................. 17 5.1 Park Fee and Future Condominium Sale Issues........................................................... 17 5.1.1 Payment of Rental Park Fees Upon Issuance of Building Permits ....................... 18 -1- 5.1.2 Payment of For -Sale Project Park Fees Upon Sale of Condo Units ..................... 18 5.1.3 Security for Owed Fees......................................................................................... 18 5.1.4 Applicable Conversion Regulations..................................................................... 19 5.1.5 Indemnity and Payment of Fees in the Event of Successful Challenge ................ 19 5.1.6 No Waiver............................................................................................................. 19 6. Indemnification..................................................................................................................... 19 7. Relationship of Parties.......................................................................................................... 20 8. Amendment or Cancellation of Agreement.......................................................................... 20 9. Periodic Review of Compliance with Agreement............................................................ 20 9.1 Periodic Review............................................................................................................ 20 9.2 Good Faith Compliance................................................................................................ 20 9.3 Failure to Conduct Annual Review............................................................................... 20 9.4 Initiation of Review by City Council............................................................................ 21 9.5 Administration of Agreement....................................................................................... 21 10. Events of Default: Remedies and Termination................................................................. 21 10.1 Default..........................................................................................................................21 10.2 Procedure Regarding Defaults...................................................................................... 21 10.3 Right to Cure................................................................................................................. 21 10.4 Delay Not a Waiver...................................................................................................... 22 10.5 Time to Cure................................................................................................................. 22 10.6 Termination of Agreement............................................................................................ 22 10.7 Default During Annual Review.................................................................................... 22 10.8 Institution of Legal Actions.......................................................................................... 22 10.9 Limitation on Damages Remedy Against Developer ................................................... 22 10.10 No Damages Relief Against City.................................................................................. 23 10.11 Limitation on Cross-Defaults........................................................................................ 23 10.12 Estoppel Certificates..................................................................................................... 23 11. Waivers, Delays, and Extensions of Performance Deadlines ........................................... 24 11.1 No Waiver..................................................................................................................... 24 11.2 Third Parties.................................................................................................................. 24 11.3 Force Majeure............................................................................................................... 24 11.4 Notice of Delay............................................................................................................. 24 12. Notices..............................................................................................................................24 13. Intentionally Omitted........................................................................................................ 26 14. Recording..........................................................................................................................26 15. Effect of Agreement on Title............................................................................................ 26 15.1 Effect on Title............................................................................................................... 26 15.2 Encumbrance Permitted................................................................................................ 26 15.3 Rights of Lenders.......................................................................................................... 26 16. Severability of Terms........................................................................................................ L 17. Subsequent Amendment to Authorizing Statute............................................................... 27 18. Rules of Construction and Miscellaneous Terms............................................................. 28 18.1 Interpretation and Governing Law................................................................................ 28 18.2 Section Headings .................... ... .:....................................................... .............. ............ 28 18.3 Gender...........................................................................................................................28 18.4 Time of Essence............................................................................................................ 28 18.5 Recitals..........................................................................................................................28 18.6 Entire Agreement.......................................................................................................... 28 19. Not for Benefit of Third Parties........................................................................................ 28 20. Relationship to AHA......................................................................................................... 28 21. Cooperation in Event of Legal Challenge......................................................................... 29 EXHIBITS EXHIBIT A - LEGAL DESCRIPTION EXHIBIT B - SITE MAP EXHIBIT C - PAVING AREA MAP EXHIBIT D - SITE PLAN FOR PEDESTRIAN PATH EXHIBIT E - ASSIGNMENT OF PAYMENTS EXHIBIT F - APPLICABLE CONVERSION REGULATIONS DEVELOPMENT AGREEMENT (VILLAGE AT BELLA TERRA PROJECT) This DEVELOPMENT AGREEMENT (VILLAGE AT BELLA TERRA PROJECT) (the "Agreement") is dated for reference purposes only as of the day of 12012, and is being entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation, organized and existing under the laws of the State of California ("CITY"), and Bella Terra Villas LLC, a Delaware limited liability company ("DEVELOPER"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. CITY and DEVELOPER are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties." RECITALS This Agreement is predicated upon the following facts: A. California Development Agreement Legislation authorizes the CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and other development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of development; and encourage and provide for the development of public infrastructure and amenities to support the development of new housing and commercial projects. B. On October 21, 2011, DEVELOPER acquired from BTDJM Phase II Associates, LLC, a Delaware limited liability company ("BTDJM"), fee ownership of that certain real property consisting of approximately 10.40 acres of land area located at 7601 Edinger Avenue in the northern portion of the City of Huntington Beach, County of Orange, State of California, that City has designated as General Plan Sub -area 5B and Specific Plan 13 Area B and that is more particularly described in the Legal Description in Exhibit "A" attached hereto and made a part hereof (the "Property") and depicted in the Site Plan in Exhibit "B" attached hereto and made a part hereof. C. DEVELOPER desires to develop the Property as a mixed -use residential and commercial development commonly known as The Village at Bella Terra (the "Project") in accordance with the provisions of this Agreement, the "Development Plan" described herein, and other applicable regulations of the City of Huntington Beach and other governmental agencies having jurisdiction over the Property and the Project. -1- D. CITY, BTDJM (prior to DEVELOPER'S acquisition of fee title to the Property), and DEVELOPER (after its acquisition of fee title to the Property) have negotiated this Agreement in order to create a beneficial development project and a physical environment that will conform to and complement the goals of CITY's General Plan, including being sensitive to human needs and values, and facilitate efficient traffic circulation. By its approval and execution of this Agreement, CITY has determined that CITY (including, without limitation the existing and future residents of CITY) will receive the following direct and indirect extraordinary benefits from the implementation of this Agreement: 1. DEVELOPER shall construct/install certain improvements (the "Off -site Public Improvements") as provided herein, that will provide substantial benefits to CITY and its residents; and 2. DEVELOPER shall contribute TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000) towards the planning, design, permit fees and construction of a certain pedestrian path between the Property and an adjacent property with APN 142-074-03 and 142-074-04 (referenced hereinafter as "the Levitz Parcel"), at the time a building permit is issued for Development of the Levitz Parcel if such permit is issued during the Term of this Agreement. E. DEVELOPER will provide the Affordable Housing in accordance with that certain AFFORDABLE HOUSING AGREEMENT ("AHA") entered into as of October 4, 2010, by and between the AGENCY and BTDJM, which AHA was assigned to and assumed by DEVELOPER pursuant to that certain Assignment and Assumption Agreement dated as of October 21, 2011, entered into by and between DEVELOPER and BTDJM and consented to by AGENCY. F. BTDJM (prior to DEVELOPER'S acquisition of fee title to the Property), DEVELOPER (after its acquisition of fee title to the Property), and CITY have taken the following actions with respect to this Agreement and the Project on or before the Effective Date of this Agreement: 1. on November 17, 2008, after a duly noticed and conducted public hearing, the City Council of CITY adopted its Resolution No. 1625 certifying the Environmental Impact Report (the "Project EIR") for the original Village at Bella Terra project (the "Original Project") that at that time was proposed to be developed on approximately 15.85 acres of land area comprising the Property and a portion of the adjacent General Plan Sub -area 5A and Specific Plan 13 Area B (the "Original Project Site"), approving a Mitigation Monitoring Program with respect thereto, and making certain findings and determinations with respect to the Original Project, including the adoption of a statement of overriding considerations; 2. on November 17, 2008, after a duly noticed and conducted public hearing, the City Council of CITY adopted its Resolution No. 2008-69 approving General Plan Amendment (GPA) No. 07-001 amending the Land Use Element of CITY' s General Plan -2- relating to the Original Project Site to change the designation of the Original Project Site from CR-F2-sp-mu (B) (Regional Commercial) to CR-F2-sp-mu (F 14) and authorize the following changes to the permitted land uses of the Original Project Site: (a) allow horizontally integrated mixed -use development in addition to the previously allowed vertical mixed -use development; (b) increase the allowable residential density from the previously allowed 25 dwelling units per acre (DU/acre) up to a maximum of 45 DUs/acre (with limitations specified below); (c) reduce the allowable commercial floor area ratio (FAR) from the previously authorized maximum of 0.5 to 0.2; (d) increase the allowable total building FAR from the previously authorized maximum of 1.5 to 1.75 (1,208,245 square feet of total commercial and residential development); and (e) increase the maximum number of stories of buildings from the previously authorized maximum of 4 stories to 6 stories; 3. on November 17, 2008, after a duly noticed and conducted public hearing, the City Council of CITY adopted its Resolution No. 2008-70 approving Specific Plan No. 13 (Zoning Text Amendment No. 07-002), which amends Specific Plan (SP) 13 applicable to the Original Project Site to allow residential uses on the Original Project Site consistent with GPA No. 07-001, establish residential design and development standards, and provide for development standards for commercial uses, including without limitation development standards applicable to parking, setbacks, and building heights, to be evaluated in accordance with the Specific Plan for the Original Project Site; 4. on March 15, 2010, BTDJM submitted an application to CITY to further amend the General Plan (GPA No. 10-001) and Specific Plan No. 13 (Zoning Text Amendment No. 10-001) in the following respects: (a) to realign the dividing line between General Plan Sub -areas 5A and 5B and Specific Plan 13 Areas A and, B by increasing the size of General Plan Sub -area 5A and Specific Plan 13 Area A from 41.06 acres to 46.51 acres and by correspondingly decreasing the size of General Plan Sub -area 5B and Specific Plan 13 Area B from 15.85 acres to 10.40 acres; (b) by adding "big box" retail and fuel station uses and design and development standards to the commercial uses and design and development standards for General Plan Sub -area 5A and Specific Plan 13 Area A; (c) to increase the maximum amount of authorized commercial development in General Plan Sub -area 5A and Specific Plan 13 Area A; (d) to retain the mixed -use overly within the 10.4 acres of land area encompassed by the downsized General Plan Sub -area 5B and Specific Plan 13 Area B (i.e., on the Property that is the subject of this Agreement); and (e) to decrease the maximum number of authorized residential units in General Plan Sub -area 5A and Specific Plan 13 Area B from seven hundred thirteen (713) to four hundred sixty-eight (468) and to decrease the maximum amount of authorized commercial development in General Plan Sub -area 5B and Specific Plan 13 Area B from one hundred thirty-eight thousand eighty-five (138,085) square feet to thirty thousand (30,000) square feet; 5. on March 15, 2010, BTDJM submitted an application to CITY for Site Plan Review No. 10-001 for the establishment, maintenance and operation of a 154,113 square foot Costco with tire sales/installation center, outside food service, and -3- 16-pump gas station on approximately 8.2 acres of land within the reconfigured General Plan Sub -area 5A and Specific Plan 13 Area A; 6. on June 16, 2010 BTDJM submitted an application to CITY for additional development under Site Plan Review No. 10-001 for the establishment, maintenance and operation of 467 multi -family residential units; an additional 30,000 square feet of mixed use retail and restaurants; a shared use of parking, and; a 3'-9" retaining wall along the western boundary to be developed in General Plan Sub -area 5B and Specific Plan 13 Area B (i.e., on the Property); 7. on August 24, 2010, after a duly noticed and conducted public hearing, the Planning Commission of CITY adopted a motion (i) recommending that the City Council approve amendments to the General Plan and Specific Plan 13 (Zoning Text Amendment [ZTA] 10-001 referred to in Recital FA) and (ii) approving Site Plan Review No. 10-001 with findings and conditions of approval (and subject to a condition of approval stipulating that the Site Plan Review would not become effective until the General Plan Amendment and Zoning Text Amendment were approved by the City Council); 8. on September 20, 2010, the City Council of CITY determined pursuant to CEQA (defined in Section 1 of this Agreement) that the Project EIR prepared and certified for the Original Project adequately addresses all of the environmental impacts of the Original Project, as revised by the application(s) referred to in Recitals F-4, F-5, and F-6, that none of the circumstances warranting the preparation of a Supplemental EIR or Supplement to the previously certified EIR set forth in Public Resources Code Section 21166 and State CEQA Guidelines Section 15162 are present, that minor technical changes or additions to the Project EIR are appropriate, and that, accordingly, an Addendum to the Project EIR is sufficient to comply with CEQA; 9. on September 20, 2010, after a duly noticed and conducted public hearing, the City Council of CITY adopted its Resolution Nos. 2010-67 and 2010-68 approving, respectively, General Plan Amendment (GPA) No. 10-001 and Zoning Text Amendment (ZTA) No. 10-001; 10. on February 23, 2011, after a duly noticed and conducted public hearing, the Planning Commission of CITY approved Tentative Tract Map No. 17261 for condominium purposes with certain findings and conditions of approval; 11. on October 25, 2011, following a duly noticed and conducted public hearing, the Planning Commission of CITY forwarded this Agreement to the City Council without a recommendation; 12. on November 11, 2011, BTDJM submitted a letter to CITY withdrawing its development agreement application and reassigning said application to DEVELOPER and DEVELOPER submitted a separate letter to CITY applying for approval of this Agreement; and in 13. on , 2012, after a duly noticed and conducted public hearing, the City Council of CITY adopted its Ordinance No. (hereinafter the "Authorizing Ordinance") finding and determining that this Agreement is consistent with CITY's General Plan and Specific Plan 13 (as amended by GPA No. 10-001 and ZTA No.10- 001) and approving and authorizing the execution of this Agreement. G. Notwithstanding that some of the BTDJM, DEVELOPER, and CITY actions referred to in Recital F relate in whole or in part to real property that is outside the boundaries of the Property (i.e., the real property included in General Plan Sub -area 5A and Specific Plan 13 Area A as of the Effective Date), this Agreement is intended to apply solely and exclusively to the Property (i.e., the real property included in General Plan Sub -area 5B and Specific Plan 13 Area B as of the Effective Date). H. In consideration of the extraordinary benefits to be provided by DEVELOPER and the Project, and in order to strengthen the public planning process and reduce the economic risk of development, by this Agreement CITY intends to provide to DEVELOPER the assurance, subject to all of the terms and conditions of this Agreement, that it can proceed with Development of the Project for the Term of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the CITY's General Plan and other applicable ordinances, policies, rules, and regulations of CITY and other governmental agencies having jurisdiction over the Property and the Project existing as of the Effective Date. I. Pursuant to Section 65867.5 of the California Government Code, i.e., Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Development Plan for the Project are consistent with CITY's General Plan and the Specific Plan applicable to the Property, implement the goals and policies of CITY' s General Plan, and provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City of Huntington Beach, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety, and general welfare of CITY and its residents; (iii) adopting this Agreement is consistent with CITY' s General Plan and constitutes a present exercise of CITY' s police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Legislation. AGREEMENT NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement, the Parties agree as follows: -5- 1. Definitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: "AGENCY" means the City of Huntington Beach Redevelopment Agency, a public body, corporate and politic. "AHA" means that certain Affordable Housing Agreement, dated October 4, 2010, by and between DEVELOPER and AGENCY. AHA as used herein shall mean, refer to and include the AHA, as well as any riders, exhibits, addenda, implementation agreements, amendments and attachments thereto (which are hereby incorporated herein by this reference) or other documents expressly incorporated by reference in the AHA. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such term in the AHA. "Authorizing Ordinance" means Ordinance No. approving this Agreement. "Block" means no less than one hundred (100) residential units. "BTDJM" means BTDJM Phase II Associates, LLC, a Delaware limited liability company. "CEQA" means the California Environmental Quality Act (Public Resources Code § 21000 et seq.), the State CEQA Guidelines promulgated by the Secretary for Resources thereunder (California Code of Regulations, § 15000 et seq.), and the local CEQA Guidelines approved or adopted by CITY. "CITY" means the City of Huntington Beach, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California. "City Council" means the duly elected and constituted city council of CITY. "Construction Codes" means laws and/or regulations governing engineering and construction standards and specifications, including without limitation, uniform building, electrical, energy, fire, housing, mechanical, and plumbing codes that govern construction standards in all jurisdictions throughout the State of California, as the same may be modified from time to time by CITY pursuant to local ordinance, as and to the extent permitted by applicable California law. "Default" has the meaning ascribed to that term in Section 10.1 or 10.2 of this Agreement, as applicable. "Develop" or "Development" or "Developing" means the improvement of the Property for purposes consistent with the Development Plan, including, without limitation: subdividing, grading, the construction and installation of the Off -site Public Improvements, the construction of structures and buildings, and the installation of landscaping, all in accordance with the 0 provisions of this Agreement, but does not include the maintenance, repair, reconstruction, or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. "DEVELOPER" means Bella Terra Villas LLC, a Delaware limited liability company, and all of its assignees and successors in interest which are expressly permitted by this Agreement. Not by way of limitation of the foregoing, the term "DEVELOPER" will mean BTDJM as to Lots 3, 4, and A of Tract 17261 if and when Bella Terra Villas LLC transfers said lots back to BTDJM, as authorized in Section 2.4.1 of this Agreement. "DEVELOPER Deed of Trust" means a mortgage, deed of trust, or any other security instrument recorded against the Property or a separate legal parcel or parcels within the Property to secure DEVELOPER's obligation to repay a loan for the acquisition of the Property (or portion thereof), Development of the Project (or applicable portion thereon), and payment of overhead, financing, marketing, maintenance, and related costs pertaining thereto, including without limitation any amendment or refinancing of a loan provided for such purpose and any permanent or take-out loan relating thereto. "Development Agreement Legislation" means Sections 65864 through 65869.5 of the California Government Code as it exists as of the Effective Date. "Development Exactions" means any of the following: (1) any requirement of CITY for the dedication of land (including without limitation through the encumbrance of land with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity); (ii) any requirement of CITY for the construction or installation of public improvements or facilities, whether located on or off of the Property and including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity; (iii) any requirement of CITY that all or any portion of the Property be included in one or more Financing Districts and/or be subject to the payment of any special taxes, assessments, or fees, of whatever amount and however denominated, in order to provide any such public improvements, facilities, or services in conjunction with Development or to lessen, offset, mitigate, or compensate for the impacts of Development on the environment or other public interests; and (iv) any requirement of CITY imposing any fee or charge, by whatever name called, in addition or in lieu of any of the items listed in clauses (i)-(iii), inclusive, or to mitigate the impacts of the Project on CITY or the community. As used herein, the term "Development Exactions" does not include generally applicable fees or charges imposed by CITY on developers/builders to pay or reimburse CITY for its actual and reasonable administrative and payroll costs incurred in processing and reviewing plans and penults and inspecting work performed in the Development of real property, including without limitation performing required reviews under CEQA. "Development Plan" means the plan for developing the Project on the Property in accordance with this Agreement, the Development Plan Approvals, and the Future Development Approvals. The Future Development Approvals automatically shall become a part of the Development Plan and shall be included within the scope of DEVELOPER' s vested rights -7- provided for in this Agreement (subject to the limitations and exceptions to such vesting rights set forth herein) without the need for any amendment of this Agreement when the same are issued or approved by CITY and become final and effective. Each of the documents memorializing the Development Plan is (or will be) maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. "Development Plan Approvals" means all of the land use, development, and building approvals of the City Council relating to the Property and the Development Plan, including the Future Development Approvals (when the same are issued or approved by CITY and become final and effective). As of the Effective Date of this Agreement, the Development Plan Approvals consist of all of the City Council's actions with respect to the Property referred to in Recital F of this Agreement and, to the extent not inconsistent with the foregoing and to the extent applicable to the Project and the Property and adopted and in effect as of the Effective Date, all other provisions of CITY's General Plan, Zoning Ordinance, Specific Plan 13 and Subdivision Ordinance, and Construction Codes. Notwithstanding any other provision set forth in this Agreement to the contrary, the term Development Plan Approvals is not intended to apply to CITY's actions that pertain solely to real property not included within the boundaries of the 10.40-acre Property described in Recital B and Exhibit "A" hereto, including without limitation the 8.2-acre Costco site within GPA Sub -area 5A and Specific Plan 13 Area A that is referred to in Recital F.5 of this Agreement. "Effective Date" means the date the Authorizing Ordinance becomes effective. "End User" means a buyer, assignee, or transferee of one or more individual or subdivided unit(s)/lot(s) of the Property obtaining such unit(s) or lot(s) for the purpose of occupying or using such lots or units for its own purposes and not for use in the trade or business of further development, subdivision, or sale. The term "End User" includes, but is not limited to, any homeowner's association, merchants' association, or like entity formed with respect to any portion of the Property which owns some interest in the Property, homeowners, tenants, commercial building owners, and owners of multi -family residential units. "For -Sale Park Fee" means the park and dedication in -lieu fees required by Section 254.08 of the Huntington Beach Zoning and Subdivision Ordinance and City Council resolution in effect at the time that Developer sells a Condo Unit in accordance with Section 5.1.2. "Future Development Approvals" means those permits and approvals that DEVELOPER must obtain from CITY after the Effective Date of this Agreement as a prerequisite to its right to develop and use the Property and the Project in accordance with this Agreement, including without limitation one or more tentative tract or parcel maps, final tract or parcel maps, condominium plans/maps, use permits, variances, grading/excavation permits, building permits, and occupancy permits. "Off -Site Public Improvements" means repair of curb, gutter and sidewalk, and repaving of Center Street, in the areas designated in Exhibit "C", attached hereto and made a part hereof ("Paving Work Areas"). IN "On -Site Improvements" means physical infrastructure improvements or facilities that are or will be located on the Property. Certain On -Site Improvements may be specifically addressed in this Agreement. "Party" means either CITY or DEVELOPER, as the context dictates, and "Parties" means CITY and DEVELOPER. "Planning Commission" means the duly appointed and constituted planning commission of CITY. "Project" means the development on the Property that is referred to in Recitals C and F and the definition of "Development Plan." As used in this Agreement, the term "Project" expressly excludes development of the real property located in General Plan Sub -area 5A and Specific Plan 13 Area A as of the Effective Date. "Project EIR" means that certain environmental impact report certified by the City Council of CITY prior to the Effective Date of this Agreement that is referred to in Recital F.1 above, including without limitation the adopted Mitigation Monitoring Program for the Project approved in conjunction therewith and the Addendum to the Project FIR that was considered by the City Council of CITY and is referred to in Recitals F.7 and F.8 above. "Property" means the real property described in Recital B and Exhibit "A" attached hereto. The term "Property" does not include General Plan Sub -area 5A or Specific Plan 13 Area A, as the same were re -configured by the City Council actions referred to in Recital F.8 above. "Rental Park Fee" means the park fees required by Section 230.20 of the Huntington Beach Zoning and Subdivision Ordinance and City Council resolution in effect at the time that Developer obtains a building permit for any Block of Rental Units in accordance with Section 5.1.1. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof, as provided in Section 2.3. "Transfer" has the meaning ascribed to that term in Section 2.4.1 of this Agreement. 2. 2. General Provisions. 2.1 Binding Covenants. To the maximum extent permitted by law, the provisions of this Agreement shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all permitted successors in interest to the Parties hereto. 2.2 Interest of DEVELOPER. As of the date this Agreement is being executed by the Parties, DEVELOPER represents that it is the legal owner of the Property. 2.3 Term. This Agreement shall remain in effect during the Term. As used in herein, the "Term" shall mean the period of time commencing upon the Effective Date and terminating at 11:59 PM on the tenth (loth) anniversary of the Effective Date; subject, however, to the following exceptions: (i) nothing in this Section 2.3 is intended to limit or restrict CITY' s right to terminate this Agreement at an earlier time pursuant to Section 10.6, if applicable; (ii) if a referendum petition challenging CITY's approval of this Agreement or any of the Development Plan Approvals approved by CITY on or before the Effective Date is qualified for the ballot, the last day of the Term of this Agreement shall be extended by the number of days between the thirtieth (30th) day after the Effective Date and the date that the results of the referendum election are certified denying said challenge and upholding the validity and enforceability of this Agreement or said challenged Development Plan Approval(s); (iii) if a lawsuit is filed challenging the validity or enforceability of this Agreement or any of the Development Plan Approvals approved by CITY on or before the Effective Date, the last day of the Tem! of this Agreement shall be extended by the number of days between the thirtieth (30th) day after the Effective Date and the date that the lawsuit is dismissed with prejudice (and the time for any appeal of said dismissal has expired), a final binding written settlement agreement is executed by all parties to the litigation that upholds the validity and enforceability of this Agreement and all of the Development Plan Approvals challenged in said lawsuit, or a final non -appealable judgment is entered in said lawsuit that upholds the validity and enforceability of this Agreement and all of the Development Plan Approvals challenged in said lawsuit; (iv) DEVELOPER's indemnity obligation set forth in the first sentence of Section 6 shall remain in effect and shall apply to any claims arising prior to the otherwise applicable expiration date or termination date of this Agreement until said indemnity obligation has been fully performed and DEVELOPER' s indemnity obligation set forth in the last sentence of Section 6 shall commence immediately upon the full execution and delivery of this Agreement, prior to the Effective Date; (v) except with respect to DEVELOPER's rights and obligations set forth in Sections 3.1.3.3, 3.1.3.6, 4.1.1, 4.1.2, and 5.1 (including all subsections), which shall survive and remain in effect for the full ten (10) year term set forth herein, as said 10-year term may be extended or shortened in accordance with clauses (i)-(iii) of this sentence, this Agreement shall terminate as to any separate legal lot(s) or parcel(s) within the Property upon which residential units are constructed upon completion of Development with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and CITY's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such Development; (vi) except with respect to DEVELOPER' s rights and obligations set forth in Sections 3.1.3.3, 3.1.3.6, 4.1.1, 4.1.2, and 5.1 (including all subsections), which shall survive and remain in effect for the full ten (10) year term set forth herein, as said 10-year term may be extended or shortened in accordance with clauses (i)-(iii) of this sentence, this Agreement shall terminate as to any non-residential lot(s) or parcel(s) within the Property, upon the completion of Development with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and CITY's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such Development; and (vii) if a court of competent jurisdiction issues a final non -appealable judgment or order invalidating this Agreement or declaring this Agreement to be unenforceable the Term of this Agreement shall expire on the date said judgment or order becomes final. -10- The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcel(s) shall not affect any right or duty of DEVELOPER arising from a source other than this Agreement. In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s), and notwithstanding any other provision set forth herein, upon request by DEVELOPER, City, any End User, or any other permitted successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable form a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s), and notwithstanding any other provision set forth herein, DEVELOPER AGREES that it is not entitled to any damages from the City as further provided herein. 