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21-0615_R&H LAND PARTNERS_Agenda Report_F1aCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Charlie View, Assistant City Manager PREPARED BY: Matisse Reischl, Senior Management Analyst DATE: June 15, 2021 SUBJECT: Resolutions Declaring City-owned Property Located at Calle Arroyo and Rancho Viejo Road (Assessor Parcel Number: 666-232-08) and City-owned Property Located at Ortega Highway and Avenida La Pata (Assessor Parcel Number: 125-172-24) Non-Exempt Surplus Land RECOMMENDATION: 1.Approve a Resolution declaring City-owned property located at Calle Arroyo and Rancho Viejo Road (APN: 666-232-08) non-exempt surplus land; and, approve the form of the corresponding Notice of Availability for distribution to interested parties. 2.Approve a Resolution declaring City-owned property located at Ortega Highway and Avenida La Pata (APN: 125-172-24) non-exempt surplus land; and, approve the form of the corresponding Notice of Availability for distribution to interested parties. EXECUTIVE SUMMARY: In 2019, the State took several actions to make public lands available for affordable housing development, including modifications to the Surplus Land Act. The Surplus Land Act requires that prior to the disposition of land, unless an exemption applies, cities must provide notice to affordable housing developers, and in some cases public agencies that operate open space lands, that a property is potentially available for development. The Notice of Availability describes the location, land use and zoning designations, conditions of the property, and any development constraints that impact the property. Within the Act, surplus land is defined as property no longer needed for an agency’s direct use. Additionally, the new Surplus Land Act regulations expanded the definition of disposition to include leases of City-owned property. 6/15/2021 F1a City Council Agenda Report June 15, 2021 Page 2 of 6 Staff has identified two parcels of City-owned land that are subject to the provisions of the Surplus Land Act prior to disposition, by either sale or lease: 1) the Calle Arroyo parcel located at Calle Arroyo and Rancho Viejo Road, currently managed under a License Agreement with Ortega Equestrian Center; and, 2) the Rancho Mission Viejo Riding Park at San Juan Capistrano, currently operated under a Management Agreement with Blenheim Facilities Management. Pursuant to the Surplus Land Act, prior to disposition, cities must adopt a resolution declaring a property surplus land. Proposed resolutions declaring the Calle Arroyo parcel and Riding Park parcel as non-exempt surplus land are provided as Attachment 1 and Attachment 2. Following the declaration of the properties as surplus land, a Notice of Availability is required to be prepared and distributed to interested affordable housing developers registered with the California Department of Housing and Community Development (HCD). Proposed notices of availability for the Calle Arroyo parcel and Riding Park parcel are provided as Exhibits B to Attachments 1 and 2. As previously mentioned, there are exemptions within the Surplus Land Act that would allow an agency to dispose of property without first issuing a notice of availability. Staff analyzed the conditions of both the Calle Arroyo and Riding Park parcels and presented findings to HCD for an exemption determination. Ultimately, HCD determined that the properties did not meet exemptions specifically identified within the Surplus Land Act; however, staff continues to believe significant development constraints exist on both properties that would make future development of affordable housing likely infeasible. These constraints and prohibitions are described in the following sections and have been clearly identified within the notices of availability that would be provided to interested parties. DISCUSSION/ANALYSIS: Calle Arroyo Parcel The City owns an approximately 1-acre parcel generally located at Calle Arroyo and Rancho Viejo Road (Calle Arroyo parcel). An aerial photo of the site is provided as Attachment 3. The parcel is situated between property owned by St. Margaret’s Episcopal School and the Ortega Cottages Business Park. The Calle Arroyo parcel is currently operated under a License Agreement by Ortega Equestrian Center and used for office space, support facilities and a riding ring, all in conjunction with a larger commercial equestrian and stable operation located on an adjacent property owned by St. Margaret’s. Importantly, the City-owned Calle Arroyo parcel is landlocked with no legal access. Currently, Ortega Equestrian Center accesses the Calle Arroyo parcel through a nonbinding agreement with the Ortega Cottages business park property owner. The property is zoned PC (CDP 78-1) Ortega Planned Community, Planning Sector C, which permits a range of open space recreation uses, including parks, playgrounds, riding and hiking trails, bicycle trails, golf courses, and agricultural uses. However, due to the restricted access and relatively small size, the site is not well-suited for a stand-alone public use and the City desires to sell the property to facilitate improved options for long- City Council Agenda Report June 15, 2021 Page 3 of 6 term use of the