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14-0603_NEELY, JERRY W. & NANCY C._E2_Supplementary Agenda ReportTO: FROM: DATE: SUBJECT: 6/3/2014 E2 City of San Juan Capistrano Supplementar nda Report "' Karen P. Brust, City /an f Charles View, Develop nt Services Direct~ June 3, 2014 Consideration of a Request for Approval of an Extension of the Development Agreement with the Neely Family Trust for a 19.93-Acre Site Generally Located Along the East Side of McCracken Hill and Bordering the West Edge of the "Valley Area" of the Pacifica San Juan Project {Assessor Parcel Numbers: 675-331-19. through 21, and 675-341-09, 11)(Applicant: Neely Family Trust) RECOMMENDATION: Open the public hearing, receive testimony, close the public hearing and by motion, approve the first reading and introduction of an ordinance approving a 20-year extension of the Development Agreement with the Neely Family Trust from November 17, 2019, to November 16, 2039. SITUATION: After completion of the Development Agreement (Exhibit "A") and approval by the respective attorneys, it was determined that there Wf.:IS a minor correction required. Specifically on the first page, in the first full paragraph following Recital B, the following change is requested by the attorney representing the Neely Family Trust: By mutual agreement of the parties, only the issue of a change in development fees will be considered in any extension request, which shall not be unreasonably (replacing unreasonable) withheld. This minor change in the first page of the Development Agreement, (Exhibit "A") to the Ordinance (Attachment 1) is the only revision requested. Attachment 1 is the Ordinance with the Revised Development Agreement, Attachment 2 is a red line of the first page of the Development Agreement showing the change. City Council Agenda Report June 3, 2014 Page 2 of 2 FISCAL IMPACT: Not applicable. A TT ACHMENT(S): Attachment 1 -Ordinance with Revised Development Agreement (Exhibit A) Attachment 2 -Red line Page 1 of the Development Agreement ORDINANCE NO. xxx AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AND ADOPTING AN EXTENSION TO THE "DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND JERRY W. AND NANCY C. NEELY AS TRUSTEES OF THE NEELY FAMILY TRUST OF MARCH 3, 1989" THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Recitals & Findings. 1. M. Andriette Culbertson, on behalf of the Neely Family Trust has requested a twenty (20) year extension to a Development Agreement, entitled "Development Agreement by and between the City of San Juan Capistrano and Jerry W. and Nancy C. Neely as Trustees of the Neely Family Trust of March 3, 1989" approved by the City Council on November 16, 1999; and, 2. The project has been reviewed in accordance with the California Environmental Quality Act (CEQA) and the City's Environmental Administrator has determined that the project is exempt from further review pursuant to Section 15061 (b)(3) of the CEQA Guidelines establising the "general rule" provision which states that, "[A project is exempt from CEQA if] the activity is covered by the general rule that CEQA only applies to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA;" and, 3. The City Council conducted a duly-noticed public hearing on June 3, 2014, pursuant to Title 9, Land Use Code, Section 9-2.335, Public Hearing Procedures to consider the draft development agreement, and to consider· public testimony on the proposed agreement, and has considered all relevant public comments. SECTION 2. Amendment. Pursuant to Government Code Sections 65864 et. seq., the City Council does hereby approve and adopt the "FIRST AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SAN JUAN CAPISTRANO and Jerry W. and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989," as provided by ExhibitA, attached hereto and incorprated herein. The Mayor is hereby authorized to execute said agreement on behalf of the City of San Juan Capistrano. ATTACHMENT 1 SECTION 3. Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its passage. SECTION 4. Citv Clerk's Certification. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted at the duly designated posting places within the City and published once within fifteen (15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five (5) days prior to the date of adoption of this Ordinance; and, within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk. PASSED, APPROVED AND ADOPTED th~s 3rd day of June 2014. SAM ALLEVA TO, MAYOR ATTEST: MARIA MORRIS, CITY CLERK 2 EXHIBIT A .FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendmenf') is entered into as of the day of , 2014, by and between THE CITY OF SAN JUAN CAPISTRANO (hereinafter collectively referred to as "City"), and Jerry W. and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3, 1989 ("Property Owner"). RECITALS A. City and Property Owner entered into that certain Development Agreement, dated the 16th day of November, 1999 (the "Agreement"), pursuant to which the City