2.4 Transfers and Assignments. 2.4.1 Restrictions on DEVELOPER's Right to Assign. The qualifications and identities of the persons and entities comprising DEVELOPER are of particular concern to CITY. It is because of these qualifications and identities of the persons and entities comprising DEVELOPER that CITY is entering into this Agreement with DEVELOPER. Accordingly, prior to the termination of this Agreement with respect to any separate legal lot or parcel within the Property, DEVELOPER shall not, without the prior written approval of CITY, voluntarily or involuntarily do any of the following (collectively, a "Transfer"): (i) transfer or assign or make any total or partial conveyance of the Property; (ii) transfer or assign all or any part of DEVELOPER' s rights or obligations set forth in this Agreement with respect to the Property; (iii) authorize or permit a change in the ownership, management, or control of DEVELOPER (which, for purposes of this Agreement, shall be defined to mean a transfer of either (A) more than twenty-five percent (25%) of the beneficial ownership interest in DEVELOPER as of the Effective Date or (B) in the event DEVELOPER is or becomes a limited liability company or a general or limited partnership, a transfer of the identity of the member or partner with management responsibility for DEVELOPER; or (iv) authorize or permit any voluntary or involuntary successor in interest of DEVELOPER to acquire any rights or powers under this Agreement with respect to said lot or parcel. Notwithstanding the foregoing, the following shall not be considered to be a Transfer and shall not require CITY approval for any purpose under this Agreement: (i) a transfer or assignment to any entity or entities in which DEVELOPER or any combination of persons or entities directly or indirectly owning a minimum of fifty-one percent (51%) of the beneficial interest in DEVELOPER as of the Effective Date directly or indirectly maintains a minimum of fifty-one percent (51%) of the ownership interest and management control; (ii) after the recordation of the final map for Tract 17261, the transfer of Lots 3, 4, and A of said tract by DEVELOPER to BTDJM; (iii) transfers of stock in a publicly traded corporation or the ownership interests in any real estate investment trust; (iv) transfers in trust for the benefit of family members; (v) transfers occurring due to the death or mental or physical incapacity of the -I1- transferor; (vi) a transfer for financing purposes to the holder of a DEVELOPER Deed of Trust; (vii) a sale, conveyance, or transfer of the applicable lot(s) or parcel(s) at foreclosure or a conveyance thereof in lieu of a foreclosure pursuant to a foreclosure thereof by the holder of any DEVELOPER Deed of Trust; and (viii) the sale, ground lease, or lease of a lot or parcel within the Property, or a building or portion of a building situated thereon, to an End User, provided that the closing date for any such sale or the commencement date for any such lease, as applicable, does not occur until after DEVELOPER completes construction of the Off -Site Public Improvements and the portion of the Project situated thereon (excluding any minor non -life safety "punch list" items and, with respect to any non-residential lots or parcels, any tenant improvements). DEVELOPER shall deliver written notice to CITY requesting approval of any Transfer that requires CITY approval hereunder. CITY shall not unreasonably withhold, condition, or delay any such approval. In the event CITY desires that DEVELOPER submit information to CITY to assist CITY in making its decision, CITY shall notify DEVELOPER what information is so desired within ten (10) business days after receipt of DEVELOPER' s request for approval and DEVELOPER shall furnish the requested information to CITY at no expense to CITY. In considering whether it will grant approval to any such Transfer, CITY shall consider such factors as (i) the financial strength and capability of the proposed assignee/transferee to perform DEVELOPER's then executory obligations hereunder and (ii) the proposed assignee/transferee's experience and expertise in the planning, financing, and development of similar projects. No Transfer, including an assignment or transfer pursuant to clause (i) of the preceding paragraph which does not require CITY approval hereunder, but excluding assignments and transfers pursuant to clauses (ii)-(vi) of the preceding paragraph, shall be effective unless and until the proposed assignee/transferee executes and delivers to CITY an agreement in a form reasonably satisfactory to the City Attorney of CITY assuming the obligations of the assignor/transferor which have been assigned. As of the effective date of any such permitted assignment or transfer, the assignor shall be released from any further liability to CITY under this Agreement and CITY agrees to cooperate with the assignor in executing any documents that may be reasonably requested by the assignor to confirm such release. 2.4.2 CITY's Fee. DEVELOPER agrees to reimburse CITY for CITY's reasonable costs and attorneys' fees incurred in connection with the processing and documentation of any requested Transfer which requires CITY's approval hereunder, in an amount not to exceed Two Thousand Five Hundred Dollars ($2,500.00) for each Transfer (which amount shall be adjusted by the escalation in the Consumer Price Index from the Effective Date of this Agreement to the date of the request for Transfer). 2.4.3 No Waiver. The acceptance by CITY of any payment due hereunder from any other person shall not be deemed to be a waiver by CITY of any provision of this Agreement or to be a consent to any Transfer. Consent by CITY to one or more Transfers of this Agreement shall not operate as a waiver or estoppel to the future enforcement by CITY of its rights pursuant to the provisions of this Agreement. -12- 2.4.4 Rights of Successors and Assigns. During the Term of this Agreement, any and all permitted successors and assignees of DEVELOPER shall have all of the same rights, benefits, and obligations of DEVELOPER under this Agreement. 3. Development Provisions. 3.1 Vesting. 3.1.1 Project. Subject to all of the terms and conditions of this Agreement, CITY covenants that DEVELOPER has and shall have the vested right to develop the Project on the Property consistent with the Development Plan and the Development Plan Approvals. Except as expressly set forth in this Agreement, including without limitation Section 3.2 hereof, DEVELOPER's vested rights set forth in this Agreement shall apply to and supersede any inconsistent or conflicting CITY action taken after the Effective Date of this Agreement, whether such action is taken by the City Council, a commission, board, agency, official, employee, or agent of CITY, or by CITY's voters by means of their reserved power of initiative. It is understood and agreed that CITY and AGENCY are separate public agencies and that CITY's covenants set forth herein are not intended to be and are not binding on AGENCY. 3.1.2 Limits on Development. The California Supreme Court held in Pardee Construction Company v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties to address certain limits on a city's ability to condition, restrict, or regulate a development allowed a later -adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the timing for the Development, the vested rights afforded by this Agreement, and the scope of CITY's reserved authority described in. Section 3.2 hereof. In this regard, DEVELOPER shall have the vested right to Develop the various components of the Project and at such time as DEVELOPER deems appropriate within the exercise of its subjective business judgment, subject to any restrictions on such matters as may be set forth in the Development Plan and Development Plan Approvals and the express terms and conditions set forth in this Agreement. No future amendment of any CITY law and no future adoption of any CITY law or other action that purport to limit the scope or timing of Development of the Project in a manner inconsistent with the foregoing, whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. In particular, but not by way of limitation of the foregoing, no numerical restriction on the number of residential building permits or on the amount of non-residential development adopted or approved by CITY after the Effective Date of this Agreement, whether by the City Council or by CITY's voters through the initiative or referendum process, shall apply to the Property or the Project during the Term of this Agreement. Notwithstanding the foregoing, nothing in this Section 3.1 shall limit or restrict CITY's reserved authority as described in Section 3.2. 3.1.3 Entitlements, Permits, and Approvals - Cooperation. 3.1.3.1 Processing. CITY agrees that it shall process, pursuant to CITY's regular procedures, complete applications for the Future Development Approvals and, if -13- applicable, complete applications for amendments to this Agreement, to the Development Plan Approvals, and to any of the Future Development Approvals (after the same have been initially approved). 3.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with DEVELOPER, at no cost to CITY, in securing any County, State, and Federal permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development Plan and Development Plan Approvals; provided, that nothing in this Section 3.1.3.2 shall be deemed to require CITY's assumption of any obligations under any said permits or authorizations. 3.1.3.3 Tentative Map Extensions. Pursuant to the provisions of Section 66452.6(a) of the Government Code, any tentative subdivision map or tentative parcel map approved in connection with development of the Property shall remain in full force and effect for the greater of (i) the Term of this Agreement or (ii) the maximum term for such map permitted under Section 66452.6 of the Government Code. CITY agrees that any extension of a map authorized by this Agreement shall occur automatically upon the date any such map would otherwise expire and that DEVELOPER shall not be required to submit an application or any other request to CITY for any such extension to occur or to be valid and enforceable. 3.1.3.4 Vesting Tentative Maps. If any tentative or final subdivision or parcel map approved in connection with Development of the Property is a vesting map under the Subdivision Map Act (Government Code Section 66410 et seq.) and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to DEVELOPER to Develop the Project, then and to that extent the rights and protections afforded to DEVELOPER under the laws and ordinances applicable to vesting maps shall supersede the provisions of this Agreement to the maximum extent permitted by law. Except as set forth immediately above, the provisions of this Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps. 3.1.3.5 Lot Line Adjustments. Adjustments to lot lines required for purposes beneficial to the Project shall be processed on an "administrative approval" basis only; provided, however, that nothing herein shall be deemed to allow an amendment to any specific plan boundary(ies) through an administrative approval. 3.1.3.6 Multiple Final Maps. Subject to Section 5.1 (including all subsections) hereof, CITY agrees that, pursuant to the provisions of Section 66463.1 of the Government Code, DEVELOPER may file concurrently or consecutively one or more final maps relating to the Property and any tentative tract or parcel map; provided, however that each map shall apply to no less than a Block. 3.1.3.7 Intentionally Omitted. 3.1.3.8 Processing of Future Development Approvals. City shall cooperate in good faith with DEVELOPER and process DEVELOPER' s applications for the -14- Future Development Approvals as long as such applications are consistent with the Development Plan, the Development Plan Approvals, and the terms and conditions set forth in this Agreement. At such time that a Future Development Approval is approved, that Future Development Approval shall constitute for all purposes a Development Plan Approval hereunder. 3.2 Reserved Authority. 3.2.1 Future Changes in Development Exactions; Conditions on Future Development Approvals. Notwithstanding any other provision set forth in this Agreement to the contrary, in addition to and without limiting the rights of CITY in Sections 3.2.2, 3.2.3, and 3.2.4, CITY reserves the right after the Effective Date of this Agreement to (i) change its Development Exactions applicable to the Property and the Project and to impose conditions under CEQA on any required Future Development Approvals in order to mitigate the Project's significant impacts on the environment, if any, and (ii) require payment of any fees required by any county, state or federal regulations and/or statutes that are applicable to the Property and the Project ("Non -City Fees"), subject to the following limitations: (i) except for any Non -City Fees, no such future changes in any of CITY's Development Exactions or conditions on any required Future Development Approvals applicable to the Project shall be inconsistent with the Development Plan Approvals or this Agreement, nor shall any such future changes materially jeopardize or impair the rights of DEVELOPER thereunder; (ii) No change in or increase to any Development Exactions applicable to the Property and no conditions placed on any Future Development Approvals shall apply to the Property except to the extent the same shall be applicable to similarly situated properties or projects on a citywide or areawide basis; and (iii) except for any Non -City Fees, CITY shall not require the Project or the Property to pay or contribute to Development Exactions that are not in effect as of the Effective Date with respect to the affected portion of the Property. (iv) notwithstanding anything to the contrary herein, nothing herein shall be deemed to prevent the City from raising any existing City fees generally applicable to similarly situated properties or projects on a citywide or areawide basis; Developer shall be subject to such fees at the time that the fees are triggered; provided, however, that, except as to Non -City Fees, Developer shall not be subject to any new City fees that are not in existence as of the Effective Date of this Agreement. 3.2.2 Construction Codes. This Agreement shall not prevent CITY from applying to the Project new or amended Construction Codes and other new or amended codes relating to fire protection, water quality, wastewater, and other public health and safety measures that are adopted or made applicable to the Property after the Effective Date of this Agreement or local amendments to such codes, as long as the same standards and requirements set forth in any -15- such new or amended codes or local amendments thereto are applicable to all similarly situated developments within the City of Huntington Beach. 3.2.3 State and Federal Laws and Regulations. DEVELOPER shall comply with all applicable state and federal laws and regulations, provided that nothing in this Agreement shall be deemed to limit or restrict the right of DEVELOPER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project. 3.2.4 Suspension of Development in Order to Protect Health and Safety. Nothing in this Agreement shall be construed to be in derogation of CITY's police power to suspend the right of DEVELOPER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safety require a suspension of DEVELOPER's right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, and the term of the suspension shall be limited to the period of time during which the public health or safety concern continues. 3.3 Amendment of Development Agreement. 3.3.1 Initiation of Amendment. Either Party may propose an amendment to this Agreement; provided, however, that no agreements or modifications shall apply to or be binding upon the Property or separate legal parcel(s) within the Property unless the same shall have been set forth in writing and approved and executed both by CITY and the fee owner(s) of the affected parcel(s). 3.3.2 Procedure. The procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. 3.3.3 Consent. Any amendment to this Agreement shall require the written consent of all affected Parties. A Party shall not be deemed to be an affected Party for purposes of this Section 3.3.3 unless the amendment to this Agreement alters, jeopardizes, or impairs the rights or obligations of said Party. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by the duly authorized representatives of all affected Parties. 4. Public Benefits. 4.1 Public Benefits. In consideration for the vesting rights accorded to DEVELOPER under Section 3 hereof, the Project/DEVELOPER shall provide the following extraordinary benefits to the public (the "Public Benefits"): 4.1.1 DEVELOPER shall construct/install the Off -Site Public Improvements prior to occupancy of the first residential unit within the Project; provided, however, that if the first residential unit within the Project is not occupied by the third (3rd) anniversary of the -16- Effective Date of this Agreement, DEVELOPER may defer completion of the Off -Site Public Improvements to a time no later than prior to occupancy of the first residential unit within the Project by filing, no later than three (3) years from the Effective Date of this Agreement ('Deadline"), a performance bond from a California licensed surety with rating not less than A or better by Standard and Poors or B+ or better by A.M. Best Company in the amount of 100% of the estimated construction cost of the Off -Site Public Improvements and a labor and materials bond from a California licensed surety with rating not less than A or better by Standard and Poors or B+ or better by A.M. Best Company in the amount of 50% of the estimated construction costs of the Off -Site Pubic Improvements (collectively, "the Bonds"). The Bonds shall name CITY as obligee. CITY may act on the Bond, in its sole and absolute discretion, if the Off -Site Public Improvements are not completed by the Deadline. The Off -Site Public Improvements shall be completed in accordance with the provisions of Chapter 255 of the City's Zoning Code, as the same may be amended during the Term. 4.1.2 DEVELOPER shall deposit with the Agency, if the AHA is in effect, or the City, if the AHA is not in effect, the amount of TWO HUNDRED AND FIFTY THOUSAND DOLLARS AND NO CENTS ($250,000)("Deposit"), which shall be used to pay for the City's and/or any responsible party's costs of planning, design, permits, and construction of a certain pedestrian path between the Property and the Levitz Parcel (referenced hereinafter as "the Pedestrian. Path") as indicated in the Site Plan in Exhibit "D" attached hereto and made a part hereof. The Deposit shall be due and payable during the Term of this Agreement no later than fifteen (15) days after the latest of the following dates: (i) site control necessary to allow for construction/installation and operation of the Pedestrian Path is obtained; (ii) CITY' s issuance of the first building permit for Development of the Levitz Parcel; and (iii) CITY' s delivery of written notice to DEVELOPER that the conditions to payment of the Deposit in clauses (i)-(ii), inclusive, have been satisfied and payment of the Deposit is due. Developer shall be entitled to reimbursement for any unspent portion of the Deposit if construction of the Pedestrian Path has not commenced prior to the end of the Term. 5. Miscellaneous Obligations of the Parties. 5.1 Park Fee and Future Condominium Sale Issues. Pursuant to Sections 3.1.3.3 and 3.1.3.6 of this Agreement and otherwise applicable provisions of law, DEVELOPER has advised CITY that it intends to develop the residential units within the Project ("Condo Project"), record a final map for a common interest development, initially rent the residential units, and thereafter finish creating a common interest development pursuant to California Law and sell the condominium units to third party purchasers. At this time, the DEVELOPER cannot predict when or if it will ultimately create common interest development and then sell units because of future market conditions. During the Term of this Agreement, DEVELOPER reserves the right in its sole and absolute discretion to determine when, if at all, it will create a common interest development and commence the sale of condominium units. The CITY makes no representation as to the legal effect of such proposed development and/or steps necessary to effectuate said property use and sale. DEVELOPER shall submit the declaration ("CC&Rs") and Condominium Plan to the City for its written approval no less than ninety (90) days prior to recordation of such Plan. The contents of the declaration shall -17- conform to the requirements set forth in California Civil Code section 1353. The CITY's written approval shall not be unreasonably withheld. The CITY's failure to provide a written approval within ninety (90) days shall be deemed as an approval. The CITY's approval rights shall survive termination of this Agreement. The requirement that DEVELOPER submit the declaration and condominium plan to the City for its written approval no less than ninety (90) days prior to recordation of the Plan is also a condition to Tentative Tract Map No. 17261. 5.1.1 Payment of Rental Park Fees Upon Issuance of Building Permits. The Parties agree that, subject to Section 5.1.2, DEVELOPER shall pay to City the Rental Park Fee as a condition to issuance of any building permit for a Block or Blocks of residential dwelling units within the Condo Project which shall be initially rented upon completion of construction ("Rental Units"). The amount of the Rental Park Fee shall be based upon the number of Rental Units that are authorized by the building permit that is being issued. 5.1.2 Payment of For -Sale Project Park Fees Upon Sale of Condo Units. The Parties further agree that if the DEVELOPER creates a common interest development for one or more Blocks of residential units within the Condo Project (referenced hereinafter as "Condo Units") and thereafter commences to sell one or more Condo Units within a Block or Blocks of the Condo Project, prior to DEVELOPER selling any of the Condo Units within said Block or Blocks, and in the event that For -Sale Park Fees are greater than the Rental Park Fees paid by Developer for said Block or Blocks, DEVELOPER shall pay to CITY the difference, if any, between the applicable For -Sale Project Park Fee then in effect at the time of DEVELOPER'S first sale of one or more of the Condo Units and the Rental Project Park Fee previously paid to CITY for the corresponding Rental Units within said Block(s) (collectively, the "Owed Fees"); provided, however, that DEVELOPER shall either (i) pay all Owed Fees, if any, no later than the date that is six (6) months prior to the end of the Term, or (ii) record such documents as are legally required to rescind and terminate the creation of the common interest development for the applicable Block(s) of the Condo Project for which the Owed Fees have not been paid (collectively, the "Map for Rental Units") to reflect the conversion from Condo Units to rental units and, in such event, the Map for Rental Units shall be approved by City and recorded no later than (30) days prior to the end of the Term. Notwithstanding the foregoing, if at the time DEVELOPER pays the Rental Project Park Fee the applicable Rental Project Park Fee and the For -Sale Project Park Fee are the same, it shall be conclusively presumed that DEVELOPER's payment of the Rental Project Park Fee pursuant to Section 5.1.1 constitutes complete satisfaction of DEVELOPER's park fee obligation and no Owed Fees shall be due or payable. In the event that the For -Sale Park Fees are less than the Rental Park Fees paid by Developer at the time of the issuance of a building permit for any Block or Blocks, Developer shall not be entitled to any reimbursement of Rental Park Fees paid by Developer. Developer's payment of Owed Fees shall be determined on a Block basis, regardless of the actual number Condo Units sold within a Block. So, for example, if Developer sells only one unit within a Block, the Owed Fees would be for the entire Block. This section shall survive termination of this agreement. 5.1.3 Security for Owed Fees. To secure payment of the Owed Fees, if any, and any indemnity afforded under Section 5.1.5 hereof, DEVELOPER hereby grants a security -18- interest in and to any payments required to be made to DEVELOPER under the AHA, as set forth in the Assignment of Payments attached hereto as Exhibit "E," which shall be executed concurrently with this Agreement and made a part hereof. 5.1.4 Applicable Conversion Regulations. In the event that DEVELOPER develops the residential units within the Project to condominium standards, records a final map for a common interest development, and initially rents the residential units before creating a common interest development pursuant to California Civil Code Section 1352 (through recordation of CC&Rs and a condominium plan) and then sells the condominium units to third party purchasers, DEVELOPER shall comply with all requirements deemed "Applicable" in Exhibit "F", attached hereto and made a part hereof, including any modifications to such requirements as set forth in Exhibit "F"; provided, however, that if the initial rental and occupancy of the Rental Units within a block does not begin until after creation of the common interest development pursuant to California Civil Code Section 1352 and inclusion of such Rentals Units in said common interest development, then DEVELOPER shall only be required to comply with California Government Code Section 66459. Notwithstanding anything to the contrary herein, in the event that DEVELOPER rents the residential units before recording a final map for a common interest development, and then elects to create a common interest development, DEVELOPER shall comply with all local and state condominium conversion requirements. 5.1.5 Indemnity and Payment of Fees in the Event of Successful Challenge. In addition to any other indemnities provided by DEVELOPER under this Agreement, DEVELOPER shall indemnify CITY for any fees and costs, including without limitation attorneys' fees and court costs, resulting from DEVELOPER's failure to comply with state and/or federal relocation and/or noticing requirements related to the Condo Project. In the event of a successful challenge to this Agreement, based upon deferment of payment of fees granted by CITY to DEVELOPER under Section 5.1 hereof, DEVELOPER shall pay all Owed Fees then in effect upon the recording of the final map for the Condo Project or any portion thereof. 5.1.6 No Waiver. The Parties acknowledge and agree that this paragraph is intended to interpret and apply existing law and does not constitute a waiver or reduction of DEVELOPER's fee obligation to pay park fees. 6. Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys, and employees (the "Indemnified Parties"), DEVELOPER shall indemnify, defend, and hold harmless the Indemnified Parties from and against each and every claim, action, proceeding, cost, fee, legal cost, damage, award or liability of any nature arising from damages or claims for damages which arise from the acts or omissions of DEVELOPER or any of its contractors, subcontractors, agents, employees or other persons acting on DEVELOPER' s behalf in connection with the Project. The duties of DEVELOPER under this Section 6 are solely subject to and conditioned upon an Indemnified Party's written request to -19- DEVELOPER to defend and/or indemnify such Indemnified Party. Without in any way limiting the provisions of this Section 6, the Parties hereto agree that this Section 6 shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as of the Effective Date. DEVELOPER further agrees, as a condition of approval of this Agreement, to indemnify, defend and hold harmless, at DEVELOPER's expense, the Indemnified Parties from and against any claim, action, proceeding, cost, fee, legal cost, damage, award, or liability of any nature arising from claim, action, or proceeding initiated by a third party to attack, review, set aside, void, or annul the approval of this Agreement or any of the Development Plan Approvals or to determine the legality or validity of any provision hereof or obligation contained herein. 7. Relationship of Parties. The contractual relationship between CITY and DEVELOPER is such that DEVELOPER is an independent contractor and not an agent or employee of CITY. CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as making CITY and DEVELOPER joint venturers or partners. 8. Amendment or Cancellation of Agreement. Without limiting Section 10, this Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or modification of this Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 10. 9. Periodic Review of Compliance with Agreement. 9.1 Periodic Review. CITY and DEVELOPER shall review this Agreement at least once every 12-month period from the date this Agreement is executed. CITY shall notify DEVELOPER in writing of the date for review at least thirty (30) days prior thereto. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 9.2 Good Faith Compliance. During each periodic review, DEVELOPER shall be required to demonstrate good faith compliance with the terms of this Agreement. DEVELOPER agrees to furnish such reasonable evidence of good faith compliance as CITY, in the exercise of its reasonable discretion, may require. If requested by DEVELOPER, CITY agrees to provide to DEVELOPER a certificate that DEVELOPER is in compliance with the terms of this Agreement, provided DEVELOPER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. 9.3 Failure to Conduct Annual Review. Provided that such failure is not through any fault of DEVELOPER, the failure of CITY to conduct the annual review shall not be a Default by DEVELOPER, nor shall any such failure alter, suspend, or terminate either of the Parties' -20- other rights and obligations hereunder. Further, DEVELOPER shall not be entitled to any remedy for a failure by CITY to conduct this annual review. 9.4 Initiation of Review by City Council. In addition to the annual review, the City Council may at any time initiate a review of this Agreement by giving written notice to DEVELOPER. Within thirty (30) days following receipt of such notice, DEVELOPER shall submit evidence to the City Council of DEVELOPER good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 9.1 and 9.2 and the Development Agreement Legislation for the annual review. The City Council shall initiate its review pursuant to this Section 9.4 only if it has probable cause to believe CITY's general health or safety is at risk as a result of specific acts or failures to act by DEVELOPER. 9.5 Administration of Agreement. Any final decision by the CITY's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by DEVELOPER to the City Council, provided that any such appeal shall be filed with the City Clerk within ten (10) days DEVELOPER receives written notice that the staff decision is final. The City Council shall render, at a noticed public hearing, its decision to affirm, reverse, or modify the staff decision within thirty (30) days after the appeal is so filed. 10. Events of Default: Remedies and Termination. 10.1 Default. Subject to Section 10.2, failure by any Party to perform any term or provision of this Agreement required to be performed by such Party shall constitute an event of default ("Default"). For purposes of this Agreement, a Party claiming another Party is in Default shall be referred to as the "Complaining Party" and the Party alleged to be in default shall be referred to as the "Party in Default." A Complaining Party shall not exercise any of its remedies as the result of such Default unless it first gives notice to the Party in Default as provided in Section 10.2 and the Party in Default fails to cure such Default within the applicable cure period. The parties acknowledge that the City would not have entered into this Development Agreement had it been exposed to damage claims from Developer for any breach or default thereof. As such, the parties agree that in no event shall Developer be entitled to recover damages against City for breach or default of this Development Agreement. 10.2 Procedure Regarding Defaults. The Complaining Party shall give written notice of Default to the Party in Default, specifying the Default complained of by the Complaining Party. Delay in giving such notice shall not constitute a waiver of any Default nor shall it change the time of Default. 10.3 Right to Cure. The Party in Default shall diligently endeavor to cure, correct, or remedy the matter complained of, provided such cure, correction, or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter). -21- 10.4 Delay Not a Waiver. Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. 