site, while mitigating future risk and maintenance obligations associated with City ownership. As previously identified, significant development constraints exist on the Calle Arroyo property that would make a residential project likely infeasible. In 2008, San Juan Capistrano residents passed a ballot measure to affirm the importance of open space lands within the community. Measure X was passed (78.8% support) to establish that any land designated as Open Space would not transition to another land use designation without a vote of the people. The Calle Arroyo property is designated Open Space Community Park, therefore, the change to the General Plan and Zoning designation to allow residential uses would be subject to a city-wide ballot measure. Any potential residential/affordable housing developer would be required to undertake the typical discretionary/legislative land use revision process, and then also be subject to a separate voter approval process. If the legislative or voter approval process fails, the land cannot be developed with residential uses. Additionally, the Calle Arroyo parcel is located within the floodway adjacent to San Juan Creek. Federal Emergency Management Administration (FEMA) regulations provide restrictions on types of development that can be undertaken in a floodway, including limitations on permanent structures. Development encroachment within the floodway is prohibited unless the developer or applicant provides a “No-Rise” certification which confirms that there will be no increase in the base flood elevation as a result of the development. The placement of physical improvements such as housing structures while achieving a “No-Rise” condition would likely be infeasible. Given the development constraints that exist on the property, the site is likely not conducive to a future affordable housing development. However, to comply with the provisions of the Surplus Land Act, staff recommends that the City Council approve the proposed resolution declaring the Calle Arroyo parcel non-exempt surplus property, and approve the corresponding Notice of Availability to be distributed to interested parties. Rancho Mission Viejo Riding Park at San Juan Capistrano The City owns the approximately 70-acre Rancho Mission Viejo Riding Park at San Juan Capistrano property located at Ortega Highway and Avenida La Pata. An aerial photo of the site is provided as Attachment 4. The parcel has a General Plan Land Use Designation of General Open Space, and Zoning Classification of Open Space Recreational. Allowed uses are recreational in nature including sports fields, equestrian, public facilities, and accessory structures. Currently, the property is operated under a Management Agreement with Blenheim Facilities Management and used for equestrian and stable operations. The City desires to enter into a lease with an operator interested in making a long-term investment in the future of the property. As such, the City issued a Request for Qualifications/Proposals in April 2021 for a future long-term operator of the facility. Prior to negotiating with a future operator, the Surplus Land Act requires the property be noticed for availability. City Council Agenda Report June 15, 2021 Page 4 of 6 Similar to the Calle Arroyo parcel, considerable development constraints negatively impact the Riding Park property. The subject property is part of a larger City land holding commonly known as the Eastern Open Space. In 2010, the City purchased the Eastern Open Space lands from the Rancho Mission Viejo Company (RMV) for $27.5 million. As part of the purchase, RMV required the City to agree to restrict the use of the land to agricultural, equestrian, sports fields and temporary uses. As specified in section 15.1(c) of the Purchase and Sale Agreement (PSA), the use restrictions run with the land and are binding upon any person or entity acquiring right, title or interest in a portion of the land. In addition, Section 15.1(d) of the PSA establishes that should the land be used for any use other than the allowed uses, RMV may terminate the City’s estate (ownership) in the property. Additionally, as part of the purchase RMV prohibited permanent lighting on the property and limited the number of vehicle trips permitted to and from the property per weekday. Also similar to the Calle Arroyo property, the Riding Park parcel is subject to the provisions of Measure X, which would require a city-wide vote to change the General Plan and Zoning designation of the property to allow residential uses. Any potential residential/affordable housing developer would be required to undertake the typical discretionary/legislative land use revision process, and then also be subject to a separate voter approval process. If the legislative or voter approval process fails, the land could not be developed with residential uses. Portions of the Riding Park property also contain regionally important vegetation and habitat areas that are identified as Sensitive Resource Areas governed by US Fish and Wildlife Services, California Department of Fish and Wildlife, United States Army Corps of Engineers, and San Diego Regional Water Quality Control Board regulations. Any disruption of Sensitive Resource Areas requires the permission of Rancho