agreed to vest the zoning of the property of Property Owner pursuant to the Municipal Code of the City of San Juan Capistrano, in exchange for Property Owner's Waiver and Release with respect to a landslide that occurred on Property Owner's property on May 1, 1998. In addition, Property Owner allowed other work to be performed on its property associated with a series-of land development and public infrastructure proposals. Although Property Owner promptly complied, through no fault of Property Owner or City, the development did not take place in the timeframe contemplated. Section 9 of the Agreement allows for, inter alia, extension. B. The Parties wish to modify certain terms of the Agreement in the manner set forth in this Amendment, and the remainder of the Agreement remains in-full force and effect. NOW, THEREFORE, City and Property Owner agree as follows: Section 2 of the agreement is amended to read as follows: The Development Agreement is for a period of an additional ten (10) years as measured from the original expiration, to expire on November 16, 2029 unless extended. Two five (5) year extensions may be requested. At the time of each extension request, the City will evaluate only the aspect of whether a change in development fees has occurred. If there has been a change in development fees, the City may memorialize that change as part of the City's action on the extension request. By mutual agreement of the parties, only the issue of a change in development fees will be considered in any extension request, which shall not be unreasonably withheld. Section 4(b) of the Agreement is amended to rea~ as follows: Development fees in effect as of the date of the approval of this First Amendment to Development Agreement shall apply to a specific development plan subsequently submitted to the City for review during the term of this Agreement. IN WITNESS WHEREOF, the Parties have each caused this First Amendment to Development Agreement to be duly executed as of the date first written above. ATTEST: Maria Morris, City Clerk CITY OF SAN JUAN CAPISTRANO Sam Allevato, Mayor PROPERTY OWNER s Trustee of the Neely arch 3, 1989 AC KNOWLEDGMENT State of California O J Countyof ~ On D ~-( 0~ 1~ I ~-before me.-\~ P ~· rJ~T RJ.> (insert name and title of the officer) personally appeared :J IJ · tJec-L & rJ.ftt./c · C flkc.-L who proved to me on the basi of satisfactory e dence to be the per on(s) whose nam (s)~are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in ~r/their authorized capacity(ies), and that by ~/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. (Seat) ) EXHIBIT A FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is entered into as of the day of , 2014, by and between THE CITY OF SAN JUAN CAPISTRANO (hereinafter collectively referred to as "City"), and Jerry W . and Nancy C. Neely, as Trustees of the Neely Family Trust of March 3 , 1989 ("Property Owner"). RECITALS A. City and Property Owner entered into that certain Development Agreement, dated the 16th day of November, 1999 (the "Agreement"), pursuant to which the City agreed to vest the zoning of the property of Property Owner pursuant to the Municipal Code of the City of San Juan Capistrano , in exchange for Property Owner's Waiver and Release with respect to a landslide th~t occurred on Property Owner's property on May 1, 1998. In addition, Property Owner allowed other work to be performed on its property associated with a series of land development and public infrastructure proposals . Although Property Owner promptly complied , through no fault of Property Owner or City, the development did not take place in the timeframe contemplated. Section 9 of the Agreement allows for, inter alia , extension . B. The Parties wish to modify certain terms of the Agreement in the manner set forth in this Amendment, and the remainder of ·the Agreement remains in full force and effect. NOW, THEREFORE , City and Property Owner agree as follows: Section 2 of the agreement is amended to read as follows: The Development Agreement is for a period of an additional ten (1 0) years as measured from the orig ina l expiration, to expire on N ovember 16, ·2029 unless extended. Two five (5) year extensions may be requested. At the time of each extension request , the City will evaluate only the aspect of whether a change in deve lopment fees has occurred. If there has been a change in development fees , the City may memorialize that change as part of the City's action on the extension request. By mutual agreement of the parties , only the issue of a change in development fees will be considered in any extension request, which shall not be w:~reasonable-unreasonably withheld. Section 4(b) of the Agreement is amended to read as follows: Development fees in effect as of the date of the approval of this First Amendment to Development Agreement shall apply to a specific development plan subsequently submitted to the City for review during the term of this Agreement. ATTACHMENT 2