10.5 Time to Cure. If a Default occurs, prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such Default. If the Default is reasonably capable of being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the Complaining Party. If the nature of the alleged Default is such that it cannot practicably be cured within such 30 day period, the cure shall be deemed to have occurred within such 30 day period if (i) the cure is commenced at the earliest practicable date following receipt of the notice; (ii) the cure is diligently prosecuted to completion at all times thereafter; (iii) at the earliest practicable date (in no event later than 30 days after the curing Party's receipt of the notice), the curing Party provides written notice to the other Party that the cure cannot practicably be completed within such 30 day period; and (iv) the cure is completed at the earliest practicable date. In no event shall the Complaining Party be precluded from exercising remedies if a Default is not cured within one hundred eighty (180) days after the first notice of Default is given. 10.6 Termination of Agreement. Subject to the foregoing, if a Party in Default fails to cure a Default in accordance with the foregoing, the Complaining Party, at its option, may terminate this Agreement, and/or institute legal proceedings pursuant to this Agreement. 10.7 Default During Annual Review. Without limitation, evidence of a Default may arise in the course of the regularly scheduled annual review described in Section 9 of this Agreement. 10.8 Institution of Legal Actions. Subject to the provisions of Sections 10.1 and 10.2 relating to notices of Default and times to cure and the provisions of Sections 10.9 and 10.10 limiting certain remedies of the Party in Default, in addition to any other rights or remedies it may have, either Party to this Agreement may institute legal action to cure, correct, or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with this Agreement except that DEVELOPER shall have no damages remedies against CITY. 10.9 Limitation on Damages Remedy Against Developer. Notwithstanding any other provision set forth in this Agreement to the contrary, in no event shall CITY be entitled to recover as an element of its damages for a DEVELOPER Default any amount to compensate it for "lost" anticipated tax revenues of any kind (whether property taxes, property tax increment revenues, sales taxes, business license fees, or otherwise) resulting from DEVELOPER' s delay in completion of the Project or its decision not to proceed to Develop or all a portion of the Proj ect. -22- 10.10 No Damages Relief Against City. Developer acknowledges that the City would not have entered into this Agreement if the City were to be liable in damages under or with respect to this Agreement or the application thereof. Consequently, and except for the payment of attorneys' fees and other litigation expenses, in accordance with Section 13, the City shall not be liable in damages to Developer or to any successor in interest to Developer, and Developer covenants on behalf of itself and its successors in interest not to sue for or claim any damages. (i) for any non -monetary Default of, or which arises out of, this Agreement; (ii) for the taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; or (iii) arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 10.11 Limitation on Cross -Defaults. In the event the legal parcels comprising the Property are from time to time owned by more than one person or legal entity (each a "DEVELOPER" hereunder), each DEVELOPER shall be jointly and severally liable to CITY for completion of the obligations set forth under Sections 4.1.1, 4.1.2 and 5.1 (including all subsections) hereof. Otherwise, however, a DEVELOPER shall be obligated to CITY to perform only those obligations set forth in this Agreement that pertain to the separate legal parcel(s) owned by that particular DEVELOPER and in the event another DEVELOPER is in Default hereunder with respect to another separate legal parcel(s) comprising another part of the Property CITY's rights and remedies hereunder (including without limitation the remedy to terminate this Agreement and/or seek legal or equitable relief) shall be limited to the DEVELOPER and the portion of the Property as to which such Default exists. 10.12 Estoppel Certificates. Either Party or the holder or prospective holder of a mortgage or deed of trust secured by an interest in any portion of the Property {a "holder") may at any time during the Term of this Agreement deliver written notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating to the extent such is the case: (i) the Agreement is in full force and effect and is a binding obligation of the Parties; (ii) this Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments; (iii) no Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist, the nature thereof and the actions required to be taken by the non- performing Party to cure the Default or prevent the same from occurring; and -23- (iv) any other matter affecting the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may reasonably inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request, provided that such request is consistent with this Section 10.11. The City Manager or any person designated by the City Manager may sign Estoppel Certificates on behalf of CITY. The managing member, managing general partner, President, or other authorized representative of DEVELOPER may sign on behalf of any DEVELOPER. An Estoppel Certificate may be relied on by the holder and by Development Transferees. The requesting Party or party benefitting from the mortgage or deed of trust shall reimburse the other Party for all reasonable and direct costs and fees incurred by such Party with respect to the preparation and delivery of the Estoppel Certificate. 11. Waivers, Delays, and Extensions of Performance Deadlines. 11.1 No Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party hereto, shall not constitute a waiver of such Party's right to demand strict compliance by the other Party in the future for the same, similar, or any different Default. 11.2 Third Parties. The Parties' respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 11.3. 11.3 Force Majeure. Notwithstanding any other provision set forth in this Agreement to the contrary, DEVELOPER shall not be deemed to be in Default to the extent that DEVELOPER's failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond DEVELOPER's control, unreasonable delays in the issuance of any of the Future Development Approvals or other governmental permits or approvals required for the Project, or third -party litigation, or any other causes that are without the fault and beyond the reasonable control of DEVELOPER. 11.4 Notice of Delay. DEVELOPER shall give notice to CITY of any delay which DEVELOPER believes to have occurred as a result of the occurrence of any of the events described in Section 11.3. In no event, however, shall notice of a delay of any length be given later than thirty days after the end of the delay or thirty days before the end of the Term, whichever comes first. 12. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent either by certified mail, postage prepaid, return receipt requested, or -24- by overnight delivery by a reputable independent delivery service (such as Federal Express) that provides a receipt documenting the time and circumstances of delivery. Notices required to be given to CITY shall be addressed as follows: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: City Manager and City Attorney with a copy to: Kane, Ballmer & Berkman 515 S. Figueroa Street, Suite 1850 Los Angeles, CA 90071 Attention: Susan Cola Notices required to be given to DEVELOPER shall be addressed as follows: Bella Terra Villas LLC c/o UDR Inc. 1745 Shea Center Drive, Suite 200 Highlands Ranch, CO 80129 Attention: Warren Troupe, Senior Executive Vice President Fax No.: (720) 283-2451 Bella Terra Villas LLC c/o UDR Inc. 1745 Shea Center Drive, Suite 200 Highlands Ranch, CO 80129 Attention: Matthew Akin, Senior Vice President Fax No.: (720) 283-2454 Morrison & Foerster LLP 555 West Fifth Street, Suite 3500 Los Angeles, CA 90013 Attention: Thomas R. Fileti, Esq. Fax No.: (213) 892-5454 -25- with a copy to: Rutan & Tucker, LLP 611 Anton Blvd., 14th Floor Costa Mesa, CA 92626 Attention: Jeffrey M. Oderman, Esq. Any notice given as required herein shall be deemed given only if in writing and delivered or sent in accordance with the foregoing procedures (with mailed delivery confirmed by written receipt). A Party may change its address for notices by giving notice in writing to the other Party as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by DEVELOPER to the holder of any mortgage or deed of trust secured by all or any interest in the Property which (i) delivers a written notice to CITY requesting such notices and (ii) provides CITY with such holder's address(es) for notice purposes. 13. Intentionally Omitted. 14. Recordin4. This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement limit or restrict the validity or enforceability of this Agreement. 15. Effect of Agreement on Title. 15.1 Effect on Title. The Parties agree that this Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 15.2 Encumbrance Permitted. The Parties hereto agree that this Agreement shall not prevent or limit the right of DEVELOPER, at its sole discretion, to encumber the Property or any portion thereof or any improvement thereon by a DEVELOPER Deed of Trust; provided, however, that any such DEVELOPER Deed of Trust shall be subordinate to this Agreement, and provided further that if any portion of the Property to be dedicated or transferred to CITY pursuant to this Agreement shall be subject to any DEVELOPER Deed of Trust, such DEVELOPER Deed of Trust shall be released or reconveyed prior to the dedication or transfer. 15.3 Rights of Lenders. The holder of any DEVELOPER Deed of Trust shall be entitled to the following rights and privileges: (a) Any holder of a DEVELOPER Deed of Trust which has submitted a request in writing to CITY in the manner specified herein for giving notices shall be entitled to -26- receive written notification from CITY of any Default of DEVELOPER in the performance of DEVELOPER' s obligations under this Agreement. (b) If CITY timely receives a request from the holder of a DEVELOPER Deed of Trust requesting a copy of any notice of Default given to DEVELOPER under the term of this Agreement, CITY shall provide a copy of that notice to the holder within ten (10) days of sending the notice of default to DEVELOPER. The holder shall have the right, but not the obligation, to cure the Default during the remaining cure period allowed DEVELOPER under this Agreement. If the Default is of a type that can only be remedied by the holder of the DEVELOPER Deed of Trust after obtaining possession of the Property (or applicable portion thereof as to which the holder's security interest relates) and if such holder commences the process to obtain possession within ninety (90) days after its receipt of the notice of Default, proceeds with commercially reasonable diligence to obtain possession, and cures the Default within the same period of time after obtaining possession that DEVELOPER would have had to complete such cure after its receipt of CITY's initial notice of Default to DEVELOPER, then the holder's cure of DEVELOPER' s Default shall be deemed to constitute a timely cure hereunder. (c) The holder of any DEVELOPER Deed of Trust who comes into possession of the Property or any part thereof pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property or part thereof subject to the terms of this Agreement; provided in no event shall any such holder or its successors or assigns be entitled to a building permit or occupancy certificate until all fees and other monetary obligations due under this Agreement have been paid to CITY and all otherwise applicable conditions to such permit or certificate have been satisfied. 16. Severability of Terms. If any term, provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 17. Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Effective Date. -27- 18. Rules of Construction and Miscellaneous Terms. 18.1 Interpretation and Governing. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California, with regard to conflict of laws rules. The Parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of CITY's police powers and except as expressly provided for herein this Agreement shall not be deemed to prevent the future exercise by CITY of its lawful governmental powers over the Property. 18.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 18.3 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. 18.4 Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 18.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 18.6 Entire Agreement. This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. 19. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive benefit of CITY and DEVELOPER (including without limitation authorized assignees or transferees of BTDJM Phase II Associates LLC) and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the holders of one or more DEVELOPER Deeds of Trust in all or a portion of the Property. 20. Relationship to AHA. DEVELOPER acknowledges and agrees that (i) nothing in this Agreement is intended or shall be interpreted to supersede, limit, modify, reduce or restrict DEVELOPER's obligations set forth in the AHA and any related housing agreements entered into by and between DEVELOPER and AGENCY with respect to the affordable housing units referred to therein. -28- 21. Cooperation in Event of Legal Challenge. In the event of any legal action instituted by a third party (not a Party to this Agreement) or any governmental entity or official (other than CITY or an official of CITY) challenging the validity of any provision of this Agreement, the Parties hereby agree to cooperate in defending said action; provided, however, DEVELOPER shall indemnify, defend (by counsel reasonably acceptable to CITY), and hold harmless CITY from all litigation expenses, including reasonable attorneys' fees and costs, arising out of any legal action instituted by such third party (not a Party to this Agreement), or other governmental entity or official (other than CITY or an official of CITY) challenging any of the Development Plan Approvals. CITY shall promptly notify DEVELOPER of any such action and CITY shall cooperate in the defense thereof. [Signatures on next page] _ -29- IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated: , 2012 ATTEST: City Clerk APPROVED AS TO FORM: Cit Attorney "CITY" CITY OF HUNTINGTON BEACH, a municipal corporation By: Name: Title: Mayor "DEVELOPER" BELLA TERRA VILLAS LLC, a Delaware limited liability company By: DCO Realty, Inc., a Delaware corporation, its Sole Member Dated: , 2012 By: Name: Title: -30- STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On , before me, 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] STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On , before me, Public, personally appeared Notary 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 ill A I LEGAL DESCRIPTION PARCEL 3 In the City of Huntington Beach, County of Orange, State of California, being Parcel 3 of Lot Line Adjustment No. 10-006, recorded as Instrument No. of Official Records, in the office of the County Recorder of said county. 4RoryS. Willi s, L. - No. 6654 Date: 5 Rory S. Williams No. 6654 �F CA��F�� May 20, 2011 WO No. 3337-1X Page 1 of 2 H&A Legal No. 7711 By: R. Williams Checked By. L. Gaston HER —AVRNU 'j, PARCEL 3 Sketch to Accompany Legal Description i7. Lu :D 7 L6� 80 1 Cn INDICATES PARCELS PER PM 2003-163, P.M.B. 358/1-9 MM HUNSAKER & ASSOCIATES OI R V I N E , I N C . PARCEL 3 CR, PLANNING , D4GINEEKING - SURVMNG Three Hughes - IrArve, CA 9'.. - PK (90583-1011) - Fk' (949) n3-0739 CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA DAM c" L. GASTON SCALE 1"= W.O. 3337-1X 71LUAMS ., S 400' ILF- 1:\BELLA TERRA\LD\771 1\SHTOI.dwg+H&A LEGAL No. 7711 SHEET 2 OF 2i i 1 EDINGER A VENUE I+ ,1 LEGAL DESCRIPTION: PARCEL 1 OF PARCEL MAP 86-200, PMB 265140-45, RECORDS OF ORANGE COUNTY,. CITY OF HUNTINGTON BEACH, ORANGE COUTYICALIFORNIA *PROPERTY LINE SHOWN REFLECTS THE SUBDIVISION BOUNDARY, THE SITE IS ALSO SUBJECT TO A ZONE BOUNDARY. T14F I/// / A rF A T BELLA TERRA HUNTING TON BEACH, CA SITE SUMMARY UNIT MIX PLAN TYPE S.F. # OF UNITS 81 STUDIO 509 12 S2 STUDIO 580 32 S3 STUDIO 592 10 S4 STUDIO 643 8 Al 1BR/1BA 702 46 A2 18R/1BA 733 32 A3 1BRIIBA 782 38 A4 1BR/1BA 782 53 A5 1BR/1BA 799 23 A6 1BR/1BA 822 5 B1 2BR/26A 1.012 32 B2 2BR12BA 1,127 12 B3 2BR12BA 1,146 91 Ct 3BR12BA 1,365 8 C2 3BR12BA 1,410 22 Al 1BRIIBAEXTENDED 762 6 A3+L 1BR+LOFT/1BA 4,187 10 A5M+D 1BR+DENIIBA 1022avg. 12 B3+L 2BR+LOFTIIBA 1,365 12 133M 2BR12BA EXTENDED 1251 3 TOTAL 467 RETAIL SUMMARY BLDG. A 17,600 SF Retell BLDG B 6,000 SF Retell BLDG C 6,000 SF Retell PARKING SUMMARY STUDI011BR (287) 1 STALL/UNIT 267 2BR (150) 1.6 STALLSIUNIT 225 3BR (30) 2.0 STALLSIUNIT 60 GUEST 0.21UNIT 94 666 COMMON OPEN SPACE REQUIRED: 90 SFIUNIT X 467 UNITS = 42,030 SF PROVIDED: 43,052 SF COURTYARD SPACE +6 305 SF 15 % OF OVERALL REQUIREMENT 49,35E SF PRIVATE OPEN SPACE REQUIRED: 60 SFIUNIT PROVIDED: MIN. 60SFIUNIT (SEE UNIT PLANS) ..........-..................................... 0' 40' 80' 120' CONCEPTUAL SITE PLAN - A 1.1 NEV.Of 1110:1 8 [iliYliCS19.MHN'C — R�ItSNY.T N, ENC. 822 CAGUNA ST., SANTA BARBARA, CA 93101 ARCHITECTS ORANGE 144 NORTH ORANGE Sr., ORANGE. CAUFORNIA 02866 (714) 639-9860 w. =r EXHIBIT C Exhibit 'C' R&R North Half 70' Wide ROW R� .11' Wide Pavement "EDINGER AVENUE , LEGAL DESCRIPTION: PARCEL 1 DF PARCEL MAP 86.200, PMB 25514045. RECORDS OF ORANGE COUNTY. CITY OF HUNTINGTON BEACH, ORANGE COUTY/CALIFORNIA 'PROPERTY LINE SHOWN REFLECTS THE SUBDIVISION BOUNDARY, THE SITE IS ALSO SUBJECT TO A ZONE BOUNDARY, THE (VILLA GE A T BELLA TERRA HUNTING TON BEACH, CA SITE SUMMARY UNIT MIX PLAN TYPE S.F. A OF UNITS St STUDIO 509 12 S2 STUDIO 500 32 S3 STUDIO 592 10 S4 STUDIO 643 6 Al IBR/1BA 702 46 A2 1BR/1 SA 733 32 A3 1BR11BA 702 38 A4 16R/I BA 7B2 53 A5 1BR118A 799 23 A6 113R/1 SA 822 5 81 26RI2BA 1,012 32 B2 2BR/26A 1,127 12 83 2BR/29A 1,146 91 C1 38R/2BA 1,365 B C2 38R728A 1,410 22 Al 1 8R118A EXTENDED 702 6 A3+L 1BR+LOFT/IBA 1,107 10 A5M+D 'BR+DEN/1BA 1022 ev9• 12 B3+L 2BR+LOFT/IBA 1,365 12 B3M 2BRl2BA EXTENDED 1251 3 TOTAL 467 RETAIL SUMMARY BLDG. A 17,500 SF Retail BLDG B 6,000 SF Retail BLDG C 6,000 SF Re106 PARKING SUMMARY STUDIO/IBR (207) 1 STALL/UNIT 207 26R (150) 1.5 STALLSIUNIT 225 3BR (30) 2.0 STALLSIUNIT 60 GUEST 0.2/UNIT 94 666 COMMON OPEN SPACE REQUIRED: 90 SFIUNIT X 467 UNITS - 42,030 SF PROVIDED: 43,052 Sr COURTYARD SPACE +6.305 SF 15% OF OVERALL REQUIREMENT 49,356 SF PRIVATE OPEN SPACE REQUIRED: 60 SFIUNIT PROVIDED: MIN. 60SF/UNIT (SEE UNIT PLANS) 0' 40r 1 "=40r 0" CONCEPTUAL SITE PLAN - A 1.1 �� \ Mr0.t�1 Oltl.fiir 9221AGUNA Sr., SANTA BAROARA.t GA"r93101 ARCHITECTS ORANGE 144 NORTN ORANGE Si., ORANGE, GAIIFGRN/A $2066 (7141 6394060 M mm BARES -RE SHEET 2 OF 2 4 i OFFICIAL BUSINESS Document entitled to free recording per Government Code Section 6103 Recording Requested By and When Recorded Mail to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Development Director Space above this line for Recorder's use only ASSIGNMENT OF PAYMENTS by BELLA TERRA VILLAS LLC, a Delaware limited liability company ("DEVELOPER") as Assignor, to CITY OF HUNTINGTON BEACH a municipal corporation, organized and existing under the p iP , laws of the State of California ("CITY") as Assignee Assignment of Payments This Assignment of Payments is made as of the day of , 2012, by BELLA TERRA VILLAS LLC, a Delaware limited liability company ("DEVELOPER" as "Assignor'), whose address is 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO 80129, to CITY OF HUNTINGTON BEACH, a municipal corporation, organized and existing under the laws of the State of California ("CITY" as "Assignee"), whose address is 2000 Main Street, Huntington Beach, CA 92648. Article I Definitions As used in this Assignment, the terms defined in the Preamble hereto shall have the respective meanings specified therein, and the following additional terms shall have the meanings specified: "Agency" means the City of Huntington Beach Redevelopment Agency, a public body, corporate and politic. "Assignee" means Assignee and its successors and assigns. "Assignment" means this Assignment of Payments, as it may be modified from time to time in accordance with the terms hereof. "City" means the City of Huntington Beach. "AHA" means that certain Affordable Housing Agreement, dated October 4, 2010, by and between BTDJM PHASE II ASSOCIATES, LLC and AGENCY, which AHA was assigned to and assumed by DEVELOPER pursuant to that certain Assignment and Assumption Agreement dated as of October 21, 2011, entered into by and between DEVELOPER and BTDJM and consented to by AGENCY. AHA as used herein shall mean, refer to and include the AHA, as well as any riders, exhibits, addenda, implementation agreements, amendments and attachments thereto (which are hereby incorporated herein by this reference) or other documents expressly incorporated by reference in the AHA. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such term in the AHA. "Default" means an event or circumstance which, with the giving of Notice or lapse of time, or both, would constitute an Event of Default under the provisions of this Assignment. "Development Agreement" means that certain DEVELOPMENT AGREEMENT (VILLAGE AT BELLA TERRA PROJECT) entered into by and between the Assignee and Assignor, and executed concurrently herewith, pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. 2 "Expenses" means all fees, charges, costs and expenses of any nature whatsoever incurred after an Event of Default in exercising or enforcing any rights, powers and remedies provided in this Assignment, including attorneys' fees and court costs. "Land" means the real property described in Exhibit A attached hereto and made a part hereof. "Laws" means all federal, state and local laws, statutes, rules, ordinances, regulations, codes, licenses, authorizations, decisions, injunctions, interpretations, orders or decrees of any court or other governmental authority having jurisdiction as may be in effect from time to time. "Lien" means any mortgage, deed of trust, pledge, security interest, assignment, judgment, lien or charge of any kind, including any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code of any jurisdiction. "Notice" means a notice, request, consent, demand or other communication given in accordance with the provisions of Section 12 of the Development Agreement. "Obligations" means all present and future debts, obligations and liabilities of Assignor to the Assignee arising pursuant to, and/or on account of, Section 5.1 of the Development Agreement. "Payments" means any payments owed by Agency to Developer under Attachment No. 7 (Schedule of Feasibility Gap Payments) of the AHA. "Person" means an individual, a corporation, a partnership, a joint venture, a limited liability company, a trust, an unincorporated association, any governmental authority or any other entity. "State" means the State of California. Article II Granting Clauses; Condition of Grant Section 2.1 Absolute Assignment of Payments. In order to secure the prompt payment and performance of the Obligations, Assignor absolutely and unconditionally assigns the Payments to Assignee. This assignment is, and is intended to be, an unconditional, absolute and present assignment from Assignor to Assignee of all of Assignor's right, title and interest in and to the Payments. So long as no Event of Default shall exist, however, and so long as Assignor is not in default in the performance of any Obligations, Assignor shall have a license (which license shall terminate automatically upon the occurrence of an Event of Default or a default by Assignor under the Development Agreement) to collect, but not prior to accrual, Payments. 3 Section 2.2 Termination of Assignment. Upon satisfaction of all Obligations, the absolute assignments set forth in Section 2.1 above shall automatically terminate and become null and void and Assignee shall execute such documents as Assignor may reasonably require to evidence such termination. Article III Representations and Warranties Assignor hereby represents and warrants to Assignee that it has all requisite power and authority to execute and deliver this Assignment and perform its obligations hereunder and that this Assignment has been duly authorized, executed and delivered. Article IV Affirmative Covenants Section 4.1 Assignment of Payments. Assignor shall not enter into any assignment or pledge of Payments with any Persons without the prior written consent of Assignee. Article V Events of Default The occurrence or happening, from time to time, of any one or more of the events described in Section 10 of the Development Agreement shall constitute an Event of Default hereunder. Article VI Rights and Remedies Upon the happening of any Event of Default, Assignee shall have the right, in addition to any other rights or remedies available to Assignee under applicable Laws, to exercise any one or more of the following rights, powers or remedies: Section 6.1 Collection of Payments. Upon the City's determination that an occurrence of an Event of Default has taken place or likely thereto, the license granted to Assignor to collect the Payments shall be automatically and immediately revoked, without further notice to or demand upon Assignor. Assignor hereby irrevocably authorizes and directs the Agency to pay all Payments to Assignee instead of to Assignor, upon receipt of written notice from Assignee, without the necessity of any inquiry of Assignor and without the necessity of determining the actual existence or non-existence of an Event of Default. Assignor hereby appoints Assignee as Assignor's attorney -in -fact with full power of substitution, which appointment shall take effect upon the City's determination of an occurrence of an Event of Default and is coupled with an interest and is irrevocable prior to the full and final payment and performance of the Obligations, in Assignor's name or in Assignee's name: (a) to receive electronic transfers, and/or endorse all checks and other instruments 11 received in payment of the Payments and to deposit the same in any account selected by Assignee; (b) to give receipts and releases in relation thereto; and (c) to institute, prosecute and/or settle actions for the recovery of the Payments from Agency. Any Payments received shall be applied first to pay all Expenses and next in reduction of the other Obligations. Assignor shall pay, on demand, to Assignee, the amount of any deficiency between (i) the Payments received by Assignee, and (ii) all Expenses incurred. Section 6.2 Application of Proceeds. Unless otherwise provided by applicable Laws, all proceeds received by Assignee from the exercise of any of its rights and remedies hereunder shall be applied first to pay all Expenses and next in reduction of the other Obligations, in such manner and order as Assignee may elect. Article VII Miscellaneous Section 7.1 Rights Powers and Remedies Cumulative. Each right, power and remedy of Assignee as provided for in this Assignment, or in the Development Agreement shall be cumulative and concurrent, and the exercise or beginning of the exercise by Assignee of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by Assignee of any or all such other rights, powers or remedies. Section 7.2 No Waiver by Assignee. No course of dealing or conduct by or among Assignee and Assignor and/or the Agency shall be effective to amend, modify or change any provisions of this Assignment, AHA or the Development Agreement, or amend, modify, or change any rights or obligations of the respective parties thereunder. No failure or delay by Assignee or Agency to insist upon the strict performance of any term, covenant or agreement of this Assignment, AHA or the Development Agreement, or to exercise any right, power or remedy consequent upon a breach thereof, shall constitute a waiver of any such term, covenant or agreement or of any such breach, or preclude Assignee from exercising any such right, power or remedy at any later time or times. By accepting payment after the due date of any of the Obligations, Assignee shall not be deemed to waive the right either to require prompt payment when due of all other Obligations, or to declare an Event of Default for failure to make prompt payment of any such other Obligations. Regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate Lien on the Property, Assignee may release any Person at any time liable for any of the Obligations or any part of the security for the Obligations and may extend the time of payment or otherwise modify the terms of this Assignment, without in any way impairing or affecting the Lien created hereby or the priority of this Assignment over any subordinate Lien. Assignee may resort to the security or collateral described in this Assignment in such order and manner as Assignee may elect in its sole discretion. 5 Section 7.3 Successors and Assi ns. All of the grants, covenants, terms, provisions and conditions of this Assignment shall run with the Land and shall apply to and bind the successors and assigns of Assignor (including any permitted subsequent owner of the Property), and inure to the benefit of Assignee, its successors and assigns. Section 7.4 Amendments. This Assignment may not be modified or amended except by an agreement in writing, signed by the party against whom enforcement of the change is sought. Section 7.5 Severability. In the event any one or more of the provisions of this Assignment shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part or in any other respect, or in the event the provisions of the AHA or Development Agreement operates or would prospectively operate to invalidate this Assignment, then and in either of those events, at the option of Assignee, such provision or provisions only shall be deemed null and void and shall not affect the validity of the remaining Obligations, and the remaining provisions of this Assignment shall remain operative and in full force and effect and shall in no way be affected, prejudiced or disturbed thereby. Section 7.6 Notices. All Notices required or which any party desires to give hereunder shall be in writing and shall be given in the manner, and to the addresses specified in Section 12 of the Development Agreement. Section 7.7 Governing Law. This Assignment shall be construed, governed and enforced in accordance with the Laws in effect from time to time in the State (without regard to its conflicts of law principles). IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed as of the day and year first written above. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. "ASSIGNEE" CITY OF HUNTINGTON BEACH, a municipal corporation Dated: , 2012 By: Name: Title: Mayor rel ATTEST: City Clerk APPROVED AS TO FORM: Ci Attorney BELLA TERRA VILLAS LLC, a Delaware limited liability company By: DCO Realty, Inc., a Delaware corporation, its Sole Member Dated: , 2012 By: Name: Title: 7 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On , before me, 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] STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On Public, personally appeared before me, Notary 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] LEGAL DESCRIPTION PARCEL 3 In the City of Huntington Beach, County of Orange, State of California, being Parcel 3 of Lot Line Adjustment No. 10-006, recorded as Instrument No. of Official Records, in the office of the County Recorder of said county. RoryS! Willi s, L. . No. 6654 Date: C) Rory S. Williams No. 6654 May 20, 2011 WO No. 3337-1X Page 1 of 2 H&A Legal No. 7711 By. R. Williams Checked By. L. Gaston PARCEL 3 Sketch. to Accompany Legal Description INDICATES PARCELS PER PM 2003-163, P.M.B. 358/1-9 HUNSAKER & ASSOCIATES PARCEL 3 I R V I N E r I N C ■ SURVEYING PLANNING a ENGINEERING CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE. STATE OF CAitI=Oi?N[A 'three Hughes • [rvirte. G 92b i8 PFt (949) 563'l010 • FY.X (949) 5834)n9 `'E` 05-20-11 0 — e';�R. WILLIAMS e a L. GASTON SCALE 1°= 400' W.O. 3337-1X f:\BELLA TERRA\LD\7711\SHT01.dwg FICA LEGAL No. 7711 SHEET 2 OF 2 EXHIBIT F EXHIBIT "F" HB RESIDENTIAL CONDOMINIUM CONVERSION STANDARDS A summary of all the requirements listed under Chapter 235 Residential Condominium Conversion standards is listed below with a staff recommendation for inclusion into the proposed development agreement. Also, a list of the Subdivision Map Act sections is included at the end. ISSUE AREA HBZSO REQUIREMENT APPLICABILITY COMMENTS SECTION Affordable 25,04 Conversion of louver or moderate rental Not Applicable housing developed with.fed.eral, state, or local assistance:.is prohibited Physical elements report 235.06.A.1- Reports describing all physical elements of Not Applicable 5 the project and recommended improvements. CC&Rs 235.06 B. Rules to be applied on behalf of any '` Applicable owners. Conveyance of units 235.06 B. Applicable Assignment of parking 235.06 B. „ Applicable Assignment of story a >; 235.06 B. " . Applicable Common maintenance 235.06 B. ".....:. " . :. Applicable .... . .. Fees assessment 235 06 B. " „ Applicable _.. .._, .._.. Maintenance of utility . 235 06 B., ........ __ .. .... " Applicable lines and services Conversion plan 235.06 C. Specific info regarding demographic and _.. _. Not Applicable financial characteristics of the project. - ... ...... Date of construction 235 06 C.1 Not Applicable Description of major 235.06 C.1. Not Applicable repair Use of:project Ownership of land Sq ft of each unit 235.06 C. ::: Not Applicable ; 235.06 C.3, Not Applicable 2.35:06 C.4. Not Applicable Rental rate history 235.06 C.5. Not A Iicable _p_p ... Monthly vacancy rate 235,06 C.6. " Not Applicable List of tenants, etc. 235.06 C.7. Complete list of number of tenants and Applicable type of tenant households to be submitted. Tenants over 62 235.06 „ „ A pplicable C.7,a. Family size 235.06 Applicable C.7.b. Disabled persons 235.06 Applicable C.7.c: Length of residence 235.06 " It Applicable C.7,d. Low and moderate and if .. 235.06 " Applicable receiving federal or state C.7.ei subsidies Proposed price/unit 235.06 C.8. Financial information to be provided. Applicable Proposed HQA budget 235.06 C.9. Applicable Type of financing and 235.06 Applicable incentives C.10. Method to assure 235.06 Applicable affordability C.11. Signed notices from each 235.06 Certified letter Applicable tenant of notice to C.12. convert Vacancy. rate analysis 12 235.06 D, Specific info regarding Citywide vacancy Not Applicable months, citywide rates.. Acceptance of reports by 235.06 E. Not Applicable PC Min. construction 235A8 Construction standards Not , .: Applicable: A Proect will meet min, j standards upon standards construction Comply with health and 235.08 A. .: ItIt ;. Not Applicable It it safety violations 2 Draft stops in attics 235.0$ A.1. Not Applicable Electrical branch circuits 235.08 A.2. Not Applicable Smoke detectors 235.08 A.3. Not Applicable GFCI protection 235.08 A. Not Applicable.., Comply with Zoning 23.508 B. Not Applicable Parking 235.08 B. Not Applicable Landscaping 235.08 B::.. Not Applicable Refurbish and Restore 235.08 C. Not Applicable Affordable Housing. 235 08 D: Increases affordability to 25%. (from 15% Not Applicable now)for low and mod,. -With min. 20% to low for GO years: Max ales price shall not exceed 2.5 x median income; Max rent shall keep units w/in low -moderate. Tenant Benefits 235.10 Not Applicable Tenants will sign a disclosure statement when they rent Notices of Intent 235.10 A. Pursuant to government code Not Applicab{e Public Hearings 235.10 13.1. 235.10 B:2. Notify of hearing Notify within 1i7 days of final map Not Applicable Not Applicable Covered under state law Final Map 235.10 C. approval: plus. notify of.DRE application First right of refusal to purchase the Applicable as modified Applicable only for 1" right Tenant Discounts occupied unit at a discount of price of refusal for 90 days; offered to general public tenant discount will not apply Vacation of Units 23,5,10 D. At least 120 days to vacate or until Applicable as modified Increase to 180 days to expiration oftenant's lease; tenant may vacate to match Gov't terminate lease with 30 days notice Code Section 66427.1 F. and specify that time period is triggered upon recordation of Final Map No Increase in Rent 235.10 E. No increase 2 months prior or two years Applicable as modified No rent shall increase after filing application within 180 days time to vacate as stipulated in 235.10 D. above 3 ----------------------------------------------------- ---------------- Lifetime Lease All Non -Purchasing tenants over 62 years Not Applicable No lifetime lease required or disabled shall receive lifetime lease; but no rent increases as with no rent increase for 2 years after described above filing Moving Expenses 235.10 F. $$ = to 3x monthly rent for relocation if Not Applicable Tenants Will sign a. relocating after City approval ref disclosure statement when they rent conversion Relocation Assistance 235.10 G. Provide assistance for 4 months after TTM Not Applicable approval. ------ ------------------------ Non-purchasing tenants receive 12 Applicable as modified Min. 12 month relocation months relocation time if 1) low or mod time shall be provided income, or 2) minor children in school upon recordation of Final Map Discrimination 235.10 H. .No, discrimination based on race, color, Applicable creed, national origin, sex, or age in Effect on low -mod income 235.12 CC&Rs PC to consider health and safety, whether Not applicable - Affordable housing d units serves low or mod income, need restrictions will continue and demand for increases in lower cost to apply to for sale units home ownership Bonus for low -mod 235.14 City to consider density bonds or other Not Applicable income housing incentives when applicant agrees to provide 3.3%.as low or mod income units Findings 235.16 PC findings for approval Not Applicable Not Applicable Compliance with 235.16 A. SMA and other code requirements met Subdivision Map,Act, '. General -Plan, and zoning will be required upon issuance of building permit n 235.16 B. Consistent with General Plan and specific Not Applicable plan 235.16 C: .. Conversion will. confonm to code Not Applicable r` 235.16 D. High standard of appearance, quality, Not Applicable " safety 235.16 E. Will not displace.significant percentage of:,Not Applicable Tenants will sign a low -mod, disabled, or senior: tenants; disclosure statement ------ ------------------- ----------------- when they rent: Will not delete significant number of low- Not Applicable Affordable housing Hind, rental units restrictions will apply to for sale units 235.16 F. Units have been rentals for at least 5 Not Applicable years 235.16 G. Applicant has not'engaged in coercive, Not Applicable retaliatory action regarding tenants 235.16 H. Project is not located in coastal zone or if Not Applicable is in CZ then it is not a visitor serving use (hotel) The following Subdivision Map Act sections shall be applicable, modified slightly since TTM has already been approved, and included in the DA: ISSUE AREA SMA REQUIREMENT STAFF COMMENTS 5 B) 10.days written notice of application to DRE that tenant's right to purchase begins with issuance of final DRE report. C) Written notification of final'' ;Public report from DRE within 5 days of: DRE action. D) :Written notification within10 days after FM approval. E) :180 days notice of intent to convert prior to termination of " tenancy F) :Exclusive right to purchase for 60. days Also; if rental agreement in different language then notices shall be in same language. Notification; Moving 66452.17 Min. 60 days prior to filing TTM give Applicable with TTM already filed so Expenses; First Month's notice to each person applying for modifications tenants will sign a Rent rental of unit of plans to convert. disclosure statement Failure to give notice requires when they rent. subdivider to pay each prospective Compensation only tenant: required if owner fails to 1) Actual moving expenses up to give notice. $1,100 2) 1" month rent on new unit up to $1,100 City can require greater compensation by ordinance or charter. ... Tenants Notification ` 66452.18. Min. 60 days prior to filing TTM give Not applicable will sign notice to existing tenants of plans to disclosure statement convert. when they rent X Notification of intent to 66452.19 Written notice of intent to convert 180 Applicable convert days prior to termination of tenancy and include: Date of TTM approval, 180 days to vacate. Notification after DRE 66452.20 _:. . Written notice required within 5 days Applicable report and Right to of.DRE report giving tenants 90 days to Purchase purchase. Notification after FM and 66459 If FM approved and owner rents out Applicable rental; Assistance units, prior to sale, shall give notice: 1.) Required if Fail to Notify unit is approved for sale and your lease may be terminated; 2) min. 90 days prior to sale further notice will be provided; 3) will have V right to purchase for 90 days. Unit shall not be referred to as "apartment" in lease flocs. If owner fails to give notice then must provide moving expenses and 1" month rent (same as 66452.17 above) 7 ATTACHMENT_#3 Item 15. - 82 HB -496- Jl City of l�un144gt0n Beath Planning and 9attlding I)eparttmeat .� Hur+Twcraa sencr+ TO: Planning Commission FROM: Scott Hess, AICP, Director of Planning and Building BY: Jane James, Senior Planner 1?t MATE: October 25, 2011 SUBJECT: DEVELOPMENT AGREEMENT NO. 08-001 (Continued From the October 11, 2011 Meeting With the Public Bearing to be Opened - The Village at Bella 'Terra Development Agreement) APPLICANT/ .PROPERTY OWNER: Becky Sullivan, BTDJM Phase H Associates, LLC, 922 Laguna Street, Santa Barbara, CA 93101 LOCATION: 7601 Edinger Avenue, Huntington Beach, CA 92647 (north side of Edinger Avenue, east of Union Pacific Rail Road and west of existing Bella Terra development) STATEMENT OF ISSUE: ® Development Agreement No. 08-001 represents a request for the following: - To enter into a Development Agreement between the City of Huntington Beach and BTDJM Phase lI Associates, LLC that will afford certain benefits to the property owner for a ten year term as they relate to approvals for The Village at Bella Terra mixed use project, a 467 multi -family residential development with 30,000 square feet of ground floor retail and restaurant uses. The project was continued from. the October 11, 2011 meeting, at the applicant's request. o Staff Recommends approval of Development Agreement No. 08-001 based upon the following: - Consistency with the goals and policies of the General Plan and the provisions of Specific Plan No. 13; - Conforms to the provisions of Chapter 246 — Development Agreements of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO); - Consistency with the approved. Village at Bella Terra mixed use project and the Conditions of Ap- proval and Mitigation Measures adopted pursuant to Site Plan Review (SPR) No. 10-001, Entitle- ment Plan Amendment No. 11-002, Environmental Impact Report (EIR) No. 07-003 as approved by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-003 as consi- dered by the Planning Commission on August 24, 2010; and - Ensures the mutually beneficial development of the approved project and serves the needs of the surrounding community by providing for street improvements on Center Avenue. HB -497-Item 15. - 83 DEVELOPMENT AGREEMENT NO.2008-001 (THE VILLAGE AT BELLA TERRA - MIXED USE - 7601 EDINGER AVENUE) port—10125ill ' (11 SR46 DA 08-001 Bella Terra) Item 15. - 84 HB -498- RECONMIENDATION: Motion to: "Approve Development Agreement No. 08-001 with findings for approval (Attachment No. 1) and for- ward Draft Ordinance (Attachment No. 2) to the City Council for adoption." ALTERNATIVE ACTION(S): The Planning Commission may take alternative actions such as: A. "Deny Development Agreement No. 08-001 with findings for denial." B. "Continue Development Agreement No. 08-001 and direct staff accordingly." PROJECT PROPOSAL: Develoyrnent Agreement No. 08-001 represents a request by BTDJM to enter into a Development Agreement between the City of Huntington Beach and BTDJM Phase II Associates, LLC pursuant to Chapter 246 of the HBZSO and California Government Code Section. 65864 et.seq. The proposed Development Agreement will provide assurances to the property owner/developer that The Village at Bella Terra mixed use project approved for the 10.40-acre site (formerly occupied by the Montgomery Wards automotive repair building and the associated parking lot) can proceed in accord with applicable approvals, thus vesting certain development rights in the property. The proposed Development Agreement will afford certain benefits and protections to the property owner/developer that would otherwise not be applicable to the project. In summary, the property owner/developer requests several considerations in the development agreement as follows: ® Ten year term (DA Section 2.3); ® City to provide cooperation with processing amendments to the DA, the approved development plan, any future development plans, and process Lot Line Adjustment requests on an "administrative approval" basis only (DA Section 3.1.3); 0 Extend the life of Tentative Tract Map No. 17261 for ten years and agree to process multiple final maps (DA Section 3.1.3); ® Right to construct approved project and development shall not be subject to future new fees that may be adopted during the term of the agreement although existing fees applicable to the project may be modified (DA Section 3.2.1); m Delay payment of For Sale Project Park and Recreation fees until units are actually sold at a future unknown date; in the meantime, developer will pay Rental Project Park and Recreation fees (DA Sections 5.1, 5.1.1, and 5.1.2); • Defines the applicable conversion regulations should the residential units be rented prior to creation of a common interest development pursuant to California Civil Government Code Section. 1352 (DA Section 5.1.4). History: On August 24, 2010, the Planning Commission approved General Plan Amendment (GPA) No. 10-001, Zoning Text Amendment (ZTA) No. 10-001, and Site Plan Review (SPR) No. 10-001 for The Village at Bella Terra — Costco Wholesale, facilitating the development of a regional commercial big -box retail with PC Staff Report —10/25/11 1(11 SR46 DA 08-C HB -499- Item 15. - 85 gasoline service station and mixed -use retail and residential project. In general, this project amended the planning areas within Specific Plan (SP) No. 13, established warehouse sales outlets and gasoline service stations as permitted uses, created corresponding design and development standards for such uses, and approved development of a 154,113 square foot Costco Wholesale store with associated 16-pump gas sta- tion and a mixed -use development consisting of 467 residential units and 30,000 square feet of general retail and restaurant uses. The project requires elevation of the site in accordance with floodplain regula- tions resulting in the import of 32,810 cubic yards of fill soil. The approximately 24 acre master plan site is located between Edinger Avenue and Center Avenue, just west of the existing Bella Terra mall, and just east of the Union Pacific rail road line. The Development Agreement covers only the mixed use residen- tial and retail development on the southern portion of the site and does not include the Costco warehouse or the Costco fuel facility. The Planning Commission's action on SPR No, 10-001 was final and no appeals were filed. On September 20, 2010, the City Council approved GPA No. 10-001 and ZTA No. 10-001, concluding the legislative actions required for the proposed project. Subsequently, on February 23, 2011, the Planning Commission approved Tentative Tract leap No. 17261 for condominium purposes for The Village mixed use portion of the site. On April 8, 2011, the Director approved Entitlement Plan Amendment No. 2011- 002 to amend the size and shape of the residential parking structure to reduce the walking distance to each unit, amend the interior courtyard spaces and recreational amenities, reorient the westerly units to face north and south, and add one additional level of residential above the retail. The project details remain the same at 467 residential units and 29,500 square feet of retail/restaurant uses. The Village at Bella Terra is subject to provide 15% of the total 467 units (71 units) as affordable housing units pursuant to the conditions of approval and the existing Affordable Housing Agreement. Study Session: The Planning Commission held a study session on Development Agreement No. 08-001 on September 27, 2011. The Planning Commission asked questions related to the estimated cost of improvements for Cen- ter Avenue and requested a cosYbenefit analysis of the development agreement. This issue is further dis- cussed in the Analysis section. Discussion ensued regarding future development fees and exactions that may apply to the property over the term of the development agreement. Staff would like to clarify that existing permit and impact fees may be raised or lowered in the future and the project would be subject to the fee amount in effect at the time payment is triggered. However, the project will not be subject to any new fees or exactions that may be adopted in the future. The development agreement has been revised to clarify this issue (DA Section 3.2.1). The applicant/property owner and their legal counsel attended and spoke during the study session. No other members of the public spoke regarding this agenda item. Item 15. - $6 l0l2s/l l (I ISR46 DA 08-001 Bella Terra) HB -500- ISSUES: Subiect Property Land Use, Zoning, and General Plan Designations: °��CAII�N G3vERAI, )�LAOI�IItiG I.A1�D USE , 4 Subject Property CR F2-sp-mu-(F14) (Regional Specific Plan No. Vacant (recently demolished Comm'1-0.5-FAR-Specific Plan 13-Bella Terra Hun- Montgomery Ward store and Overlay -Mixed Use Overlay- 1.75 tington Beach - Area auto repair) FAR [MU-0.07 C}/45 du/acre]) B North of Subject CR-F2-sp-mu-(F14) (Regional Specific Plan No. Vacant (recently demolished Property Comm'1-0.5-FAR-Specific Plan 13-Bella Terra Hun- Montgomery Ward store, Overlay -Mixed Use Overlay- 1.75 tington Beach— auto repair, and Mervyn's FAR MU-0.2{C /45 du/acrel) Area A store) West of Subject M-sp (Mixed Use -Specific Plan Specific Plan No. 14 North - Old World Village; Property (across rail- Overlay) —Beach and Edinger West - Approved for 487- road tracks) and South Corridors Specific units and 14,500 square (across Edinger Ave) Plan feet of commercial space (former Levitz) and Col- lege Country Center (Ap- proved for Amstar/Red Oak mixed use residen- tial/commercial project); and South - Retail East of Subject CR-F2-sp-mu (F9) (Regional Specific Plan No. Bella Terra Mall Property Comm'1-0.50 FAR -Specific Plan 13-Bella Terra Hun - Overlay -Mixed Use Overlay- 1.5 tington Beach FAR [MU-0.51C /25 du/acre General Plan Conformance: The project site is located within Specific Plan No. 13 and the General Plan land use designation is CR- F2-sp-mu-(F14) (Regional Commercial-0.5-FAR-Specific Plan Overlay -Mixed Use Overlay-1.75 FAR [MU-0.02{Cl/45 du/acre]). The development agreement is consistent with the following General Plan goals, policies and objectives: A. Urban Design Element Goal UD 1.1: Enhance the visual image of the City of Huntington Beach. B. Land Use Element Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Goal LU 4.2.4: Require that all development be designed to provide adequate space for access; parking, supporting functions, open space, and other pertinent elements. Goal LU 7: Achieve a diversity of land uses that sustain the City's economic viability, while maintaining the City's environmental resources and scale and character. PC Staff Report-10/25/11 -t- (11SR46 DA 08-0 HB -501- Item 15. - 87 Goal LU 8: Achieve a pattern of land uses that preserves, enhances, and establishes a distinct identity for the City's neighborhoods, corridors, and centers. Policy LU 8.1.1: Accommodate land use development in accordance with the patterns and distri- bution of use and density depicted on the Land Use Plan Map, in accordance with the principles discussed below: a. Not applicable b. Vary uses and densities along the City's extended commercial corridors, such as Beach Boule- vard. c. Increase diversification of community and local commercial nodes to serve adjacent residential neighborhoods. e. Intermix uses and densities in large-scale development projects. f. Site development to capitalize upon potential long-term transit improvements. g. Establish linkages among community areas, which may include pedestrian and vehicular paths,. landscape, signage, other streetscape elements, open space, transitions, in form, scale, and den- sity of development, and other elements. Goal LU 9: Achieve the development of a range of housing units that provides for the diverse economic, physical, and social needs of existing and f iturc residents of Huntington Beach. Policy LU9.1.4: Require that recreational and open space amenities be incorporated in new multi- family developments and that they be accessible to and of sufficient size to be usable by all resi- dents. Policy LU 10.1.15: Require that regional commercial developments be designed to convey the visual sense of an integrated center by consideration of the following principles: a. Use of multiple building volumes and masses and highly articulated facades to reduce the vis- ual sense of large scale "boxes"; b. Use of roofline or height variations to visually differentiate the building massing and incorpo- ration of recesses and setbacks on any elevation above the second floor above grade; c. Siting of a portion of the buildings in proximity to their primary street frontage to convey a visual relationship to the street and sidewalks; d. Design of the exterior periphery of the structures to contain shops, restaurants, display win- dows, and other elements that provide visual interest to parking areas and the street elevation; e. Inclusion of a "public square" as a gathering place of public activity in multi -tenant regional centers; f. Clear identification of building entrances; g. Use of landscape that provides a three-dimensional character; h. Encourage the provision of public art; i. Inclusion of consistent and well -designed signage integrated with the building's architectural character, including pedestrian -oriented signage; and j. Design of parking structures to be visually integrated with the commercial buildings. Goal LU 11: Achieve the development of projects that enable residents to live in proximity to their jobs, commercial services, and entertainment, and reduce the need for automobile use. orf — I0/25i1I (I ISR46 DA 08-001 BeL'a Terra) Item 15. - 88 HB -502- Policy LU 11.1.2: Limit commercial uses in mixed use development projects to those uses that are compatible with the residences. Policv LU 11.1.4: Require the incorporation of adequate onsite open space and recreational facili- ties to serve the needs of the residents in mixed use development projects. Policy LU 11.1.5: Require that mixed use developments be designed to mitigate potential con- flicts between the commercial and residential uses, considering such issues as noise, lighting, secu- rity, and truck and automobile access. Policy LU IT 1.6: Require that the ground floor of structures that horizontally integrate housing with commercial uses locate commercial uses along the street frontage (housing may be located to the rear and/or on upper floors). Policv LU II. L 7: Require that mixed use development projects be designed to achieve a consis- tent and high quality character, including the consideration of the: a. Visual and physical integration among the commercial and residential uses (Plates LU-3 and LU-4); b. Architectural treatment of building elevations to convey the visual character of multiple build- ing volumes and individual storefronts and residential units. Implementation Program I-LU 7: Where appropriate, the City may use Development Agreements as binding implementation tools. Development Agreements are authorized by State law to enable a city to enter into a binding contract with a developer that assures the city as to the type, character, and quality of development and additional "benefits" that may be contributed and assures the developer that the necessary development permits will be issued regardless of changes in regulations. The development agreement would ensure that the project is developed in accordance with the approved Village at Bella Terra development plan, consisting of a mixed use, high density development. The result- ing project increases housing options for diverse household types, promotes alternative modes of transpor- tation, creates a local sense of place, reduces infrastructure and maintenance costs, and allows for more efficient use of land resources. Through the approved Affordable Housing Agreement, the project is re- quired to meet affordable housing obligations providing the equivalent of 15 percent of the units as af- fordable. Additionally, the terms of the agreement specify that the developer would be responsible for community improvements beyond the typical obligations of the project in the form of additional street im- provements along Center Avenue. finally, the benefits of the development agreement include assurances that if the property owner proceeds with construction, then the high quality mixed use project as approved under recent entitlements -Alll be implemented, payment of for -sale park and recreation fees will be col- lected if the units are sold at a future date, and tenant notification and first right of refusal to buy will be provided if the rental units are converted to for -sale units. Zoning Compliance; The Village at Bella Terra mixed use project, as approved pursuant to Site Plan Review No. 10-001 and Entitlement Plan Amendment No. 11-002, is consistent with the development standards and regulations of Specific Plan No. 13. Development Agreement No. 08-001 references the approved project and would PC Staff Report —10/25/11 1 (11 SR46 DA 084 HB -503- Item 15. - 89 ensure implementation of the project in accordance with the conditions of approval and mitigation meas- ures adopted for the project. Urban Deskn Guidelines Conformance: Not Applicable. Environmental Status: The development agreement was included in the scope of The Village at Bella Terra Environmental Impact Report (EIR No. 07-03) certified by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-03 considered by the Planning Commission on August 24, 2010. Environmental Board: Not Applicable. Coastal Status: Not applicable Redevelopment Status: The project site is within a redevelopment project sub -area. In October 2010, BTDJM Phase U Asso- ciates, LLC and the City of Huntington Beach Redevelopment Agency entered into an Affordable Housing Agreement. The City's Economic Development Department has reviewed the draft development agree- ment to ensure consistency with that existing agreement and with other provisions of Redevelopment Law. Through the approved Affordable Housing Agreement, BTDJM is providing 43 moderate and 28 very low income housing units on site and will be reimbursed by the Agency for the construction of the units. Design Review Board. Not applicable Subdivision Committee: Not applicable. Other Departments Concerns and Reguirements: Development Agreement No. 08-001 was drafted by outside counsel for the Redevelopment Agency in coordination with the City Attorney's Office, Planning & Building Department, Public Works Department, and Economic Development Department. In addition, Development Agreement No. 08-001 is consistent with conditions approved for Site Plan Review (SPR) No. 10-001 and mitigation measures adopted for EIR No. 07-001 and Addendum to EIR No. 07-001 for The Village at Bella Terra project, which was reviewed by the Building Division and Fire, Police, Public Works, Community Services and Economic Development Departments. Public Notification: Legal notice was published in the Huntington Beach Independent on September 29, 2011, and notices were sent to property owners of record and occupants within a 1,000 ft. radius of the project site, interest- ed parties, and individuals/organizations that previously commented on the environmental document or project entitlements. The applicant submitted a letter on October 3, 2011 describing theiropposition to the requirement to repair/repave Center Avenue (Attachment No. 5). The applicant also submitted a re- quest for continuance to the October 25, 2011 meeting on October 3, 2011. The Planning Commission Item 15. - 90rt-10/25/11 HB -504- (11 SR4S AA 08-001 Bella Terra) granted the request for continuance with the public hearing to be opened. As of October 18, 2011, no oth- er communications on Development Agreement No. 08-001 have been received. Application Processing Dates: DATE OF COMPLETE APPLICATION: MANDATORY PROCESSING DATE(S): September 2, 2011 March 2, 2012 (Within 6 months of complete application) ANALYSIS: The objective of a development agreement is to provide assurances that an applicant may proceed with a project in accordance with existing policies and standards in place at the time of project approval. The City and property owner/developer desire to enter into a development agreement for the subject site for a term of ten years in order to achieve the mutually beneficial development of the property and ensure that the project is developed in accordance with the approved SPR No. 10-001 and EPA No. 2011-002. The Planning Commission determines whether the agreement is consistent with the General Plan and on the basis of their findings, recommends either approval, modification, or disapproval of the proposed de- velopment agreement to the City Council. The City Council may approve the requested development agreement after making the following findings: that the agreement is consistent with the General Plan and any Specific Plan; that the agreement is consistent with the HBZSO, the Municipal Code, and the State Subdivision Map Act; that the agreement will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of property; and finally, that the City Council has consi- dered the fiscal effect of the development agreement on the City and the effects on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its resi- dents and available fiscal and environmental resources. This analysis includes a discussion of the items the Planning Commission should consider. Consistences General Plan and Zoning The development agreement's consistency with the General Plan is analyzed in the General Plan Confor- mance Section above. Specific Plan No. 13 (SP 13) was adopted in July 2000 and modified several times, most recently in Sep- tember 2010 to enhance the overall economic performance, physical beauty and functionality of the Bella Terra property. SP 13 is intended to guide future development, establish regional commercial uses, and allow mixed use residential and retail components within an overall Italian Village lifestyle center. The Planning Commission determined that approval of The Village at Bella Terra - Costeo Warehouse and Fuel Facility project was consistent with the goals and requirements of the General Plan and SP 13. Sub- sequently, the site layout and mixed use residential and retail component was revised and approved by the Director through Entitlement Plan Amendment No. 2011-006 in April 2011. The revised plans were also deemed in compliance with the General Plan and Specific Plan No. 13. The development agreement would be effective for 10 years and vests the developer's right to construct the project pursuant to the terms of the agreement. Development Agreement No. 08-001 refers to the project's "Development Plan," which complies with the SP 13 development code, as approved by the Planning Commission in August 2010 and the revised plan approved by the Director in April 2011. In PC Staff Report— 10/25/11 (11SR46 DA08-C HB -505- Item 15. 91 addition, the development agreement is consistent with the General Plan land use designation for the site insofar as the approved project is consistent with the General Plan land use designation. As discussed in the General Plan Conformance Section of this report, through implementation of the "Development Plan," the development agreement would conform to applicable goals and policies of the General Plan. Special Considerations The applicant filed the development agreement application so that they could be afforded certain benefits and protections that are summarized under Project Proposal section of this Staff Report. General Plan Implementation Program I-Lt1-7 Development Agreements states, "'Where appropriate, the city may use Development Agreements as binding implementation tools. Development Agreements are authorized by State law to enable a city to enter into a binding contract with a developer that assures the city as to the type, character, and quality of development and additional `benefits' that may be contributed and assures the developer that the necessary development permits will be issued regardless of changes in regulations." In consideration of the proposed Development Agreement and the advantages it provides to the developer, the developer is asked to provide "additional benefits" that exceed what would normally be required or conditioned on the project pursuant to City's codes, ordinances, policies, General Plan, State Law, Redevelopment Law, and CEQA (i.e., subdivision exactions, impact fees, conditions of approval, and mitigation measures). Therefore, the City requests the following considerations: ® As a benefit to the City, Developer shall construct off -site public improvements consisting of repair of curb, gutter and sidewalk, and repaving the full width of Center Avenue between the 405 Freeway off -ramp and the signalized private access driveway into Bella TerraBella Terra Towers as well as the north side of Center Avenue between the private access drive and the railroad tracks on the westerly boundary of the site (DA Section 4.1.1); • As previously stipulated in the 2010 Affordable Housing Agreement between BTD3M Phase II Associates, LLC and the Redevelopment Agency, Developer shall contribute $250,000 toward construction of a pedestrian path between Bella Terra and the Boardwalk development. The additional language in the DA further specifies that the funds may be used toward planning, design, permit fees and construction of the off -site bridge (DA Section 4.1.2). Staff supports all the terms, provisions, and special considerations of the development agreement re- quested by the property owner/developer identified in the Project Proposal section above. Cost/Benefit of Proposed Development Agreement At the Study Session, the Planning Commission requested further information on the costs and benefits of the proposed development agreement. One of the costs identified is the repair and replacement of the north side of Center Avenue along the Costco frontage and the repair and replacement of both sides of Center Avenue between the Costco frontage and the I-405 off -ramps. The street improvements on the south side of Center Avenue along the Costco frontage are Costeo's responsibility, pursuant to their project conditions of approval. The applicant estimates the cost of the street improvement work at $500,000 and Public Works Department concurs with this cost estimate. Since the street improvements were not part of the approved entitlements they should be considered a benefit to the City and cost to de- veloper and have been identified as such in the proposed development agreement. On October 3, 2011 Item 15. - 92'0rt —10,125/11 HB 1506- (11SR46 DA 08-001 Bella Terra) the applicant/property owner responded to the Planning Commission's request and submitted a letter cit- ing their opposition to the Center Avenue improvements request by the City. Additional benefits to the developer are having an approved project and approved subdivision for ten years with assurances provided by the development agreement that future zoning and land use laws and fees will not be imposed even if the project has not been constructed. The Subdivision Map Act only al- lows for this additional extension of the recordation of the Tract Map through development agreements_ The HBZSO requires payment of in -lieu For -Sale Park and Recreation Fees at recordation of a final map. Staff agrees to the developer's request to delay For -Sale Project Park and Recreation fees until the units are actually sold and to accept payment of the Rental Project Park and Recreation fees in the meantime because ultimately the fees will be collected. The applicant/property owner will realize a financial benefit by delaying the payment of condominium park and recreation fees and instead paying rental fees until the units are sold. The Rental Park and Recreation fees are calculated on a fee per square foot method. Based on the proposed mixed use project the Rental Park and Recreation fees are estimated at approximately $600,856. The For -Sale Park and Recreation fees are based upon current property values. In the absence of a property value appraisal, the City's real estate management staff has provided a land value estimate and staff calculated the estimated For -Sale Park and Recreation fees between $10 million on the low end. and $14 million on the high end. The Development Agreement states that the property owner/developer will be obligated to pay the difference between the Rental Park and Recreation fee paid and the For -Sale Park and Recreation fee in effect at the time the units become available for sale. Finally, a cost to the developer and benefit to the City is the $250,000 contribution towards a pedestrian path between Bella Terra and the Boardwalk development. It should be noted that this obligation is al- ready required by the Affordable Housing Agreement. The developer is obligated to contribute these funds even without this proposed development agreement. The additional language in the development agreement is simply requested by staff to describe that the funds may be used toward planning, design, and permit fees in addition to utilizing the funds towards construction of the bridge. The terms of the agreement, including the items discussed above, will not be detrimental to the health, safety, and well-being of the surrounding community and do not take away from the high quality nature of the project. Overall, staff supports the proposed terms of the development agreement and agrees with the protections and benefits afforded to the developer. Staff recommends the Planning Commission approve the proposed Development Agreement No. 2008-001 along with the requirement to repair and repave Center Avenue because it ensures development of a high quality mixed use project in response to econom- ic and market conditions and because a public benefit in terms of street improvements is included. Staff recommends approval of Development Agreement No. 08-001 because it: ® Is consistent with the goals and policies of the General Plan and the provisions of Specific Plan No. 13; e Conforms to the provisions of Chapter 246 — Development Agreements of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO); ® Is consistent with the approved Village at Bella Terra mixed use project and the Conditions of Approval and Mitigation Measures adopted pursuant to Site Plan Review (SPR) No. 10-001, Entitlement Plan. Amendment No. 11-002, Environmental Impact Report (EIR) No. 07-003 as PC Staff Report—10/25/11 -1 1 - (11 SR46 DA 08-0 1-113 -507- Item 15. - 93 approved by the Planning Commission on October 14, 2008 and Addendum to Egt No. 07-003 as considered by the Planning Commission on August 24, 2010; and Ensures the mutually beneficial development of the approved project and serves the needs of the surrounding community by providing for street improvements on Center Avenue. ATTAC14MENTS: 1. Suggested Findings for Approval - Development Agreement No. 08-001 2. . __ . _ _ l—e No. HEMIMMUMTEM ,_..._MIN i..._ i -12MMV, WWWRIMA }. SH:HF:MBB:73:kd Item 15. - 94irt-10125/11 HB -508- (11SR46 DA 0&-001 Bella Terra) ATTACHMENT NO. 1 SUGGESTED FINDINGS FOR APPROVAL DEVELOPMENT AGREEMENT NO.2008-001 SUGGESTED FINDINGS FOR CEOA: The Planning Commission finds that the development agreement was included in the scope of The Village at Bella Terra Environmental Impact Report (EIR No. 07-003) certified by the Planning Commission on October 14, 2008 and Addendum to EIR No. 07-03 considered by the PIanning Commission on August 24, 2010. SUGGESTED FINDING FOR APPROVAL — DEVELOPMENT AGREEMENT NO.2008-001: The development agreement is consistent with the General Plan and Specific Plan No. 13. Development Agreement No. 2008-001 provides for the construction of The Village at Bella Terra mired use project, which complies with the SP 13 development code and was found to conform to the goals and policies of the General Plan as approved by the Planning Commission on August 24, 2010 and amended under En- titlement Plan Amendment No_ 2011-002 as approved by the Director of Planning and Building on April 8, 2011. The development agreement ensures the construction of the approved project under the 10-year term. The development agreement is consistent with the following General Plan goals and policies: A. Urban Desio Element Goal UD 1.1: Enhance the visual image of the City of Huntington Beach. B_ Land Use Element Goal L U 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Goal LU 4.2.4: Require that all development be designed to provide adequate space for access, parking, supporting functions, open space, and other pertinent elements. Goal LU 7: Achieve a diversity of land uses that sustain the City's economic viability, while maintaining the City's environmental resources and scale and character. Goal LU 8: Achieve a pattern of land uses that preserves, enhances, and establishes a distinct identity for the City's neighborhoods, corridors, and centers. Policy LU 8.1.1: Accommodate land use development in accordance with the patterns and distri- bution of use and density depicted on the Land Use Plan Map, in accordance with the principles discussed below: a. Not applicable b. Vary uses and densities along the City's extended commercial corridors, such as Beach Boule- vard. 11 SR46 DA 08-001 Bella Terra Attachment N n. 1.1 HB -509- Item 15. - 95 c. Increase diversification of community and local commercial nodes to serve adjacent residential neighborhoods. e. Intermix uses and densities in large-scale development projects. f. Site development to capitalize upon potential long-term transit improvements. g. Establish linkages among community areas, which may include pedestrian and vehicular paths, landscape, signage, other streetscape elements, open space, transitions, in form, scale, and den- sity of development, and other elements. Goal LU 9: Achieve the development of a range of housing units that provides for the diverse economic, physical, and social needs of existing and future residents of Huntington Beach. Policy LU 9.1.4: Require that recreational and open space amenities be incorporated in new multi- family developments and that they be accessible to and of sufficient size to be usable by all resi- dents. Policy LU 10.1.15: Require that regional commercial developments be designed to convey the visual sense of an integrated center by consideration of the following principles: a. Use of multiple building volumes and masses and highly articulated facades to reduce the vis- ual sense of large scale "boxes"; b. Use of roofline or height variations to visually differentiate the building massing and incorpo- ration of recesses and setbacks on any elevation above the second floor above grade; c. Siting of a portion of the buildings in proximity to their primary street frontage to convev a visual relationship to the street and sidewalks; d. Design of the exterior periphery of the structures to contain shops, restaurants, display win- dows, and other elements that provide visual interest to parking areas and the street elevation; e. Inclusion of a "public square" as a gathering place of public activity in multi -tenant regional centers; f. Clear identification of building entrances; g. Use of landscape that provides a three-dimensional character; h. Encourage the provision of public art; i. Inclusion of consistent and well -designed signage integrated with the building's architectural character, including pedestrian -oriented signage; and j. Design of parking structures to be visually integrated with the commercial buildings. Goal LU 11: Achieve the development of projects that enable residents to live in proximity to their jobs, commercial services, and entertainment, and reduce the need for automobile use. Policy LU 11,1.2: Limit commercial uses in mixed use development projects to those uses that are compatible with the residences. Policy LU I1.1.4: Require the incorporation of adequate onsite open space and recreational facili- ties to serve the needs of the residents in mixed use development projects. Policy LU 11.1.5: Require that mixed use developments be designed to mitigate potential con- flicts between the commercial and residential uses, considering such issues as noise, lighting, secu- rity, and truck and automobile access. 11 RR4F PA 08-001 Bella Terra Attachment No. 1.2 Item 15. - 96 HB -510- Policy LU IL I.6: Require that the ground floor of structures that horizontally integrate housing with commercial uses locate commercial uses along the street frontage (housing may be located to the rear and/or on upper floors). Policy L U 11.1.7: Require that mixed use development projects be designed to achieve a consis- tent and high quality character, including the consideration of the: a. Visual and physical integration among the commercial and residential uses (Plates LU-3 and LU-4); b. Architectural treatment of building elevations to convey the visual character of multiple build- ing volumes and individual storefronts and residential units. Implementation Program I-LU 7: Where appropriate, the City may use Development Agreements as binding implementation tools. Development Agreements are authorized by State law to enable a city to enter into a binding contract with a developer that assures the city as to the type, character, and quality of development and additional "benefits" that may be contributed and assures the developer that the necessary development permits will be issued regardless of changes in regulations. The development agreement would ensure that the project is developed in accordance with the ap- proved Village at Bella Terra development plan, consisting of a mixed use, high density development. The resulting project increases housing options for diverse household types, promotes alternative modes of transportation, creates a local sense of place, reduces infrastructure and maintenance costs, and allows for more efficient use of land resources_ Through the approved Affordable Housing Agreement, the project is required to meet affordable housing obligations providing the equivalent of 15 percent of the units as affordable. Additionally, the terms of the agreement specify that the devel- oper would be responsible for community improvements beyond the typical obligations of the project in the form of additional street improvements along Center Avenue. Finally, the benefits of the devel- opment agreement for this mixed use project include assurances that the mixed use project will be built, payment of for -sale park and recreation fees will be collected if the units are sold at a future date, and tenant notification and first right of refusal to buy will be provided if the rental units are converted to for -sale units. INDEMNIFICATION AND HOLD HARMLESS CONDITION: The owner of the property which is the subject of this project and the project applicant if different from the property owner. and each of their heirs, successors and assigns, shall defend, indemnify and hold harmless the City of Huntington Beach and its agents, officers, and employees from any claim, action or proceedings, liability cost, including attorney's fees and costs against the City or its agents, officers or employees, to attack, set aside, void or annul any approval of the City, including but not limited to any approval granted by the City Council, Planning Commission, or Design Review Board concerning this project. The City shall promptly notify the applicant of any claim, action or proceeding and should coope- rate fully in the defense thereof 11 SR46 DA 08-001 Bella Terra Attacbmanr Vn t 'A HB -511- Item 15. - 97 August 25, 2010 SUBJECT: APPLICANT: PROPERTY OWNER: LOCATION: DATE OF ACTION: Huntington Beach Planning Commission 2000 MAIN STREET CALIFORNIA 92648 NOTICE OF ACTION SITE PLAN REVIEW NO. 10-001 (THE VILLAGE AT BELLA TERRA — COSTCO) Becky Sullivan, BTDJM Phase II Associates, LLC, 922 Laguna Street, Santa Barbara, CA 93101 Becky Sullivan, BTDJM Phase II Associates, LLC, 922 Laguna Street, Santa Barbara, CA 93101 Southern California Edison, Dino J. LaBanca, 2131 Walnut Grove Avenue, G03, 2"d Floor, Rosemead, CA 91770 7601 Edinger Avenue (between Edinger Avenue and Center Avenue, west of existing Bella Terra development and east of Union Pacific Railroad) April 24, 2010 On Tuesday, April 24, 2010, the Huntington Beach Planning Commission took action on your application, and your application was conditionally approved. Attached to this letter are the revised findings and revised conditions of approval. Please be advised that the Planning Commission reviews the conceptual plan as a basic request for entitlement of the use applied for and there may be additional requirements prior to commencement of the project. It is recommended that you immediately pursue completion of the conditions of approval and address all requirements of the Huntington Beach Zoning and Subdivision Ordinance in order to expedite the processing/completion of your total application. The conceptual plan should not be construed as a precise plan, reflecting conformance to all Zoning and Subdivision Ordinance requirements. Under the provisions of the Bella Terra Specific Plan (SP. 13), the action taken by the Planning Commission becomes final at the expiration of the appeal period. As specified in SP 13, the property owner or a City Council member may file a written notice of appeal to the City Clerk within ten (10) calendar days of the date of the Planning Commission's action. The notice of appeal shall include the name and address of the appellant, the decision being appealed, and the grounds for the appeal. Said appeal must be accompanied by a filing fee of Two Thousand, Seven Hundred Four Dollars ($2,704.00). In your case, the last day for filing an appeal and paying the filing fee is September 3.2010 at 5:00 PM. Item 15. - 9&6-5271 Fax HB _512_340 www,surfclty-hb.org Page Two Site Plan Review No. 10-001 Notice of Action August 25, 29010 Provisions of the Huntington Beach Zoning and Subdivision Ordinance are such that any application becomes null and void one (1) year after final approval, unless actual construction has started. "Excepting those actions commenced pursuant the California Environmental Quality Act, you are hereby notified that you have 90 days to protest the imposition of the fees described in this Notice of Action. If you fail to file a written protest regarding any of the fees contained in this Notice, you will be legally barred from later challenging such action pursuant to Government Code §66020." If you have any questions, please contact Jane James, the project planner, at iiames .surfcity- hb.org or (714) 536-5596 or the Planning and Building Department Zoning Counter at (714) 536-5271. Sincerely, Scott Hess, Secretary Planning Commission By: Herb Fauland, Planning Manager SH:HF:JJ:jr Attachment: 1. Findings and Conditions of Approval — SPR No. 10-001 2. Public Works Conditions of Approval — SPR No. 10-001 3. Revised Mitigation Monitoring and Reporting Program — Addendum to EIR No. 07-003 c: Honorable Mayor and City Council Chair and Planning Commission Fred A. Wilson, City Administrator Scott Hess, Director of Planning and Building Bill Reardon, Division Chief/Fire Marshal Mike Vigliotta, Deputy City Attorney III Debbie DeBow, Principal Civil Engineer Gerald Caraig, Permit -Plan Check Manager Jane James, Senior Planner Property Owner Project File HB -513- Item 15. - 99 ATTACHMENT NO. 1 FINDINGS AND CONDITIONS OF APPROVAL SITE PLAN REVIEW NO. 10-001 FINDINGS FOR APPROVAL — SITE PLAN REVIEW NO. 10-001: 1. Site Plan Review No. 10-001 for the establishment, maintenance and operation of the 154,113 sq ft Costco with tire sales/installation center, outside food service, and 16-pump gas station; 467 multi -family residential units; an additional 30,000 sq ft of mixed use retail and restaurants; a shared use of parking, and; a 3'-9" retaining wall along the western boundary, will not be detrimental to the general welfare of persons working or residing in the vicinity or detrimental to the value of the property and improvements in the neighborhood. The regional commercial use and the mixed -use residential and retail development, with the recommended conditions of approval, incorporates architectural and design principles to help ensure maximum compatibility of design with the existing Bella Terra, promote pedestrian -friendly entries and uses, and promote the use of high quality exterior materials. Structures on the project site would vary in heights in order to provide variety to the roofline and to reduce overall building massing. Development standards and design guidelines in Specific Plan No. 13 ensure that form, height, and development convey an overall high level of quality. Landscaping and paving patterns will be compatible with the adjacent Bella Terra development and the project will contain gathering places for public activity. 2. The site plan review will be compatible with surrounding uses because circulation patterns effectively move passenger vehicles and delivery trucks around the site; adequate parking for the proposed development will be included; the conditions will ensure monitoring of future parking conditions; a high level of quality architecture is proposed with the mixed use portion of the building and will be incorporated, via conditions of approval, on the warehouse and sales outlet; the overall project will incorporate sustainable building practices to maximize energy efficiency, and the Costco building will be equivalent to LEED certified. 3. The proposed 154,113 sq ft Costco with tire sales/installation center, outside food service, and 16-pump gas station; 467 multi -family residential units; an additional 30,000 sq ft of mixed use retail and restaurants; a shared use of parking, and; a 3'-9" retaining wall along the western boundary will comply with the provisions of Specific Plan No. 13 and other applicable provisions in Titles 20-25 of the Huntington Beach Zoning and Subdivision Ordinance., The proposed project meets code requirements in terms of building height, setbacks, landscaping, common and private open space, and with conditions imposed may include reciprocal access for pedestrian and bicycle connections from the westerly adjacent property to the Bella Terra development. 4. The granting of the site plan review will not adversely affect the General Plan. It is consistent with the Land Use Element designation of CR-F2-sp-mu (F9) (Regional Commercial) for Area A and CR-F2-sp-mu (F14) (Regional Commercial) for Area B on the Item 15. - 100 HB -514- subject property. In addition, it is consistent with the following goals and policies of the General Plan: A. Circulation Element Objective CE 3.2: Encourage new development that promotes and expands the use of transit services. Policy CE 6.1.6: Maintain existing pedestrian facilities and require new development to provide pedestrian walkways and bicycle routes between developments, schools, and public facilities. B. Growth Management Element Policy GM 3.1.8: Promote traffic reduction strategies including alternate travel modes, alternate work hours, and a decrease of vehicle trips throughout the city. C. Housing Element Policy H 2.2: Facilitate the development of mixed use projects in appropriate commercial areas, including stand-alone residential development (horizontal mixed use) and housing above ground floor commercial uses (vertical mixed use). Establish mixed use zoning regulations. Policy H 3.1: Encourage the production of housing that meets all economic segments of the community, including lower, moderate, and upper income households, to maintain a balanced community. Goal H 5: Provide equal housing opportunity. D. Land Use Element Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Goal L U 4.2. 4: Require that all development be designed to provide adequate space for access, parking, supporting functions, open space, and other pertinent elements. Goal LU 7: Achieve a diversity of land uses that sustain the City's economic viability, while maintaining the City's environmental resources and scale and character. Goal LU 8: Achieve a pattern of land uses that preserves, enhances, and establishes a distinct identity for the City's neighborhoods, corridors, and centers. HB -515- Item 15. - 101 Policy LU 8.1.1: Accommodate land use development in accordance with the patterns and distribution of use and density depicted on the Land Use Plan Map, in accordance with the principles discussed below: a. Not applicable b. Vary uses and densities along the City's extended commercial corridors, such as Beach Boulevard. c. Increase diversification of community and local commercial nodes to serve adjacent residential neighborhoods. e. Intermix uses and densities in large-scale development projects. f. Site development to capitalize upon potential long-term transit improvements. g. Establish linkages among community areas, which may include pedestrian and vehicular paths, landscape, signage, other streetscape elements, open space, transitions, in form, scale, and density of development, and other elements. Goal LU 9: Achieve the development of a range of housing units that provides for the diverse economic, physical, and social needs of existing and future residents of Huntington Beach. Policy LU 9.1.4: Require that recreational and open space amenities be incorporated in new multi -family developments and that they be accessible to and of sufficient size to be usable by all residents. Policy LU 10.1.15: Require that regional commercial developments be designed to convey the visual sense of an integrated center by consideration of the following principles: a. Use of multiple building volumes and masses and highly articulated facades to reduce the visual sense of large scale "boxes"; b. Use of roofline or height variations to visually differentiate the building massing and incorporation of recesses and setbacks on any elevation above the second floor above grade; c. Siting of a portion of the buildings in proximity to their primary street frontage to convey a visual relationship to the street and sidewalks; d. Design of the exterior periphery of the structures to contain shops, restaurants, display windows, and other elements that provide visual interest to parking areas and the street elevation; e. Inclusion of a "public square" as a gathering place of public activity in multi - tenant regional centers; f. Clear identification of building entrances; g. Use of landscape that provides a three-dimensional character, h. Encourage the provision of public art, i. Inclusion of consistent and well -designed signage integrated with the building's architectural character, including pedestrian -oriented signage; and j. Design of parking structures to be visually integrated with the commercial buildings. Item 15. - 102 HB -516- Goal LU 11: Achieve the development of projects that enable residents to live in proximity to their jobs, commercial services, and entertainment, and reduce the need for automobile use. Policy LU 11.1.2: Limit commercial uses in mixed use development projects to those uses that are compatible with the residences. Policy LU 11.1.4: Require the incorporation of adequate onsite open space and recreational facilities to serve the needs of the residents in mixed use development projects. Policy L U 11.1. S: Require that mixed use developments be designed to mitigate potential conflicts between the commercial and residential uses, considering such issues as noise, lighting, security, and truck and automobile access. Policy LU 11.1.6: Require that the ground floor of structures that horizontally integrate housing with commercial uses locate commercial uses along the street frontage (housing may be located to the rear and/or on upper floors). Policy LU 11.1.7: Require that mixed use development projects be designed to achieve a consistent and high quality character, including the consideration of the: a. Visual and physical integration among the commercial and residential uses (Plates LU-3 and LU-4); b. Architectural treatment of building elevations to convey the visual character of multiple building volumes and individual storefronts and residential units. E. Noise Element Policy N 1.3.10: Require that mechanical equipment, such as air conditioning units or pool equipment, comply with the City's Noise Ordinance and Zoning and Subdivision Ordinance. Policy N 1.5. L Require that commercial and residential mixed use structures minimize the transfer or transmission of noise and vibration from the commercial land use to the residential land use. The design measures may include: (1) the use of materials which mitigate sound transmission; or (2) the configuration of interior spaces to minimize sound amplification and transmission. F. Urban Design Element Goal UP 1.1: Enhance the visual image of the City of Huntington Beach G. Utilities Element Objective U 5.1: Ensure that adequate natural gas, telecommunication, and electrical systems are provided. HB -51 7- Item 15. - 103 The proposed amendments to the General Plan land use designation and Specific Plan 13 are a mechanism to achieve the goals of economic growth and sustainable development. The amendments would allow for a regional commercial business along with a mixed use, high density development thereby increasing housing options for diverse household types, promoting alternative modes of transportation, creating a local sense of place, reducing infrastructure and maintenance costs, and allowing for more efficient use of land resources. The area has a variety of complementary uses that are critical to any vibrant community such as large scale commercial and entertainment uses, employment centers, a transit hub, and a college. Because of its location and unique features, the site would be appropriate in accommodating an infilI development that includes a regional commercial draw and a mixed - use project that is higher in density and compatible with the surrounding area. In doing so, multiple sustainable development principles are achieved, resulting in the social and economic well-being of the area. The benefits of mixed use developments include creating better places to live, work, and play, reducing dependence on the automobile, and lessening pollution and environmental degradation. The proposed project would be a regional commercial warehouse and sales outlet along with a mixed -use high -density development that offers a wide range of retail and housing opportunities and options, accommodating different age groups, income levels, and household types. The project is required to meet the City and California State Redevelopment Law for affordable housing obligations providing the equivalent of 15 percent of the units as affordable. In addition, the mixed -use component provides a concentration of living, shopping, entertainment, and employment opportunities within walking distance of the existing Bella Terra lifestyle development. Because the project is located in close proximity to different activities and uses, it provides opportunities and convenience for many households to use alternate travel modes such as walking and biking to complete their daily routines and errands. The proposed project, with the recommended conditions of approval, incorporates architectural and design principles to help ensure maximum compatibility of design with the existing Bella Terra, promote pedestrian -friendly entries and uses, and promote the use of high quality exterior materials. Structures on the project site would vary in heights in order to provide variety to the roofline and to reduce overall building massing. Development standards and design guidelines in Specific Plan No. 13 ensure that form, height, and treatment of future development convey an overall high level of quality. Maximum setbacks are established so that buildings are sited close to streets, the project will contain gathering places for public activity, and public amenities are required. Therefore, development at the project site would not conflict with the above General Plan goals and policies. Item 15. - 104 HB -518- CONDITIONS OF APPROVAL — SITE PLAN REVIEW NO. 10-001: 1. The Costco site plan, floor plans, and elevations received and dated August 9, 2010 shall be the conceptually approved design with the following modifications: a. An at -grade pedestrian connection with ADA access, shall be provided on -site along the west property line to connect to a future at grade bridge across the railroad tracks and flood control channel to the property to the west. The access point shall be a minimum of 10 feet wide and be located along the west property line at a point between 225 feet and 655 feet north of Edinger Avenue. The precise location of the connection shall be determined by the Director of Planning and Building, in collaboration with the applicant and the owner/developer of the property to the west, at the time the property to the west is approved for development. b. The 40 foot wide area between the south side of Costco and the residential parking garage shall be designed to accommodate a minimum 26 foot wide fire lane as well as an architecturally pleasing pedestrian walkway. The pedestrian walkway shall include enhanced landscaping, decorative hardscape, lighting, benches and other appropriate amenities to encourage pedestrian and bicycle activity. The required fire lane should be constructed of a driveable surface, subject to the approval of the Fire Chief. c. Revise the proposed circulation and traffic pattern in the drive aisle immediately north of the existing parking structure so that it remains a two-way drive aisle. Accordingly, the proposed angled parking should be revised to angle toward westbound traffic or be revised to 90 degree stalls with proper back-up space. Revise the proposed sign in this parking area to read "Costco Member Parking During Store Hours." d. Amend parking stalls to meet minimum required overall dimensions to achieve.no stall less than 17 feet in length with maximum two foot overhang into adjacent planter and 26 foot back-up space for all 90 degree stalls. In any place where the stall overhangs into a required planter, the planter width shall provide the minimum width required (three feet planter for parking areas less than 100 feet long or five feet planter for parking areas greater than 100 feet long), without relying on the vehicle overhang area. e. Provide a mechanism, such as removable bollards, to close the gap along the east side of the proposed gas station. The proposed design shall be decorative in nature and consistent with colors and materials established at Bella Terra mall. f. The main store entrance shall be embellished to improve it as the main focal point. Embellishments may consist of raising the roof height, increasing architectural projections, and providing richer accent materials instead of split face and smooth face concrete masonry units for wall materials. Other embellishments proposed by the applicant's architect may also be acceptable (DRB Recommendation). g. Additional building projections shall be incorporated on the north elevation. The projections shall also include a return to the roof area for a three-dimensional appearance instead of a flat plane (DRB Recommendation). HB -519- Item 15. - 105 h. The proposed texture clad metal panels shall include a smooth stucco finish instead of a rough stucco finish (IDRB Recommendation). i. The split face and smooth face concrete masonry units as the predominant exterior building material on the north and east elevations shall be revised to include or be accented with other exterior building materials, such as, brick, wood, sandstone, other native stone, smooth stucco, smooth plaster, tile, or other decorative material as listed in the Specific Plan (IDRB Recommendation). j. Enhanced paving materials, lighting, signage, and landscaping pattern and materials at driveway entrances and pedestrian connections should match existing color and materials found at Bella Terra Phase I. Enhanced paving materials at the store entrance shall be consistent with color, pattern, and design elements found at Bella Terra Phase I but may be stamped and scored concrete in lieu of pavers (IDRB Recommendation). k. The design of the metal pipe shopping cart corrals within the parking lot should be improved for architectural consistency with materials and colors found at Bella Terra Phase I (IDRB Recommendation). 1. The design of the shopping cart corrals within the parking structure shall be designed so carts do not roll out and appropriate signage directing patrons to the cart return area is provided. M. The width of all parking spaces adjacent to a wall more than forty-two (42) inches in height shall be increased by three feet for a total clear parking stall width of twelve feet. n. Revise the site plan to amend the note located south of the Costco building from "Proposed parking structure with apartments above," to "Proposed parking structure." o. A four foot high decorative wrought iron fence with shepherd hooks or other design elements to discourage climbing over, shall be installed on top of the three foot, nine inch high retaining wall along the west property line, subject to approval of the Police Department and Planning and Building Department. 2. The Village at Bella Terra Mixed Use Retail and Residential site plan, floor plans, and elevations received and dated June 17, 2010 shall be the conceptually approved design with the following modifications: a. An at -grade pedestrian connection with ADA access, shall be provided on -site along the west property line to connect to a future at grade bridge across the railroad tracks and flood control channel to the property to the west. The access point shall be a minimum of 10 feet wide and be located along the west property line at a point between 225 feet and 655 feet north of Edinger Avenue. The precise location of the connection shall be determined by the Director of Planning and Building, in collaboration with the applicant and the owner/developer of the property to the west, at the time the property to the west is approved for development. b. The 40 foot wide area between the south side of Costco and the residential parking garage shall be designed to accommodate a minimum 26 foot wide fire lane as well as an architecturally pleasing pedestrian walkway. The pedestrian walkway shall include enhanced landscaping, decorative hardscape, lighting, benches and other appropriate Item 15. - 106 xB -520- amenities to encourage pedestrian and bicycle activity. The required fire lane should be constructed of a driveable surface, subject to the approval of the Fire Chief. c. Provide continuation of the pedestrian walkway along the north side of the northeast corner of the residential units, then south to the "outdoor living room" space of the mixed use retail buildings. d. Post "No Trucks (Except Refuse Collection) Beyond This Point," at southwest comer of residential. e. Residential parking shall be assigned and provided within the proposed residential parking structure behind a secured gated entry. The ground floor of the residential parking garage shall provide a minimum of 84 out of the 94 required guest parking spaces. The remaining required guest parking spaces may be located on upper floors of the parking garage if accessible through call system on the residential gates or in the surface parking lot adjacent to the residential building. f. All residential units shall meet the minimum 500 square feet of interior floor area requirement. g. All residential floor plans shall demonstrate a minimum of 60 square feet of private open space with no dimension less than six feet. h. Ramp slopes in the parking garage shall be redesigned to meet the maximum slope permitted by code. Transition ramps which are also used as back-up space for parking stalls shall have a maximum slope of 5 percent. The maximum slope for transition ramps with no adjacent parking spaces shall be 10 percent. A ramp used for ingress and egress to a public street shall have a transition section at least 16 feet long and a maximum slope of 5 percent. i. Any parallel parking stalls shall be designed to meet the minimum maneuverable area between every two stalls as required by HBZSO Chapter 231. j. Provide bicycle parking as required by HBZSO Chapter 231. k. The width of all parking spaces adjacent to a wall more than forty-two (42) inches in height shall be increased by three feet for a total clear parking stall width of twelve feet. 3. Any buildings required to be LEED Silver Certified shall follow the appropriate progression steps and submittal forms, as recommended by LEED and the City's Energy Project Manager, throughout the plan check, permit issuance, and construction phases of the project. 4. Prior to issuance of grading permits, the following shall be completed: a. At least 14 days prior to any grading activity, the applicant/developer shall provide notice in writing to property owners of record and tenants of properties within a 1,000-foot radius of the project site as noticed for the public hearing. The notice shall include a general description of planned grading activities and an estimated timeline for commencement and completion of work and a contact person name with phone number. Prior to issuance of the grading permit, a copy of the notice and list of recipients shall be submitted to the Planning and Building Department. HB -521- Item 15. - 107 5. Prior to submittal for building permits, the following shall be completed: a. Submit a copy of the revised site plans, floor plans, and elevations pursuant to Condition No. 1 and Condition No. 2 for review and approval and inclusion in the entitlement file to the Planning and Building Department and submit digital photographs of all colored renderings, elevations, materials sample board to the Planning and Building Department for inclusion in the entitlement file. b. All venting and mechanical systems for any restaurants shall be designed and constructed to minimize potential odor impacts to the residential units above or surrounding the ground floor commercial uses. Any external venting or mechanical equipment not screened to the satisfaction of the City shall be subject to review and approval by the Design Review Board prior to submittal of building permits. 6. Final building permits for the Costco commercial structure(s) cannot be issued, until the following has been completed: a. Evidence of LEED Silver Certification or the equivalent for the 154,113 square foot Costco building has been verified by the applicant and all associated records and documentation shall be submitted to the Planning and Building Department and maintained for public review and inspection. 7. Final building permits for Village at Bella Terra Mixed Use Retail and Residential 1 structure(s) cannot be issued, until the following has been completed: a. Evidence of LEER Silver Certification for a minimum 1,000 square foot building has been applied for and/or completed. b. In addition to the structures to be LEED Silver certified, incorporating sustainable or "green" building practices into the design of all other proposed structures and associated site improvements is highly encouraged. Sustainable building practices may include (but are not limited to) those recommended by the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Program certification (http://www.usgbe.org/ DisplayPage.aspx? CategorvID=19) or Build It Green's Green Building Guidelines and Rating Systems (http://www.builditgreen,. org/index. cfin?fuseaction=guidelines). 8. All, Mitigation Measures outlined in the Mitigation Monitoring Program (Attached) for EIR No. 07-03 and Addendum to EIR No. 07-03 shall be adhered to. 9. The use shall comply with the following: a. Costco's hours of operation shall be limited to: 1) Warehouse and Tire Sales/Installations: Monday through Friday 10:00 AM to 8:30 PM; Saturday 9:30 AM to 6:00 PM; and Sunday 10:00 AM to 6:00 PM. The Warehouse may open at 9:00 AM for business members only. 2) Fuel Facilities: Monday through Friday 6:00 AM to 9:30 PM, Saturday 6:00 AM to 7:00 PM; and Sunday 6:00 AM to 6:00 PM, Item 15. - 108 xB -522- These hours are not intended to regulate nighttime stocking or delivery activities; however, all stocking activities outside of regular store hours shall take place on the interior of the store only. Deliveries by large Costco trucks, outside of normal store hours, shall take place only via trucks sealed at designated loading docks; deliveries by smaller vendor trucks may occur at the receiving door on the west side of the building. Any request to operate outside of these hours requires an Entitlement Plan Amendment application and an update to the traffic impact study conducted for Addendum to EIR No. 07-03. b. Costco shall direct large delivery trucks and fuel station delivery trucks to access the site from Center Avenue and follow the truck turning radius plan submitted with the conceptually approved plans dated August 9, 2010. All trucks shall utilize designated truck routes when arriving at or departing from the site_ c. All Bella Terra management employees, all Bella Terra tenant (retail, restaurant, and office) employees, and all Costco employees shall park on the top two levels of the six - level parking structure located on the north side of Bella Terra Area A. If the top two levels of the parking structure are full, employees shall park on other levels of the parking structure in descending order and in the most remote areas of the surface parking lot only as a last resort. In no case shall any employees park in the surface lot, containing approximately 557 spaces, to the north and northeast of the Costco building. d. In the event The Village at Bella Terra Mixed -Use Residential and Retail project does not begin construction within one month of the completion of demolition of the Montgomery Ward store and auto repair building, the site shall be hydroseeded for erosion control. Provision of temporary parking subject to approval by the Planning and Building Department and Public Works Department is also acceptable. e. Any re -use of the Costco site or request for future demising walls for the purpose of separating new tenant spaces within the Costco building shall require approval of a Site Plan Review by the Director of Planning and Building. Re -use of the site or building requires an Entitlement Plan Amendment application, an update to the traffic impact study conducted for Addendum to EIR No. 07-03, and an update to the approved Parking Management Plan. f There shall be no outside storage of storage containers or bins, vehicles, vehicle parts, equipment, or trailers. The occasional display of vehicles for sale through Costco's vehicle sales program is acceptable. There shall be no outside storage of pallets or trash compactors unless located behind screen walls. g. All prospective residential tenants should be provided with a disclosure regarding the mixed use nature of the project and this information shall be available in the leasing office and advertising literature. All potential residents should be required to sign a waiver or disclosure form that it is understood that The Village of Bella Terra is a mixed use project and that uses such as, restaurant, live entertainment, and alcohol sales, etc. may be established on the ground floor of the building. h. Each residential unit shall receive assign parking space(s), equal to the number of spaces required per the unit's bedroom count, within the residential parking garage. Parking space numbers shall not match unit numbers for safety purposes. 10 HB -523- Item 15. - 109 i. An on -site parking survey shall be conducted by a licensed traffic engineer to determine the parking demand in relation to the parking supply, prior to any one of the following events: 1) One year after the issuance of the Costco Certificate of Occupancy; or 2) The parking ratio falls below 4.2 spaces/1,000 square feet due to a reduction of spaces or an increase in demand; or 3) Any re -use or re -tenanting of any major anchor space. The term major anchor space shall be defined as any space greater than 70,000 square feet, including the movie theater The parking surveys shall consist of hourly counting Wednesday through Sunday for two consecutive weeks between the hours of 9:00 AM to 10:00 PM. If the survey demonstrates that the on -site parking is more than 95% occupied, at least three times per week, for a duration of at least two hours, then the property owner shall prepare a Parking Management Plan (PMP) and submit the PMP to the Planning and Building Department for approval. The PMP shall propose means for mitigating any identified on -site parking deficiency, including one or more of the following: re -striping parking spaces to add parking spaces, if feasible; expanding the on -site valet parking program; converting common areas not used for parking to parking uses, if feasible; providing employee parking at an offsite location with a shuttle service; promoting employee carpooling or alternative transportation options; or other option identified by the property owner and acceptable to the City. The parking management strategies, such as valet or shuttle service, shall only be implemented on the days of the week that the parking surveys reveal greater than 95% occupancy. 10. The development services departments (Building & Safety, Fire, Planning and Public Works) shall be responsible for ensuring compliance with all applicable code requirements and conditions of approval. The Director of Planning and Building may approve minor amendments to plans and/or conditions of approval as appropriate based on changed circumstances, new information or other relevant factors. Any proposed plan/project revisions shall be called out on the plan sets submitted for building permits. Permits shall not be issued until the Development Services Departments have reviewed and approved the proposed changes for conformance with the intent of the Planning Commission's action. If the proposed changes are of a substantial nature, an amendment to the original entitlement reviewed by the Planning Commission may be required pursuant to the provisions of HBZSO Section 241.18. 11. Site Plan Review No. 10-001 shall not become effective until the City Council approves General Plan Amendment No. 10-001 and Zoning Text Amendment No. 10-001. Item 15. - 110 HB -524- The owner of the property which is the subject of this project and the project applicant if different from the property owner, and each of their heirs, successors and assigns, shall defend, indemnify and hold harmless the City of Huntington Beach and its agents, officers, and employees from any claim, action or proceedings, liability cost, including attorney's fees and costs against the City or its agents, officers or employees, to attack, set aside, void or annul any approval of the City, including but not limited to any approval granted by the City Council, Planning Commission, or Design Review Board concerning this project. The City shall promptly notify the applicant of any claim, action or proceeding and should cooperate fully in the defense thereof. 12 HB -525- Item 15. - 111 - - N- �... O fir f BEACH 5.....> PUBLIC e.} WORKS DEPARTMENT DATE: AUGUST 16, 2010 PROJECT NAME: COSTCO WHOLESALE AND MIXED USE PLANNING APPLICATION NO. PLANNING APPLICATION NO.2010-061 ENTITLEMENTS: GENERAL PLAN AMENDMENT NO.2010-001, ZONING TEXT AMENDMENT NO.2010-001, SITE PLAN REVIEW NO.2010- 001, ENVIRONMENTAL ASSESSMENT NO. 2010-003 DATE OF PLANS: AUGUST 9, 2010 (COSTCO) & JUNE 17, 2010 (MIXED USE) PROJECT LOCATION: 7601 EDINGER AVENUE, HUNTINGTON BEACH (APN: 142- 073-26) PLAN REVIEWER: Vlf / BOB MILANI, SENIOR CIVIL ENGINEER TELEPHONE/E-MAIL: 714-374-1735 / BOB. MILANI(a),SURFCITY-HB.ORG PROJECT DESCRIPTION: GPA: AMEND SIZES OF SUBAREAS 5A AND 513 OF THE GENERAL PLAN; ZTA: AMEND SIZES OF AREA A AND B OF SPECIFIC PLAN NO. 13 AND ADD TIRE SALES/ INSTALLATION AND GAS STATION AS PERMITTED USES; SPR: DEMOLISH MERVYN'S AND MONTGOMERY WARDS STORE AND AUTO REPAIR TO DEVELOP A 154,113 SQ FT COSTCO WITH TIRE SALES/INSTALLATION CENTER, OUTSIDE FOOD SERVICE, AND GAS STATION, ALONG WITH CONCEPTUAL PLANS FOR UP TO 468 MULTI -FAMILY RESIDENTIAL UNITS AND AN ADDITIONAL 30,000 SQ FT OF RETAIL; EA: TO REVIEW THE PROPOSED AMENDMENTS AND PROJECT PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT TO DETERMINE THE NECESSARY ENVIRONMENTAL DOCUMENTATION. The site plan, floor plans and elevations received and dated August 9, 2010 (Costco) and June 17, 2010 (Mixed -use), shall be the conceptually approved layout with the following modifications: a. Additional exhibits shall be provided to depict all utility apparatus, such as but not limited to .back flow devices and Edison transformers on the site plan. In accordance with Section 3.4.3.E of Specific Plan No. 13, utility meters shall be screened from view from public rights -of -way. Electric transformers in a required front or street side yard ATTACHMENT NO. Item 15. - 112 HB -526- �- Page 2 of 8 shall be enclosed in subsurface vaults. Backflow prevention devices shall be prohibited in the front yard setback and shall be screened from view. (Code Requirement) b. Additional exhibits shall be provided to depict the location of all gas meters, water meters, electrical panels, air conditioning units, mailboxes (as approved by the United States Postal Service), and similar items on the site plan and elevations. If located on a building, they shall be architecturally designed into the building to appear as part of the building. They shall be architecturally compatible with the building and non - obtrusive, not interfere with sidewalk areas and comply with required setbacks. c. Enhanced paving within the public right-of-ways on Edinger Avenue and Center Avenue shall not be allowed. (Code Requirement). d. In accordance with Section 3.4.2.1 of Specific Plan No. 13, a drive aisle with a minimum width necessary for two-way traffic without adjacent parking from the driveway entry on Edinger Avenue shall provide an accessible travel way to the parking lots adjacent to Center Street. Landscaping along Edinger Avenue shall be provided in conformance with the increased width shown in the Edinger Avenue Precise Plan of Street Alignment to the maximum extent possible. e. Building pad transitions shall be designed to match up with the existing improvements on the adjacent parcels, and all modifications needed to allow for the match up shall be indicated on the site plan. Any required reconstruction, including asphalt areas, curb and gutter, landscaping and median islands, drainage infrastructure, drive aisle improvements and related work on adjacent parcels and outside the limits of the site plan parcel shall be shown on the improvement plans for the site. f. Project data information shall include the flood zone and the base flood, and lowest building floor elevations per NGVD29 datum or an equation schedule to show equivalence to that datum for coordination with available FEMA mapping. g. ADA path of travel running between or through parking areas or rows shall be a minimum of 10 feet in width or 6 feet in width for a raised sidewalk path. All driveway crossings shall conform to Title 24 and ADA requirements. THE FOLLOWING CONDITIONS ARE REQUIRED TO BE COMPLETED PRIOR TO ISSUANCE OF A DEMOLITION PERMIT: 2. The applicant shall follow all procedural requirements and regulations of the South Coast Air Quality Management District (SCAQMD) and any other local, state, or federal law regarding the removal and disposal of any hazardous material including asbestos, lead, and PCBs. These requirements include but are not limited to; survey, identification of removal methods, containment measures, use and treatment of water, proper truck hauling, disposal procedures, and proper notification to any and all involved agencies (Mitigation Measure). 3. Pursuant to the requirements of the South Coast Air Quality Management District, an asbestos survey shall be completed (Mitigation Measure). 4. The applicant shall complete all Notification requirements of the South Coast Air Quality Management District (Mitigation Measure). 5. A truck hauling and routing plan for all trucks involved in asbestos removal and demolition of the existing structures shall be submitted to the Department of Public Works and approved by the Director of Public Works (Mitigation Measure). HB -527- Item 15. - 113 Page 3 of 8 6. The applicant shall disclose the method of demolition on the demolition permit application for review and approval by the Building and Safety Director (Mitigation Measure). 7. The project Storm Water Pollution Prevention Plan (SWPPP) shall include interim provisions for the demolition operations. THE FOLLOWING CONDITIONS ARE REQUIRED TO BE COMPLETED PRIOR TO ISSUANCE OF A GRADING PERMIT: 8. All vehicular access rights to Edinger Avenue and Center Avenue shall be released and relinquished to the City of Huntington Beach, except at locations approved by the Director of Planning, or as restricted by existing restricted access requirements as shown on previously recorded maps, easements or dedications. 9. The subdivider shall provide evidence and recorded documentation to the satisfaction of the City of the vehicular and pedestrian access rights, the right to construct off -site improvements, the right to operate, and maintain the private storm drain and sewer systems, and the right for the City and the Property Owner's Association to access and perform maintenance on the improvements located within the Southern California Edison right-of-way between Center Drive and the northerly map boundary. Approval from Southern California Edison must also be obtained for any changes, quitclaims or realignments of existing easements. 10. The sewer and portions of the storm drain system located onsite shall be private and maintained by the Property Owners Association. 11. The Public Works Department shall review and approve the final geometries and design of onsite circulation and truck delivery drive aisles for reciprocal access and consistency with any new parcels created or reconfigured. 12. If phasing of construction or improvements is proposed, a detailed phasing plan shall be submitted. The phasing plan shall address all on and off -site infrastructure improvements, timing of building construction, and methods of providing emergency as well as customer access to existing tenants on adjacent parcels. Any future phasing plan shall be subject to review and approval by the Directors of Public Works, Fire, Building and Safety, and Planning. 13. The applicant shall prepare a Groundwater Hydrology Study to determine the lateral transmissivity of area soils and a safe pumping yield such that dewatering activities do not interfere with nearby water supplies. Based on the Groundwater Hydrology Study, the Geotechnical Hydrogeologic, or other qualified Engineer shall determine whether permanent groundwater dewatering is feasible within the constraints of a safe pumping level. The project Applicant shall incorporate the qualified Engineer's designs and recommendations in project plans. If safe groundwater dewatering is determined to not be feasible, permanent groundwater dewatering shall not be implemented. The City's Director of Public Works shall approve or disapprove of any permanent groundwater dewatering based on the Groundwater Hydrology Study and qualified Engineer recommendations. 14. The applicant shall provide proof that driven friction piles extending into the stiff and/or dense natural soils encountered below depths of about 45 to 50 feet below the existing grade are to be utilized. Mitigation may be required for friction piles for the proposed buildings at their current locations or at other locations within the project site, for minor structures such as low retaining walls and freestanding walls, as well as for building floor slabs and other concrete Item 15. - 114 HB -528- Page 4 of 8 walks and slabs adjacent to the buildings, subject to the approval of the Public Works Director (Mitigation Measure). 15. The applicant shall ensure that any required import material consists of relatively non - expansive soils with an Expansion Index of less than 35. The imported materials should contain sufficient fines (binder material) so as to be relatively impermeable and result in a stable subgrade when compacted. All import materials shall be approved, subject to the approval of the Public Works Director (Mitigation Measure). 16. The applicant shall provide and execute a Landscape License Agreement for maintenance of landscaping within the public right-of-way. 17. A Precise Grading Plan, prepared by a Licensed Civil Engineer, shall be submitted to the Public Works Department for review and approval. The following shall be shown on the grading plans (PW): a. Hardscape improvements, including, but not limited to, paving, sidewalk, curb and gutters, decorative paving, signing and striping, and other features to be constructed by the plan shall be shown with horizontal and vertical dimensions and elevations. b. Private sewer improvements, including laterals up to each commercial unit, shall be designed per the final approved sewer study and City Standards. c. A composite utility plan showing the relationship of all utilities proposed onsite shall be shown for reference. d. Private water service improvements beyond the public water system appurtenances shall be shown for reference only. e. Entry/exit throats of appropriate length and width shall be provided at each project access point to facilitate safe, convenient, and unobstructed vehicle access. Areas adjacent to these entry/exit points shall be designed to provide appropriate stopping sight distance for vehicles, trucks, pedestrians and bicyclists. f. A new 12 inch public waterline on the north side of the development, approximately 600 feet in length tying into the existing 10 inch public waterline on the north side, that serves the property from Center Avenue, and the existing public 12 inch public waterline on the east side of the development, located at the northwest corner of the Mervyn's site, shall be required per Water Division Standards. g. A new 12 inch public waterline on the west side of the development, approximately 1100 feet in length tying into the new 12 inch public waterline on the north side of the development and extended southerly, shall be required per Water Division Standards. h. A new 12 inch public waterline on the south of the development approximately 300 feet in length tying into the new 12 inch waterline on the west side of the development and the existing 12 inch waterline on the south side of the development, that serves the property from Edinger Avenue, shall be required per Water Division Standards. 18. Full frontage infrastructure improvements shall be designed, including, but not limited to, curb and gutter, sidewalk, street lighting, raised medians, new traffic signals, traffic signal interconnect systems, signing and striping, drainage improvements and handicapped access ramps. All work shall be in full conformance with the approved traffic impact analysis, the Edinger Corridor Specific Plan and Precise Plan of Street Alignment, current City Standards, HB -529 Item 15. - 115 Page 5 of 8 Caltrans standards where applicable; and the approved Specific Plan No. 13 for the Bella Terra Mail and associated technical studies. 19. Street Lighting, traffic signals, signing, striping, street improvements, traffic control, landscaping and other infrastructure improvements shall be shown on separate sheets, 24" by 36", and shall conform to City of Huntington Beach standards. Plans shall be submitted for review and final approval by Public Works. 20. Drive aisle spacing and proposed drive through aisles dimensions shall be supported by an approved traffic queuing study to insure that waiting vehicles do not block adjacent aisles. 21. Traffic Control Plans, prepared by a Licensed Civil or Traffic Engineer, prepared per the City's guidelines (signed and stamped), shall be submitted to Public Works and Caltrans for review and approval, for work within City's right-of-way. 22. Final Design hydrology and hydraulic studies for both on -site and off -site facilities shall be prepared and submitted for Public Works review and approval. The hydrologic and hydraulic analysis shall include, but not be limited to facilities sizing, limits of attenuation, downstream impacts and other related design features. Runoff shall be limited to pre-1986 Q's, which must be established in the hydrology study. If the analyses shows that the City's current drainage system cannot meet the volume needs of the project runoff, the developer shall be required to attenuate site runoff to an amount not to exceed the 25-year storm as determined using pre-1986 design criteria. As an option, the developer may choose to explore low -flow design alternatives, downstream attenuation or detention, or upgrade the C"rty's storm water system to accommodate the impacts of the new development, at no cost to the City (Mitigation Measure). 23. The Hydrology and Hydraulics Study for the City approved Site Development and Drainage Plan shall reduce peak runoff rates to the existing conditions 25-year storm event peak runoff rate; the design capacity of the City storm drainage channels (Mitigation Measure). a. Prior to receiving a precise grading permit, the project Applicant shall: Prepare a Site Development and Drainage Plan ii) Prepare an existing and proposed project Hydrology and Hydraulics Study based on the Site Development and Drainage Plan. The existing hydrology shall include an evaluation of run-on to the project site because of spillage from the Bella Terra Mall drainage system. iii) Implement stormwater detention BMPs, based on the Hydrology and Hydraulics Study, for all storm events up to the 100-year storm event, to ensure that peak flow rates from the project site to the off -site storm drain system do not exceed the existing 25-year storm event peak flow rate. iv) Analyze existing street Flow capacity to determine exceedance of any design criteria and guidelines from the City's MPD. v) Additionally, stormwater detention BMPs shall be implemented such that areas draining to the existing piped storm drain systems do not exceed existing peak flow rates for the 10 and 25-year storm events and that peak flows to local streets do not exceed MPD and City design guidelines. vi) In accordance with the MPD, streets must be designed to leave at least one - lane free of ponded water in each direction for conveyance of the 10-year storm event, must be contained within the curbs for the 25-year storm event, cannot Item 15. - 116 HB -530- Page 6 of 8 exceed 0.2 foot above the street curbs for the 50-year storm event, and cannot exceed 0.5 foot above the street curbs for the 100-year storm event. vii) The internal storm drain system must be adequate to detain sufficient stormwater runoff such that the street flow requirements of Center Street or Edinger Avenue are not exceeded. viii) Surface ponding or sump areas on the site will be limited to a maximum depth of 8-inches, and shall be distributed to areas away from building pads, and remote areas of parking lots. ix) Surface ponding or sump areas shall not exceed 1/3 of the proposed parking area in surface area. If there are proposed underground parking structures, they shall not be used for retention or storage, unless approved by the Director of Public Works_ x) Stormwater retention areas shall be analyzed for back to back 24-hour, 100- year storm events per the requirements of the Orange County Flood Control Manual. xi) The final Hydrology and Hydraulics Study shall identify and evaluate the routing through the project site in relation to the new buildings, landscaping, utilities, and others. Sufficient detention, provided to mitigate constrained capacities in the Bella Terra Mall drainage system, shall be implemented for run-on from north of the Montgomery Ward site onto the project site. xii) The final Hydrology and Hydraulics Study shall incorporate all NPDES requirements in effect at the time that the precise grading permit is anticipated to be issued or when the study is accepted as complete. xiii) Precise final grading and street improvement plans and studies shall be submitted to the Public Works Department for review and approval. The project developer shall incorporate into a final Drainage Plan all recommendations and requirements identified the review of the final Hydrology and Hydraulics Study and identified stormwater detention requirements/features. Following grading, excavation, and installation of utilities, the Public Works Department shall inspect the project site and verify that project site drainage is in accordance with the Final Drainage Plan and that required detention/storm drain system improvements have been implemented. 24. Plans and studies shall be submitted to the City Engineer for approval and the project developer shall incorporate into a Final Drainage Plan, all recommendations and requirements identified by the City Engineer, based on their review of the final Hydrology and Hydraulics Study and identified stormwater detention requirements/features (Mitigation Measure). 25. Non-residential structures, including utilities and sanitary facilities must be elevated or floodproofed to below the flood depth and capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy as required by Chapter 222 of the City of Huntington Beach Zoning and Subdivision Ordinance (Mitigation Measure). 26. A portion of the project is designated on the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map as a Special Flood Hazard Area (SFHA) "A" zone, and is therefore subject to flooding during a 100 year storm event. The design elevations for this project will be 2-feet or higher above the Base Flood Elevation derived from the project drainage study, or the best available design studies accepted by the City of Huntington Beach. Should additional flood proofing be required, the developer shall conform to all HB -531- . Item 15. - 117 Page 7 of 8 Federal, State and City requirements for flood -proofing the buildings against the 100-year storm event. 27. City of Huntington Beach -approved Water Quality Management Plan shall be prepared by a Licensed Civil Engineer in accordance with the California Regional Water Quality Control Board, Santa Ana Region, Order No. R$-2009-0030, NPDES No.. CAS618030 Waste Discharge Requirements, including any recent updates, and Orange County DAMP requirements for a Project WQMP and measures as described below. A preliminary WQMP shall be prepared to accompany the submittal of the approved Site Plan. A final WQMP shall be prepared to satisfy the requirements of the DAMP and City LIP, and shall conform to the Permit Requirements Section XII, "New Development," and associated subsections of Order No. R8-2009-0030. The final WQMP shall incorporate water quality BMPs and LTD's for all improved phases of the proposed project. Prior to receiving a precise grading permit, three signed copies and an electronic copy on CD (.pdf or .doc format) shall be submitted to the Public Works Department. The final WQMP shall include the following additional requirements: a. Infiltration -type BMPs shall not be used. b. Wet swales and grassed channels shall not be used because of the slow infiltration rates of project site soils and potentially shallow depth to groundwater. C. Dry and wet detention basins and constructed wetlands are not recommended for the project site. d. If proprietary Structural Treatment Control devices are used, they shall be sited and designed also in compliance with the manufacturers design criteria. e. Treatment BMPs shall be selected such that standing water drains within 24 hours'or as required by the City's vector control. f. Excess stormwater runoff shall bypass the treatment BMPs unless they are designed to handle the flow rate or volume from a 100-year storm event without reducing effectiveness. g. Effectiveness of any treatment BMP for removing. the pollutants of concern shall be documented. h. The WQMP shall incorporate water efficient landscaping using drought tolerant, native plants in accordance with Landscape and Irrigation Plans as set forth by the Association (see below). i. Building materials shall minimize exposure of bare metals to stormwater. Copper or Zinc roofing materials, including downspouts, shall not be used. Bare metal surfaces shall be painted with non -lead containing paint. j. Proprietary stormwater treatment systems maintenance shall be in accordance with the manufacturer's recommendations. If a non-proprietary treatment system is used, maintenance shall be in accordance with standard practices as identified in the CASQA (2009) handbook, City BMP guidelines or The Village at Bella Terra Mitigation Monitoring and Reporting or other City -accepted guidance. k. Reporting requirements: the Association shall prepare an annual report and submit the annual report to the City of Huntington Beach documenting the BMPs operations and maintenance conducted that year. The annual report shall also address the potential system deficiencies and corrective actions taken or planned. Item .15. - 118 HB -532- Page 8 of 8 Where applicable and subject to the review and approval of the City Engineer, use of porous concrete or asphalt (if acceptable to the Geotechnical Engineer) or other pervious pavement for driveways, paths, sidewalks, and courtyardslopen space areas to the maximum extent is encouraged. THE FOLLOWING CONDITIONS ARE REQUIRED TO BE COMPLIED TO DURING DEMOLITION, GRADING AND SITE DEVELOPMENT: 28. The applicant shall ensure that disturbed material and unsuitable natural soils such as peat deposits encountered immediately below the fill should be excavated and replaced as properly compacted fill. All required additional fill should be properly compacted, subject to the approval of the Public Works Director (Mitigation Measure). 29. The applicant shall ensure that the excavated soils be allowed to dry prior to placement as compacted fill, and that the soils at the bottom of the excavations also be allowed to dry as necessary prior to placement of compacted fill. As an alternative to drying the exposed natural soils at the bottoms of the required excavations, the exposed soils shall be over - excavated and replaced with 1 to 1 Y2 feet of 1 '/2 inch crushed rock to provide a base for the compaction of the required backfill. Compliance with this mitigation shall be subject to the approval of the Public Works Director (Mitigation Measure). 30. If during demolition, grading and/or construction any soil and/or groundwater contamination are found or suspected on -site, construction in the area shall cease, appropriate Health and Safety procedures shall be implemented, and appropriate agencies shall be notified. Any hazardous substances contained on the site shall be identified and removed in compliance with City, State, and Federal standards (Mitigation Measure). THE FOLLOWING CONDITIONS ARE REQUIRED TO BE COMPLETED PRIOR TO ISSUANCE OF A BUILDING PERMIT: 31. The developer shall submit a completed FEMA Elevation Certificate signed by a registered Civil Engineering certifying compliance with all Federal, State and City flood protection requirements. 32. Final design elevations of grading shall not vary from elevations shown on the approved Site Plans (preliminary grading plans) by more than one (1) foot. THE FOLLOWING CONDITIONS ARE REQUIRED TO BE COMPLETED PRIOR TO FINAL OCCUPANCY OF THE FIRST RESIDENTIAL UNIT OR RETAIL BUILDING: 33, The medians in Edinger shall be inspected, approved and deemed complete by the City of Huntington Beach which includes; replaced soil, irrigation systems, perimeter roottmoisture barriers, colored and stamped concrete, plant material and all required utilities. The medians shall be maintained for a period of 15 months total after installation is deemed complete. 34. The park, fountains, pools, enriched paving and all auxiliary decorative structures, artwork, landscape plantings and irrigation systems indicated as a part of the residential and retail project shall be completed. HB -533- Item 15. - 119 IIIF ;7 .� ,.1 , • i As part of the previous project and EIR, mitigation measures were required to reduce potential impacts to the greatest extent feasible. These mitigation measures were set forth in the approved Mitigation Monitoring and Reporting Program (MNW) for the previous project. Similarly, mitigation measures were identified to reduce potential impact of the revised project to the greatest extent feasible. Applicable mitigation measures are discussed in each chapter of this Addendum, with the impact for which the measures are necessary. As part of the preparation of the Addendum, primarily due to the format of the document, the numbering of mitigation measures has changed from the previous EIR, as shown in this Addendum A comprehensive comparison of mitigation measures required for both the previous and revised projects, including changes to numbering, is provided below. As with the previous MMRP, the following table identifies required mitigation measures by resource area. Similar to what was prepared for the previous project, this table provides the specific mitigation monitoring requirements, including implementation documentation, monitoring activity, timing and responsible monitoring parry. Verification of compliance with each measure is to be indicated by signature of the mitigation monitor, together with date of verification. The MMRP shall be used by the City of Huntington Beach staff responsible for ensuring compliance with mitigation measures associated with revised project. Monitoring shall consist of review of appropriate documentation, such as plans or reports prepared by the parry responsible for implementation or by field observation of the mitigation measure during implementation. The revised project Applicant and the Applicant's Contractor shall be responsible for implementation of all mitigation measures, unless otherwise noted in the table. City of Huntington Beach, The Revised Village at Bella Terra A-t Addendum to The Village at Bella Terra Environmental Impact Report T HMENT Item 15. - 120 HB -534- M APpend�xARevisedMtt�gat►on,M"onitormg�andReporting;:Program-��,,, ���s`�;_.., �� � = ����,���,-'�,�i ��.,: MM4.1.1 MM4.1-1 To the extent feasible, the Applicant shall use non- Project building Review and approve Plan check prior Planning reflective fagade treatments, such as matte paint or plans building plans for to issuance of glass coatings. Prior to issuance of building permits inclusion of features building permit for the proposed project, the Applicant shall indicate provision of these materials on the building plans. MM4.2.1 MM4.2-1 During construction, operators of any gas or diesel Contract language fueled equipment, including vehicles, shall be and notes on encouraged to turn off equipment if not in use or left grading and idle for more than five minutes. building plans MM4.2.2 MM4.2-2 The Applicant shall require by contract specifications that the architectural coating (paint and primer) products used would have a low VOC rating. Contract specifications shall be included in the proposed project construction documents, which shall be reviewed by the City prior to issuance of a building permit. Contract language and notes on building plans Review and approve contract specifications, grading and building plans for inclusion Review and approve contract specifications and building plans for inclusion Plan check prior to issuance of a grading permit Perform periodic field check during construction to ensure compliance Plan check prior to issuance of a building permit Planning Planning MM4.2-3 MM4.2-3 The Applicant shall require by contract specifications Contract language Review and approve Plan check prior Planning that electrical outlets are included in the building and notes on contract to issuance of a design of the loading docks to allow use by building plans specifications and building permit refrigerated delivery trucks. The proposed project building plans for Applicant shall require that all delivery trucks do not inclusion idle for more than five minutes. If loading and/or unloading of perishable goods would occur for more than five minutes, and continual refrigeration is required, all refrigerated delivery trucks shall use the electrical outlets to continue powering the truck A-2 City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report 1. w rn - - o o- o 0 0 0 • o o •'-• o o• o 0 `E�9 # +'..,�,'r'a� ds;;r r+. »f Y. ;1 .. iQq,� ,..:».' %fi/w`.• � £ �.. <h^ .., .';rt., ,.�,,,:.;,•x„ :i-'. �:� � i'<� � .. s;y � r� ..�#. a:.- k:, v % .�_>w3i r '.s .<,. a s. a , s 'F� �.,:. .�"`��,�+� , v� sv �. �M g° , ;� ,a7, 2 }'.�z` y py�,n 11►lple on ,RtsponS�le' C4 Measure No.> :MNa 141ease _ DocfdHon zMori A 4fimt g refrigeration units when the delivery truck engine is turned off. MM4.24 MM4.2-4 The proposed project would provide plentiful short- Contract language Review and approve Plan check prior Planning and long-term bicycle parking facilities to meet peak and notes on contract to issuance of a demand (generally one bike rack space per building plans specifications and building permit 20 vehicle/employee space). building plans for inclusion MM4.2.5 MM4.2-5 All retail and residential facilities shall ensure that Contract language Review and approve Plan check prior Planning current transit schedules are available in common and notes on contract to issuance of a areas for the use of employees and residents. building plans specifications and building permit building plans for inclusion MM4.2-6 MM4.2.6 All retail facilities in excess of 150 employees shall Contract language Review and approve Plan check prior Planning provide preferential vanpool/carpool employee and notes on contract to issuance of a parking, building plans specifications and building permit building plans for inclusion MM4.2-7 MM4.2-7 All retail facilities in excess of 150 employees shall Contract language Review and approve Plan check prior Planning be required to provide free parking passes to eligible and notes on contract to issuance of a employees. building plans specifications and building permit building plans for inclusion MM4.2-8 MM4.2-8 All residential and nonresidential coatings applied Contract language Review and approve . Plan check prior Planning during subsequent maintenance activities shall be and notes on contract to issuance of a required to be low VOC paints with a reduction of at building plans specifications and building permit least 20 percent. building plans for inclusion MM4.2.9 MM4.2-9 Residential and Retail development shall implement Contract language Review and approve Plan check prior Planning waste reduction and recycling measures such that and notes on contract to issuance of a waste diversion from landfills equals 65 percent, the building plans specifications and building permit current City Standard for waste diversion. building plans for inclusion City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report A-3 Appendix A fiey�secf Mrtigaf�an Monitonng'and Repor#mgPragrgm �'$ f �� �� ay � � .� Yet' ��, � ;� � � �, ,�ri u� - • o a e o • e • • • - • e • o a • Mritgniion, � +!!!��►�' .. � � �� � s� � � �,, �.,�.0 Imple�enf�Hon : �.� �$ � � ��: � � �: Respans�le ; ; Com a A. Meas%re'Na AiteasureNo` M nMeasuner x t?octimenta#on "ht„ A �rM I%� �� MM4.2-10 MM4.2-10 Residential and Retail development shall use Contract language Review and approve Plan check prior Planning drought tolerant plants for landscaping. The following and notes on contract to issuance of a are suggestions to enhance the benefits of this building plans specifications and building permit measure. Evergreen trees on the north and west building plans for sides afford the best protection from the setting inclusion summer sun and cold winter winds. Additional considerations include the use of deciduous trees on the south side of the house that will admit summer sun; evergreen plantings on the north side will slow cold winter winds; constructing a natural planted channel to funnel summer cooling breezes into the house. Neighborhood CCR's not requiring that front and side yards of single-family homes be planted with turf grass. Vegetable gardens, bunch grass, and low —water landscaping shall also be permitted, or even encouraged. MM4.2.11 MM4.2-11 Residential and Retail development shall implement Contract language Review and approve Plan check prior Planning water reduction features such that water usage is and notes on contract to issuance of a reduced by 20 percent from the unmitigated estimate building plans specifications and building permit emissions of 234 MTCO2e. Water reduction features building plans for may include, but are not limited to: inclusion • Installation of water conserving irrigation systems such that watering times can be varied and that the system will shut off during rain events ■ Installation of water saving appliances ■ Installation of low -flow showers and toilets MM4.2-12 MM4.2-12 Residential and Retail developments shall implement Contract language Review and approve Plan check prior Planning energy saving measures such that natural gas usage and notes on contract to issuance of a is reduced to at least 15 percent below 2008 Title 24 building plans specifications and building permit standards. This could include, but is not limited to, building plans for the following: inclusion ® Use of light colored roofing material e Planting trees appropriately to provide shading A-4 N w City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report CD to N -P R .. during the heat of the day ® Increase energy efficiency of insulation, doors, and windows MM4.2-13 MM4.2-13 Electrical outlets shall be located outside in the front Contract language Review and approve Plan check prior Planning and rear of both residential and retail development and notes on contract to issuance of a such that 20 percent of landscaping equipment can building plans specifications and building permit be electrically powered. building plans for inclusion MM4.2.14 MM4.2-14 Residential and Retail developments shall implement Contract language Review and approve Plan check prior Planning energy saving or incorporate renewable resources and notes on contract to issuance of a such that a minimum of 30 percent of the project's building plans specifications and building permit total estimated unmitigated electrical consumption of building plans for 1,777 MTCO2, is offset. Energy saving features may inclusion include, but are not limited to the following: ® Use of Energy Star appliances o Use of energy saving lighting and light fixtures including dimmer switches, motion sensors, and timers s Addition of photovoltaic cells to offset onsite electrical usage ® Instillation of energy efficient HVAC units MM3.1-1 MM4.3.1 Nesting habitat for protected or sensitive avian species: 1, Vegetation removal and construction shall occur Developer shall submit construction schedule (including Review schedule and field survey report, and as Plan check prior to issuance of a grading permit Planning I between September 1 and January 31 whenever grading activities) necessary, review feasible. as evidence of and approve plans construction indicating 2. Prior to any construction or vegetation removal overlap with construction limits between February 15 and August 31, a nesting breeding season. survey shall be conducted by a qualified biologist of all habitats within 500 feet of the construction area. Survevs shall be conducted no less than City of Huntington Beach, The Revised Village at Bella.Terra Addendum to The Village at Bella Terra Environmental Impact Report A-5 01 N to Appenduc A`,Revised Mrttgation Moniforing�and°Reporting„Program t � ��s �� _� `. ,,,g��� � �� $ � '�"`,r�� � .Nt ` "Revised Previous Project .Project. ecWe o,, ; MeasureNo., � � Apt rh"!2, 106 Measure - , n - _ -Documentation = Morr A 7in+1 ;Monitor Ver�Sccdfon DpfeN, 14 days and no more than 30 days prior to If construction Perform periodic During Planning commencement of construction activities and occurs during field check to construction surveys will be conducted in accordance with relevant breeding, ensure compliance CDFG protocol as applicable. If no active nests developer shall are identified on or within 500 feet of the present a survey construction site, no further mitigation is report (prepared by necessary. A copy of the pre -construction survey a consultant shall be submitted to the City of Huntington approved by the Beach. If an active nest of a MBTA protected City) to the City species is identified onsite (per established prior to issuance of thresholds) a 250-foot no -work buffer shall be a grading permit. If maintained between the nest and construction nests are found, activity. This buffer can be reduced in developer shall consultation with CDFG and/or USFWS. submit plans 3. Completion of the nesting cycle shall be identifying nest determined by qualified ornithologist or biologist. locations and limits of construction activities. MM3.1-2 MM4.4-1 The Applicant shall arrange for a qualified professional archaeological and paleontological monitor to be present during all project -related Proof of retention of archaeological and paleontological Verify retention of qualified monitors Plan check prior to issuance of grading permit Planning ground -disturbing activities. In addition, all monitor construction personnel shall be informed of the need Periodic field check Throughout Planning to stop work on the project site in the event of a to ensure monitors ground -disturbing potential find, until a qualified archaeologist or are present activities paleontologist has been provided the opportunity to assess the significance of the find and implement appropriate measures to protect or scientifically remove the find. Construction personnel will also be informed that unauthorized collection of cultural resources is prohibited. MM3.1.3 MM4.4-2 If archaeological or paleontological resources are Notes on grading Review and approve Plan check prior Planning discovered during ground -disturbing activities, all plans grading plans for to issuance of construction activities within 50 feet of the find shall inclusion grading permit A-6 City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmenfal Impact Report CD c� tw AppendixARevised Mt#igat►on �IVloni#tiring and Reporting Program cease until the arch aeologistlpaleontologist evaluates the significance of the resource. In the Research design Review and approve Throughout Peer review absence of a determination, all archaeological and and recovery plan, research design and ground disturbing by three paleontological resources shall be considered if required recovery plan activities County - significant. If the resource is determined to be certified significant, the archaeologist or paleontologist, as professionals appropriate, shall prepare a research design for recovery of the resources in consultation with the State Office of Historic Preservation that satisfies the requirements of Section 21083.2 of CEQA. The archaeologist or paleontologist shall complete a report of the excavations and findings, and shall submit the report for peer review by three County - certified archaeologists or paleontologists, as appropriate. Upon approval of the report, the City shall submit the report to the South Central Coastal Information Center at California State University, Fullerton, and keep the report on file at the City of Huntington Beach. MM3.1.4 MM4.4.3 In the event of the discovery of a burial, human bone, or suspected human bone, all excavation or grading in the vicinity of the find shall halt Notes on grading plans Review and approve grading plans for, inclusion Plan check prior to issuance of grading permit Orange County Coroner immediately, the area of the find shall be protected, and the Developer shall immediately notify the City Throughout Planning and the Orange County Coroner of the find and ground -disturbing comply with the provisions of P.R.C. Section 5097. If activities the human remains are determined to be prehistoric, the Coroner will notify the NAHC, which will determine and notify a Most Likely Descendent (MLD). The MLD shall complete the inspection of the site within 24 hours of notification, and may recommend scientific removal and non-destructive analysis of human remains and items associated with Native American burials. City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report A-7 Appe,'ndtx A�ttevtsedAMitigat�on�Monrforrng�and Reporting Program � . �'•,� $��� K� �.�, �, `,r.;� ��_.z ��� '�_ MM3.1.5 MM4.5.1 The grading plan prepared for the proposed project Notes on grading shall contain the recommendations of the final soils plan and building and geotechnical report. These recommendations plans shall be implemented in the design of the project, including but not limited to measures associated with site preparation, fill placement, temporary shoring and permanent dewatering, groundwater seismic design features, excavation stability, foundations, soil stabilization, establishment of deep foundations, concrete slabs and pavements, surface drainage, cement type and corrosion measures, erosion control, shoring and internal bracing, and plan review. Review and approve grading and building plans for inclusion of final soils and geotechnical recommendations Plan check prior to issuance of a grading permit Public Works Building and Safety MM4.3-1 MM4.6.1 In the event that soil and/or groundwater contamination that could present a threat to human health or the environment is encountered during Risk Management Plan & Site Health and Review and approve any grading plans for inclusion Plan check prior to issuance of any grading Fire construction in the project area, construction I Safety Plan permit activities in the immediate vicinity of the contamination shall cease immediately. For soil and/or groundwater impacts, Risk Management Plan(s) shall be submitted to the appropriate agencies (e.g., Huntington Beach Fire Department HBFD, Orange County Health Care Agency OCHCA, Air Quality Management District AQMD, Regional Water Quality Control Board RWQCB) for review and approval. The Plan(s) shall (1) identify the contaminants of concern and the potential risk each contaminant would pose to human health and/or the environment during construction and post - development and (2) describe measures to be taken to protect workers, and the public, and/or the environment from exposure to potential site hazards. Such measures could include a ranqe of options, A-8 N J City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report CD N 00 Rn 'llr � ...,� N � 101 �: €,�" � �; r � � � �_ �. � are .� � , .. ; it a _ Appendix A Reutsed MittgattonMoni#Dung a nd Reportsng' Program_ including, but not limited to, physical site controls during construction, remediation, long-term monitoring, post -development maintenance or access limitations, or some combination thereof. A Site Health and Safety Plan that meets California Occupational Safety and Health Administration requirements shall be prepared and in place prior to commencement of work in any contaminated area. MM4.3.2 MM4.6-2 Prior to the issuance of grading permits, the project Methane Testing Review and Prior to Fire shall comply with HBFD City Specification No. 429, Plan approval of testing commencement - Methane District Building Permit Requirements. A plan of sampling plan for the testing of soils for the presence of methane gas shall be prepared and submitted by the Applicant to the HBFD for review and approval, prior to the commencement of sampling. If significant Notes on building Review and approve Prior to issuance Fire levels of methane gas are discovered in the soil on and methane plans building and of any grading the project site, the Applicant's grading, building and methane gas plans permit and during methane plans shall reference that a sub -slab for appropriate construction methane barrier and vent system will be installed at documentation the project site per City Specification No. 429, prior to plan approval. If required by the HBFD, additional methane mitigation measures to reduce the level of methane gas to acceptable levels shall be implemented. MM4.3.3 MMC6.3 Prior to project implementation, the Applicant shall Soil Testing Work Review and approve Prior to issuance Fire submit for approval a soil testing and management Plan soil testing work of any grading work plan to the appropriate agencies (including the plan permit HBFD, OCHCA, AQMD, RWQ_.CB) for review and approval, All native and imported soils associated Contract language Review and approve Prior to issuance Public Works with the proposed project site shall meet the haul route plans of haul permits standards outlined under the City's Specification No. 431-92 prior to the approval of grading plans and building plans by the HBFD, and any other appropriate federal, state, local requirements. Additionally, all work at the project site shall conform to the Citv's Public Works Department requirements City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report :IN Rn v, w Appendix A Revised M►t�gafion Momtoring,anci Reporfmg�Program ,.. ` , �.,� � �+..,. _.��r;� �{ .. � '.. �" �'" :ir r,x�. .. .�-1�UHgahort Measure; (i.e., haul route permits). MM3.1.6 MM4.7-1 The Applicant shall prepare a City of Huntington Beach -approved Water Quality Management Plan in accordance with the DAMP requirements for a Project WQMP and measures described below. A final WQMP shall be prepared to satisfy the requirements of the DAMP and City LIP. The final WQMP shall incorporate water quality BMPs for all improved phases of the proposed project. Prior to receiving a precise grading permit, three signed copies and an electronic copy on CD (.pdf or .doc format) shall be submitted to the Public Works Department. The final WQMP shall include the following additional requirements: A-10 Project and Site Characterization Requirements ■ Entitlement Application numbers and site address shall be included on the title sheet of the WQMP ■ In project description section, explain whether proposed use includes onsite food preparation, eating areas (if not please state), outdoor activities to be expected, vehicle maintenance, service, washing cleaning (if prohibited onsite, please state). ■ All potential pollutants of concern for the proposed project land use type as per Table 7.11- 1 of the Orange County Model Water Quality Management Plan shall be identified ® A narrative describing how all potential pollutants of concern will be addressed through the implementation of BMPs and describing how site design BMP concepts will be considered and Water Quality Review and approve Prior to receiving Public Works Management Plan WQMP a precise grading permit City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental impact Report W O #.,;. ., AppendixA Re�j'sed Mi#igation lVlonitonng and Reppimg Program incorporated into the project design shall be included. ■ Existing soil types and estimated percentages of perviousness for existing and proposed conditions shall be identified ® In Section I of the WQMP, state verbatim the Development Requirements from the Planning Department's letter to the Applicant. ■ A figure showing the selected treatment BMPs and drainage areas shall be included in the WQMP. Structural Treatment BMPs n Infiltration -type BMPs shall not be used. These would 'not be suitable or feasible for the project site because, as mentioned above, the project site soils have a shallow depth to seasonal high groundwater. o Wet swales and grassed channels shall not be P used because of the slow infiltration rates of project site soils and potentially shallow depth to groundwater ■ Dry and wet detention basins and constructed wetlands are not recommended for the project site because of the amount of area required for treatment and potential impacts to shallow groundwater. Additionally, wet detention basins would require approval by the vector control agency. ■ If proprietary Structural Treatment Control devices are used, they shall be sited and designed also in compliance with the manufacturers design criteria. ■ Treatment BMPs shall be selected such that City of Huntington Beach, The Revised Village at Bella Terra Addendum to The.Village at Bella Terra Environmental Impact Report Idjl Appendix A Revised;MEtigafion Mona Ing'and Reportirig;Prograrn . F_, . 3 ° s standing water drains within 24 hours or as required by the City's vector control. ■ Excess stormwater runoff shall bypass the treatment BMPs unless they are designed to handle the flow rate or volume from a 100-year storm event without reducing effectiveness. Effectiveness of any treatment BMP for removing the pollutants of concern shall be documented. ■ The WQMP shall incorporate water efficient landscaping using drought tolerant, native plants in accordance with Landscape and Irrigation Plans as set forth by the Association (see below). ■ Pet waste stations shall be provided and maintained. x ® Building materials shall minimize exposure of CC7 bare metals to stormwater. Copper or Zinc roofing materials, including downspouts, shall not be used. Bare metal surfaces shall be ' painted with non -lead containing paint. For all structural treatment and source control BMPs, the WQMP shall identify the responsible party, such as a Master Residential Association and Master Commercial Association or property owner, for maintenance of the treatment system, and a funding source or sources for its operation and maintenance. The term Association refers to the responsible party. Operations and maintenance BMPs shall include, but not be limited to: ■ The Association shall dictate minimum ,,.., landscape maintenance standards and tree N trimming requirements for the total project site. Landscape maintenance must be performed by to •I A-12 City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report w CD w N a qualified landscape maintenance company or individual in accordance with a Chemical Management Plan detailing chemical application methods, chemical handling procedures, and worker training. Pesticide application shall be performed by a certified applicator. No chemicals shall be stored on -site unless in a covered and contained area and in accordance with an approved Materials Management Plan. Application rates shall not exceed labeled rates for pesticides, and shall not exceed soil test rates for nutrients. Slow release fertilizers shall be used to prevent excessive nutrients in runoff or irrigation waters. a The Association shall have the power and duty to establish, oversee, guide, and require proper maintenance and tree trimming procedures per x the ANSI A-300 Standards as established by the International Society of Arborist. The Association shall require that all trees be trimmed by or P under the direct observation/direction of a licensed/certified Arborist, for the entire The Village at Bella Terra improvement area. The Association shall establish minimum standards for maintenance for the total community, and establish enforcement thereof for the total community. The Association shall rectify problems arising from incorrect tree trimming, chemical applications, and other maintenance within the total community. ® Landscape irrigation shall be performed in accordance with an Irrigation Management Plan to minimize excess irrigation contributing to dry - and wet -weather runoff. If automated sprinklers are used, they shall be inspected at least quarterly and adjusted yearly to minimize City of Huntington Beach, The Revised Village at Bella Terra A-13 Addendum to The Village at Bella Terra Environmental Impact Report E ..; �, Appendix A Revsseci Mstsggttan rManstorsngand ReportingjProgrgm x' a a w - ;; "{ y A-14 potential excess irrigation flows. Landscape irrigation maintenance shall be performed in accordance with the approved irrigation plans, the City Water Ordinance and per the City Arboricultural and Landscape Standards and Specifications. ■ Proprietary stormwater treatment systems maintenance shall be in accordance with the manufacturer's recommendations. If a non- proprietary treatment system is used, maintenance shall be in accordance with standard practices as identified in the CASQA (2003) handbooks, City BMP guidelines, or other City -accepted guidance. ■ Education programs. Signage, enforcement of pet waste controls, and public education would improve use and compliance, and therefore, effectiveness of this BMP and reduce potential for hazardous materials and other waste in stormwater runoff. The Association shall prepare and install appropriate signage, disseminate information to residents and retail businesses, and include pet waste controls in the Association agreement/Conditions, Covenants, and Restrictions. ■ Street sweeping shall be performed at an adequate frequency to prevent build up of pollutants (see http://www.fhwa.dot.gov/environment/ultraurb/ for street sweeping effectiveness). ® Maintenance Plan. The Association shall develop a maintenance plan for BMPs and facilities identifying responsible parties and maintenance schedules and appropriate BMPs to minimize discharges of contaminants to storm City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report CD e; �,H �+ ay °� Appendix A Revised Mitigafion�`Monitoring anel Reportig Program drain systems during maintenance operations. No discharge of building or courtyard/open space wash water shall enter the storm drain system unless treated and approved by the City of Huntington Beach. ■ Reporting requirements: the Association shall prepare an annual report and submit the annual report to the City of Huntington Beach documenting the BMPs operations and maintenance conducted that year. The annual report shall also address the potential system deficiencies and corrective actions taken or planned. The Applicant is encouraged to consider the following BMPs: ■ Use of porous concrete or asphalt (if acceptable x to the Geotechnical Engineer) or other pervious pavement for driveways, paths, sidewalks, and 61 courtyards/open space areas to the maximum extent practicable will reduce pollutants in O0 stormwater runoff as well as provide some detention within the material void space. If porous paver blocks are used, they must be adequately maintained to provide continued porosity (effectiveness), s Incorporation of rain gardens or cisterns to reuse runoff for landscape irrigation ■ Site design and landscape planning to group water use requirements for efficient irrigation ■ Sand filters or other filters(including media filters) for rooftop runoff ■ Dry swales a dry swale treatment system could be used if sufficient area, slope gradient, and length of swale could be incorporated into the City of Huntington Beach, The Revised Village of Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report F-115P IF Appendix AFRevrseci Mrtigatron Morntormg;and,R"eportingProgrdm', • O1 0 0 1150TA111YAMIM • • • • - 0 0 O • 0 O Revketl t?rewous 4 F k 4 z. re Meaur�'Na � ;Medsure�Moi ' °d �= M >wtEw�sure � � .• : "� t)oqumentuHon : � F�Mori►7oriri"° A r , .;F . iimTn , , !.. » >s ,Monitccu, �• ! 'Vei�tcafron' � .,,.Dbte.. project design (PBSU 2008), Dry swales could remove substantial amounts of nutrients, suspended solids, metals, and petroleum hydrocarbons (PBSU 2008). ■ Other proprietary treatment devices (if supporting documentation is provided) These BMPs shall not be used because they have not been shown to be effective in many situations. Therefore, unless sufficient objective studies and review are available and supplied with the WQMP to correctly size devices and to document expected pollutant removal rates the WQMP shall not include: ■ Hydrodynamic separator type devices as a BMP for removing any pollutant except trash and gross particulates ■ Oil and Grit separators CofA3.1.1 CofA4.7-1 Prior to receiving a precise grading or building Grading and Review and Prior to issuance Public Works permit, the Applicant shall prepare a site Grading Drainage Plan approval of Grading of a precise and Drainage Plan containing the recommendations and Drainage Plan grading or of the final Soils and Geotechnical Reports analysis building permit for temporary and permanent groundwater dewatering as well as for surface drainage. MM3.1-7 MM4.7-2 The Applicant shall prepare a Groundwater Groundwater Review and approve Prior to issuance Public Works Hydrology Study to determine the lateral Hydrology Study Groundwater of a precise transmissivity of area soils and a safe pumping yield Hydrology Study grading permit such that dewatering activities do not interfere with nearby water supplies. Based on the Groundwater Hydrology Study, the Geotechnical, Hydrogeologic, or other qualified Engineer shall determine whether permanent groundwater dewatering is feasible within the constraints of a safe pumping level. The project Applicant shall incorporate the qualified Engineers designs and recommendations into project plans. If safe groundwater dewateriqg is determined to not be A-16 City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report CD wo R, yt.e A, pro F "n 6 xv q AN Z, � _130C Measure No,3 9, M Mw", li" & feasible, permanent groundwater dewatering shall not be implemented. The City's Director of Public Works shall approve or disapprove of any permanent groundwater dewatering based on the Groundwater Hydrology Study and qualified Engineer recommendations. MM3.1-8 MM4.7-3 Prepare a Hydrology and Hydraulics Study and City- Site Development Review and approve Prior to issuance Public Works approved Site Development and Drainage Plan and and Drainage Plan plan of a precise reduce peak runoff rates to the existing conditions grading permit 25-year storm event peak runoff rate; the design capacity of the City storm drainage channels. Hydrology and Review and approve Prior to issuance Public Works Prior to receiving a precise grading permit, the Hydraulics Study study of a precise project Applicant shall: grading permit • Prepare a Site Development and Drainage Plan • Prepare an existing and proposed project Hydrology and Hydraulics Study based on the Precise final Inspect project site; Following Public Works Site Development and Drainage Plan, The grading and street verify that drainage grading, existing hydrology shall include an evaluation of improvement plans is in accordance excavation, and run-on to the project site because of spillage and studies with the Final installation of from the Bella Terra Mall drainage system, north Drainage Plan and utilities of the Montgomery Ward Site. that required detention/storm • Implement stormwater detention BMPs, based drain system on the Hydrology and Hydraulics Study, for all improvements have storm events up to the 1 00-year storm event, to been implemented. ensure that peak flow rates from the project site to the off -site storm drain system do not exceed the existing 25-year storm event peak flow rate. • Analyze existing street flow capacity to determine exceedance of any design criteria and guidelines from the City's MPD. • Additionally, stormwater detention BMPs shall be implemented such that areas draining to the existing piped storm drain systems do not exceed existing peak flow rates for the 10- and City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report A-17 „ Appendix A�Revised Mitigci,t0 Monitonng,and Reporting Prpgram, 25-year storm events and that peak flows to local streets do not exceed MPD and City design guidelines: > In accordance with the MPD, streets must be designed to leave at least one -lane free of ponded water in each direction for conveyance of the 10-year storm event, must be contained within the curbs for the 25-year storm event, cannot exceed 0.2 foot above the street curbs for the 50-year storm event, and cannot exceed 0.5 foot above the street curbs for the 100-year storm event. > The internal storm drain system must be adequate to detain sufficient stormwater runoff such that the street flow requirements are not exceeded. > Surface ponding or sump areas on the site rp will be limited to a maximum depth of 8- inches, and shall be distributed to areas v, away from building pads, and remote areas of parking lots. > Surface ponding or sump areas shall not exceed 1/3 of the proposed parking area in surface area. If there are proposed underground parking structures, they shall not be used for retention or storage, unless approved by the Director of Public Works. ■ Stormwater retention areas shall be analyzed for back-to-back 24-hour 100-year storm events per the requirements of the Orange County Flood Control Manual. m The final Hydrology and Hydraulics Study shall identify and evaluate the routing through the project site in relation to the new buildings, W J City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report CD w 00 Revised �Prevrous Project Protect Mdiacifion Mrliolvtion n landscaping, utilities, and others. Sufficient detention, provided to mitigate constrained capacities in the Bella Terra Mall drainage system, shall be implemented for run-on from north of the Montgomery Ward site onto the project site. ■ The final Hydrology and Hydraulics Study shall incorporate all NPDES requirements in effect at the time that the precise grading permit is anticipated to be issued or when the study is accepted as complete. ® Precise final grading and street improvement plans and studies shall be submitted to the Public Works Department for.review and approval. The project developer shall incorporate into a final Drainage Plan all recommendations and requirements identified the review of the final Hydrology and Hydraulics Study and identified stormwater detention requirements/features. Following grading, excavation, and installation of utilities, the Public Works Department shall inspect the project site and verify that project site drainage is in accordance with the Final Drainage Plan and that required detention/storm drain system improvements have been implemented. MM3.1-9 MM4.7-4 The Applicant shall design and implement project site drainage features to minimize stormwater runoff and flood waters from entering into any proposed Precise Grading and Site Development and Review and approval of Grading and Site Prior to issuance of a precise grading or Public Works underground parking structures or otherwise Drainage Plan Development and building permit contribute to flood hazards and shall incorporate Drainage Plan flood -proofing and hydrostatic pressure measures for all below -ground structures. Prior to receiving a precise grading or building permit, the Applicant shall prepare a Precise Grading City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report A-19 � Appendix A;"Rev►seeJ Mr#rgafian Monitonng and Repart►rig Program x" s , and Site Development and Drainage Plan identifying BMPs to minimize underground structure flooding. The Precise Grading and Site Development and Drainage Plan shall implement design features to minimize flooding of underground structures such as, but not limited to: ■ Grade areas to drain away from the structure entryways ■ Implement runon prevention (e.g., berms or dikes) to direct project site runoff and flood flows away from underground structure entryways e Elevate underground structure entryways to two - feet above the existing grade (approximate depth of potential flooding from the East Garden Grove-Wintersburg Channel) ■ Implement sumps and pumps within the x underground structures to remove any runoff CL7 entering the underground structures (this measure shall also be subject to the WQMP and �^ DAMP BMP requirements for discharge w treatment and disposal) Additionally, the Applicant shall incorporate flood - proofing measures to prevent seepage flooding. Underground structures materials and design shall be in accordance with FEMA floodplain development requirements and the 2007 California Building Code for structures subject to flooding and hydrostatic pressures. m The geotechnical engineer and/or waterproofing specialist shall prepare design requirements for flood -proofing the underground structures and ensuring that structures are build to withstand CD hydrostatic pressures, ® Any utilities located in below grade structures v' A-20 City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report w -P O �� k .a �. ;�, , �, Appendix�A Re�se,d Mltigptiori�Moni#aringanci,Repor#ing Prograrn� j shall be protected from ponding water and seepage in accordance with the geotechnical engineer recommendations and 2007 California Building Code. The Applicant shall also design on -site runoff to drain away from building foundations and shall not allow for more than 8 inches of ponding at any location on - site. MM4.5-1 MM4.9.1 The Applicant shall require by contract specifications Contract language Review and approve Plan check prior that the following construction best management and notes on contract to issuance of a practices (BMPs) be implemented by contractors to grading and specifications, grading permit reduce construction noise levels: building plans grading and building ® Notification shall be mailed to owners and plans for inclusion occupants of all developed land uses immediately bordering or directly across the street from the project site area providing a schedule for major construction activities that will occur through the duration of the construction period. In addition, the notification will include the identification and contact number for a community liaison and designated construction manager that would be available on site to monitor construction activities. The construction manager will be located at the on -site . construction office during construction hours for the duration of all construction activities. Contract information for the community liaison and construction manager will be located at the construction office, City Hall, and the police department. e Ensure that construction equipment is properly muffled according to industry standards • Utilize the best available technology to reduce City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report Planning A-21 Appendix A RevisedlMrtigafionMorntormg and Re"porting Program' tom. a;k y } d`; noise levels from pile driving activities, including but not limited to the use of noise blankets or temporary sound barriers ® Place noise -generating construction equipment and locate construction staging areas away from sensitive uses, where feasible ■ Schedule pile -driving activities between the hours of 8:00 A.M. and 4:00 P.m. on Mondays through Fridays only. MM4.5.2 MM4.9-2 The Applicant shall require by contract specifications Contract language Review and approve Prior to issuance Planning that construction staging areas, along with the and notes on grading plans for of a grading operation of earthmoving equipment within the grading plans inclusion permit project site, are located as far away from vibration - and noise -sensitive sites as possible. Contract specifications shall be included in the proposed project construction documents, which shall be reviewed and approved by the City. MM4.5.3 MM4.9-3 Prior to issuance of building permits, the Applicant Acoustical Study Review and Prior to issuance Planning shall submit an acoustical study, prepared by a approval of study of building certified acoustical engineer, to ensure that exterior and building plans permits (e.g., patios and balconies) and interior noise levels for inclusion any would not exceed the standards set forth in the City special design of Huntington Beach Municipal Code Sections measures 8,40.050 through 8.40.070. Final project design shall incorporate special design measures in the construction of the residential units, if necessary. MM3.1-10 MM4.11-1 Radio antenna receivers (BDA's) shall be installed in Final building plans Review and I Prior to issuance Planning all underground parking structures in order to allow approval of building of a building emergency responders to use their radio systems. plans for inclusion permit CD A-22 -P City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report �� ��,� , � x � �; �p �x,i �'.r��.�E � � .���,'A'ppendix�A Rev��sed Mitigation: Monitonng�and"Reporting Progrpm MM4.6-1 MM4,13.1 The Applicant shall provide funds on a fair share Proof of fair share Confirm payment Prior to issuance Public Works basis to the City of Huntington Beach to construct payment of certificate of either an additional northbound through lane or an occupancy additional westbound through lane at the intersection of Beach Boulevard and Edinger Avenue. MM3.1-11 MM4.14.1 Prior to issuance of a building permit for the Sewer Study Review and Prior to issuance Public Works proposed project, the existing 10-inch stubout approval of study of a grading connection shall be replaced with a stubout, whose permit size will be determined with a sewer study, to the 69- inch OCSD trunk sewer line so that a replacement Infrastructure Review and Prior to issuance Public Works sewer lateral can be installed to service the Improvement Plans approval of of a building development. The sewer study shall also evaluate infrastructure plans permit the condition of the existing OCSD manhole in Edinger Avenue to determine if the manhole requires rehabilitation. In addition, a second 12-inch point of connection shall be constructed for additional capacity, if necessary. City of Huntington Beach, The Revised Village at Bella Terra Addendum to The Village at Bella Terra Environmental Impact Report A-23 Planning Division Building Division 714.536.5271 714.536.5241 NOTICE OF ACTION April 8, 2011 SUBJECT: ENTITLEMENT PLAN AMENDMENT NO. 2011-002 (THE VILLAGE AT BELLA TERRA) APPLICANT: Ed Cadavona, Architects Orange, 144 N. Orange Street, Orange, CA 92866 PROPERTY OWNER: Becky Sullivan, BTDJM Phase It Associates, LLC, 922 Laguna Street, Santa Barbara, CA 93101 REQUEST: To amend the site plan layout of the previously approved Site Plan Review No. 2010-001 for The Village at Bella Terra mixed use project. The amendments include changing the size and shape of the residential parking structure to reduce the walking distance to each unit, amend the interior courtyard spaces and recreational amenities, reorient the westerly units to face north and south, and add one additional level of residential above the retail. The project details remain the same at 467 residential units and 29,500 square feet of retail/restaurant uses. LOCATION: 7601 Edinger Avenue (north of Edinger Avenue, west of the existing Bella Terra development, and east of the Union Pacific Rail Road) DATE OF ACTION: April 8, 2011 On April 8, 2011, the Planning and Building Department of the City of Huntington Beach took action on your application, and your application was conditionally approved. Attached to this letter are the conditions of approval for your application. Please be advised that the Department of Planning and Building reviews the conceptual plan as a basic request for entitlement of the use applied for and there may be additional requirements prior to issuance of building permits. It is recommended that you immediately pursue completion of the conditions of approval and address all requirements of the Huntington Beach Zoning and Subdivision Ordinance in order to expedite the processing/completion of your H13 -557- Item 15. - 143 Entitlement Plan Amendment No. 11-002 April 8, 2011 Page 2 of 2 project. The conceptual plan should not be construed as a precise plan, reflecting conformance to all Zoning and Subdivision Ordinance requirements. Under the provisions of the Huntington Beach Zoning and Subdivision Ordinance and Specific Plan No. 13, the action taken by the Department of Planning and Building is final unless an appeal is filed to the City Council by you or by a City Council member. The appellant shall file a written notice of appeal to the City Clerk within ten (10) calendar days of the date of the Planning and Building Department's action. The notice of appeal shall include the name and address of the appellant, the decision being appealed, and the grounds for the appeal. A filing fee of $494 shall also accompany the notice of appeal. Said appeal must be in writing and must set forth in detail the action and grounds by which the applicant or interested party deems himself aggrieved. The last day for filing an appeal and paying the filing fee for the above noted application is Wednesday, April 20, 2011 at 5:00 p.m. If you have any questions, please contact Jane James, Senior Planner at (714) 536-5596 (iiamesa-surfcity-hb.org) or the Planning Division Planning and Zoning Information Counter at (714) 536-5271. Sincerely, Scott Hess, AICP Director of Planning and Building by: O±LN� Jane Jam s Senior Planner Attachments: Findings and Conditions of Approval — Entitlement Plan Amendment No. 11-002 Cc: Honorable Mayor and City Council Chair and Planning Commission Fred A. Wilson, City Administrator Scott Hess, AICP, Director of Planning and Building Herb Fauland, Planning Manager Kellee Fritzal, Economic Development Deputy Director Bill Reardon, Division Chief/Fire Marshal Debbie DeBow, Senior Civil Engineer Mark Carnahan, Inspection Manager Becky Sullivan, BTDJM Phase II Associates, LLC, Property Owner Project File G:Wames\Bella Terra Costco\EPA 11-002 (7601 Edinger) - The Village at Bella Terra 040811.doc Item 15. - 144 HB -558- ATTACHMENT NO. 1 FINDINGS AND CONDITIONS OF APPROVAL ENTITLEMENT PLAN AMENDMENT NO. 2011-002 FINDINGS OF APPROVAL — ENTITLEMENT PLAN AMENDMENT NO. 11-002: 1. Entitlement Plan Amendment No. 11-002 to amend the site plan layout of the previously approved Site Plan Review No. 2010-001 for The Village at Bella Terra mixed use project, including changing the size and shape of the residential parking structure to reduce the walking distance to each unit, amending the interior courtyard spaces and recreational amenities, reorienting the westerly units to face north and south, and adding one additional level of residential above the retail will not be detrimental to the general welfare of persons working or residing in the vicinity or detrimental to the value of the property and improvements in the neighborhood. The project details remain the same at 467 residential units and 29,500 square feet of retail/restaurant uses and the mixed -use residential and retail development, with the recommended conditions of approval, incorporates architectural and design principles to help ensure maximum compatibility of design with the existing Bella Terra, promote pedestrian -friendly entries and uses, and promote the use of - high quality exterior materials. Structures on the project site would vary in heights in order to provide variety to the roofline and to reduce overall building massing. Development standards and design guidelines in Specific Plan No. 13 ensure that form, height, and development convey an overall high level of quality. Landscaping and paving patterns will be compatible with the adjacent Bella Terra development and the project will contain gathering places for public activity. 2. The revised plans under Entitlement Plan Amendment No. 11-002 to amend the site plan layout of the previously approved Site Plan Review No. 2010-001 for The Village at Bella Terra mixed use project, including changing the size and shape of the residential parking structure to reduce the walking distance to each unit, amending the interior courtyard spaces and recreational amenities, reorienting the westerly units to face north and south, and adding one additional level of residential above the retail will be compatible with surrounding uses because circulation patterns effectively move passenger vehicles and delivery trucks around the site; adequate parking for the proposed development will be provided; a high level of quality architecture is proposed with the mixed use portion of the building; and the overall project will incorporate sustainable building practices to maximize energy efficiency. 3. The revised plans under Entitlement Plan Amendment No. 11-002 to amend the site plan layout of the previously approved Site Plan Review No. 2010-001 for The Village at Bella Terra mixed use project, including changing the size and shape of the residential parking structure to reduce the walking distance to each unit, amending the interior courtyard spaces and recreational amenities, reorienting the westerly units to face north and south, and adding one additional level of residential above the retail will comply with the provisions of Specific Plan No. 13 and other applicable provisions in Titles 20-25 of the Huntington Beach Zoning and Subdivision Ordinance. The proposed project meets code requirements in terms of building height, setbacks, landscaping, common and private open space, and G:\James\Bella Terra Costco\EPA 11-002 (7601 Edinger) - The Village at Bella Terra 040811.doc Attachment 1.1 HB -559- Item 15. - 145 with conditions imposed will depict reciprocal access for pedestrian and bicycle connections from the westerly adjacent property to the Bella Terra development. 4. The granting of Entitlement Plan Amendment No. 11-002 to amend the site plan layout of the previously approved Site Plan Review No. 2010-001 for The Village at Bella Terra mixed use project will not adversely affect the General Plan. it is consistent with the Land Use Element designation of CR-F2-sp-mu (F14) (Regional Commercial) for Area B on the subject property. CONDITIONS OF APPROVAL — ENTITLEMENT PLAN AMENDMENT NO. 11-002: 1. The site plan, floor plan, and elevations received and dated January 31, 2011 shall be the conceptually approved layout with the following modifications: a. The site plan shall depict the pedestrian connection to the west at the northwest corner of the residential layout. b. The residential parking structure shall yield the minimum number of parking stalls identified in the approved Shared Parking Analysis under Site Plan Review No. 10-001. 2. All other conditions of approval required under Site Plan Review No. 10-001 shall remain in effect. INFORMATION ON SPECIFIC CODE REQUIREMENTS: 1. The applicant and/or applicant's representative shall be responsible for ensuring the accuracy of all plans and information submitted to the City for review and approval. 2. Entitlement Plan Amendment No. 11-002 shall not become effective until the ten -calendar day appeal period has elapsed. 3. Entitlement Plan Amendment No. 11-002 shall become null and void unless exercised within one year of the date of final approval or such extension of time as may be granted by the Director pursuant to a written request submitted to the Planning and Building Department a minimum 30 days prior to the expiration date. 4. The Planning and Building Department reserves the right to revoke Entitlement Plan Amendment No. 11-002, pursuant to a public hearing for revocation, if any violation of these conditions or the Huntington Beach Zoning and Subdivision Ordinance or Municipal Code occurs. 5. The development shall comply with all applicable provisions of the Municipal Code, Building Department, and Fire Department as well as applicable local, State and Federal Fire Codes, Ordinances, and standards, except as noted herein. r,-\.1;\Bella Terra Costco\EPA 11-002 (7601 Edinger) - The Village at Bella Terra 040811.doc Attachment 1.1 Item 15. - 146 HB -560- HB -561- Item 15. - 147 RUTAN RUTAN & TUCKER, LLP October 3, 2011 Members of the Planning Commission City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 �.- Jeffrey M. Oderman Direct Dial: (714) 641-3441 &trail: joderman@rutamcom Re: October 11, 2011, Planning Commission Meeting Agenda Item 42, Development Agreement No. 2008-001 (The Village at Bella Terra) Dens Members of the Planning Commission: On behalf of BTDJlvf Phase II Associates; LLC ("DRA"), I am writing to request that you take action at your October 11 meeting to recommend to the City Council that the Council approve the Development Agreement ("DA") for the Village at Bella Terra ("VABT") project with one modification: deletion of the provisions in the draft of the DA presented to the Commission at your September 27, 2011, study session that would obligate DJM to repair/repave approximately 2,300 linear feet of Center Street (DA Section 1 [definition of "Off Site Public Improvements"], Section 4.1.1, and Exhibit "C"). The City staff and DJM have fully negotiated and are in full agreement with respect to all of the other terms of the DA. DJM thanks the City staff for its diligence and support in helping to put this document together. DJM does have a disagreement with City staff concerning the Center Street repair/repaving issue, however, and since we were unable to resolve that issue between ourselves we agreed that we would each take our respective positions to the Planning Commission and City Council for resolution. DJM objects to including the Center Street repair/repaving obligation in the DA for the following reasons: 1. The City previously certified a full Environmental Impact Report (No. 07-03) for the VABT project and an Addendum to that EIR. The repair/repaving of Center Street was not identified in either document as an impact of the VABTproject or a required mitigation measure. .2. The Planning Commission and City Council have previously issued the development entitlements for the VABT project (including General Plan Amendment No. 10- 001, Zoning Text Amendment No. 10-001, Specific Plan No. 13, Site Plan Review No. 10-001, and Tentative Tract Map No. 17261) and the City's Redevelopment Agency has approved (on October 4, 2010) a comprehensive Affordable Housing Agreement ("AHA') for the 71 affordable housing units to be included in the VABT project. The repair/repaving of Center Street is not a condition of approval for any of the YABT project entitlements or the AHA. 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626 PO Box 1950, Costa Mesa, CA 92e28-1950 1 714-641-6100 1 Fax 714-646-9035 112/027848-0001 Item 15. — 148 our.ty 1 Palo Alto I www.rutar-com HB -562- 2360089.1 z10103111 RUTAN ATTORNEYS AT LAW Members of the Planning Commission October 3, 2011 Page 2 3. There is no "nexus" between the impacts of the VABT project on the environment and the City's desire or need to repair,/repave Center Street, Center Street is an existing City street and the City's maintenance responsibility. Even if there are existing deficiencies in the roadway, these are the City's obligation to fix, not DJM's obligation. If the City were to unilaterally try to impose the Center Street repair/repaving obligation on DJM instead of sticking the obligation into the DA, this imposition would constitute an unconstitutional "taking" of DJM's property rights. (See, e.g., Rohn v. City of Visalia (1989) 214 Ca1.App:3d 1463 [held: city guilty of inverse condemnation for attempting to condition development project on obligation to dedicate right-of-way for realignment of an intersection when the deficiency was an existing deficiency and not reasonably related to any impacts caused by the project].) DJM submits the City should not be trying to accomplish through the DA what it could not lawfully accomplish through the entitlements process. 4. The City staff has taken the position with DJM that City policy requires the City to obtain some "extraordinary benefit" as a condition to approval of a development agreement and the Center Street repair/repaving obligation is needed to serve that policy. In fact, there is no such City policy. The Land Use Element of the City's General Plan (Policy I-LU 7) says only that the City "may use" development agreements "where appropriate" and that development agreements can address "additional benefits that may be contributed" by the developer (emphasis added), which fails far short of a command that the City extract such benefits. Likewise, there is nothing in the State law authorizing development agreements (Cal. Government Code Section 65864 et seq.) or the City's implementing development agreement ordinance (Chapter 246 of the Municipal Code) that even suggests the City's approval of a development agreement must or should be conditioned upon the developer's agreement to provide some "added benefit" 5. Even though no law or City policy requires the City to extract an "added benefit" as a condition to approval of a development agreement, DJM has offered to provide such added benefits. When this issue was fast raised by City staff during the negotiation of the VABT DA, City staff and DJM agreed upon the language now incorporated into Section 4.1.2 of the DA (to which DJM does not object) that obligates DJM to contribute $250,000 toward the cost of providing a pedestrian linkage with the former Levitz property to the west. It was only after DJM made this concession to fund the pedestrian connection to the former Levitz property (which improvement is not related to any impacts of the VABT project either) that City staff came back and asked for the additional requirement relating to repair and repaving of Center Street. While this happened several months ago (it has taken years to finalize the language in the DA), DJM feels the City staff demand to add the Center Street repair/repaving requirement after negotiating for the pedestrian connection was a "late hit" in terms of how the DA was negotiated. 6. Beyond that, DJM submits the VABT project, viewed in its totality, provides tremendous public benefits to the City and its citizens, including without limitation: a new Costeo store, which will provide excellent shopping opportunities for City residents and will I IV027W4 DD31 1360089.1 alo/03/11 1-113-563- Item 15. - 149 RUTAN ATTORNEYS AT LAW Members of the Planning Commission October 3, 2011 Page 3 generate very substantial local sales tax revenues; 71 affordable housing units that will be rent - restricted for 55 years (including 28 units affordable to the most needy "very low" income household category); a 1-acre park that will be open to the public but maintained at no cost to the City (over and above the VAST project's park dedication/fee requirement and for which DAM will receive no credit against its park obligations); demolition of the old run-down Montgomery Ward building; revitalization of the Bella Terra shopping center in the wake of Menyn's departure; creation of a very high quality mixed -use project (well above minimum City design and building standards) in the key Edinger -Beach corridor; and a considerable number of construction and long-term employment opportunities for area residents during these very difficult economic times. The notion that DJM needs to provide an "additional benefit" above and beyond all of these other substantial benefits (and its S250K contribution to the pedestrian connection referred to above) is, DJM submits, simply `piling on." 7. DJM estimates it would have to pay approximately $500,000 to repair/repave the 2,300 linear foot portion of Center Street as recommended by City staff. In these difficult economic times the VABT project is financially "thin" already and simply cannot afford to carry this additional burden. DJM needs the DA in order to clarify the rules that will apply relative to payment of park fees for the project and which condominium conversion regulations will apply if the residential units (which are approved and are being built as condos but which will be rented out for the indefinite future) are later sold. (DA, Sections 5.1-5.1.4.) NNThile the staff report presented to the Commission at your September 27t' meeting indicates (at, page 2) that only "current development/exaction fees [apply] during the term of the agreement," in fact the DA (in Section 3.2.1(ii)) allows the City to increase fees as long as those increases are "applicable to similarly situated properties or projects on a citywide or areawide basis." DJM is abiding by all of the City's requirements -and believes the DA is more than fair to protect the City's interests. Accordingly, DJM respectfully requests that the Planning Commission recommend. approval of the DA subject to deletion of the provisions relating to the repair/repaving of Center Street. Thank you for your consideration of this request. cc: Scott Hess Jane James Lindsay Parton Becky Sullivan Dick Harlow 112102784"01 2360089.1 a101 11 Sincerely, w4turrnaft RUT & TUCKER, LLP Item 15. - 150 1-113 -564- --ATTACHMENT #7 HB -565- Item 15. - 151 THE VI LAGS AT BELLA TER DEVELOPMENT AGREEMEN City of Huntington Beach City Council November 21, 2011 Location an ■ Development Agreement No. 2008-001 o Enter into DA with BTV for 10 years for The Village mixed use o West of Bella Terra, south of approved Costco o Does not include Costco site Project_ J I 1 Item 15. - 152 HB -566- Proposed Proiec ■ Benefits requested by applicant: 0 10 year term — locks in current land use regs o City to provide cooperation on future amendments and LLAs o Extend TTM for ten years o Construct approved project but no new fees applicable; existing fees may be modified o Delay payment of For -Sale Park and Rec fees; pay Rental Park and Rec fees in meantime o Defines conversion regulations if units initially rented Background and Site History ■ August 2010 PC approved 467 residential units; 30,000 sf mixed use retail ■ October 2010 — Agency approved Affordable Housing Agreement o $250 K contribution for pedestrian path ■ December 2010 — Construction began ■ February 2011 -- PC approved TTM ■ April 2011 —Director approved EPA to revise residential layout ■ DA differs from recent Boardwalk DA required by BECSP HB -567- Item 15. - 153 Analvsis R&A Nate F r • General Plan, Zoning, HBZSO, Muni Code, and SMA Consistency • Special Considerations o Center Ave Improvements. o $250 K as stipulated in AHA ■ Not detrimental to health, safety, general welfare ® Balance fiscal effect and housing needs against public service needs and available resources Costs/Benefits • $500 K estimated cost for Center Ave. • Delayed payment of park and recreation fees: $10-14 million vs. $600 K • Other terms of the agreement including locking in land use, extending map, etc, are benefits to developer 3 Item 15. - 154 HB -568- nnin_9:Commissi,on Action ® October 25, 2011 PC reviewed DA o Applicant opposed to Center Avenue street improvements o PC did not agree on inclusion of Center Avenue o PC forwarded to CC without recommendation Recommendation ® Approval of DA No. 08-001 because.- o Consistent with General Plan o Conforms to HBZSO, SP 13, SMA o Consistent with The Village at Bella Terra development plans o Ensures mutually beneficial development of proposed project and serves needs of surrounding community HB -569- Item 15. - 155