Mission Viejo Company and likely the regional enforcement agencies. Further, a Conservation Easement is recorded against the property which identifies Do Not Disturb Areas that may not be amended and prohibits a variety of uses, including residential uses, within the Sensitive Resource Areas. Additionally, any potential impact to the Sensitive Resource Areas is prohibited between January 15 to September 15 annually to preserve environmental conditions for the bird breeding season. An ephemeral wash, or a stream that flows only during a rain event, also exists on the property. The stream is prone to flooding during a rain event and would require significant remediation to avoid impacts to a potential development on the property. The ephemeral wash is considered a Waters of the United States under federal law and a Waters of the State under California law. The United States Army Corps of Engineers (USACE) and the United States Fish & Wildlife Service are the federal agencies with jurisdiction over Waters of the United States and require federal permits for construction in an ephemeral wash. The San Diego Regional Water Quality Control Board and the California Department of Fish & Wildlife are the state agencies with jurisdiction over Waters of the State and require state permits for construction in an ephemeral wash. As part of the permitting process and prior to any construction activities, each of the four agencies City Council Agenda Report June 15, 2021 Page 5 of 6 previously referenced must be consulted to determine if construction activities would impact the streamflow or vegetative habitat within the ephemeral wash, and to determine potential mitigation requirements. Additionally, the lowest portion of the ephemeral wash is located within a conservation easement which prohibits any construction in this area, regardless of proposed mitigation. Given the significant residential development constraints that exist on the Riding Park property, and the fact that the City only wishes to lease the parcel, issuance of a Notice of Availability to affordable housing developers is largely procedural. However, should the City receive interest from an affordable housing developer, staff would comply with the negotiation provisions of the Surplus Land Act and in doing so would reiterate the challenges associated with residential development of the property. Again, if the City receives interest in the Riding Park property and during the negotiation period the parties are unable to agree on lease terms, the City is under no obligation to lease the property to an affordable housing developer. Therefore, staff recommends that the City Council approve the proposed resolution declaring the Riding Park parcel non-exempt surplus land, and approve the corresponding Notice of Availability to be distributed to interested parties. Conclusion In accordance with the Surplus Land Act, interested parties would have 60 days from the date the Notice of Availability is issued to notify the City of interest in purchasing the Calle Arroyo parcel or leasing the Riding Park property. If interest is received, the City would enter into 90 days of good faith negotiations with the interested party. Entering into good faith negotiations would not obligate the City to sell or lease either property to an interested affordable housing developer, and interested parties would have the opportunity to withdraw their interest in the property should they determine a project is not feasible. If no agreement is reached during the negotiation period, the City may enter into negotiations with other interested parties wishing to lease or purchase the land. Should notice be received from an interested affordable housing developer or public agency interested in an open space acquisition, as part of the negotiations process staff would further describe the development constraints that exist on both properties in an effort to identify the challenges associated with a future housing project on either site. Therefore, staff recommends the City Council approve the proposed resolutions declaring the City-owned properties non-exempt surplus land and approve the corresponding notices of availability to be distributed to interested parties. FISCAL IMPACT: There is no fiscal impact associated with the recommended action, which is only to adopt resolutions declaring the City-owned property non-exempt surplus land and approve corresponding notices of availability. Any future purchase agreement for the Calle Arroyo parcel or lease agreement for the Riding Park property would be brought back to the City Council for consideration. City Council Agenda Report June 15, 2021 Page 6 of 6 ENVIRONMENTAL REVIEW: In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3), the general rule that CEQA applies only 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. The approval of resolutions declaring City-owned property non-exempt surplus land will not have a significant effect on the environment, and any future project proposed for either site would be subject to separate CEQA review. PRIOR CITY COUNCIL REVIEW: Not Applicable. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not Applicable. NOTIFICATION: California Department of Housing and Community Development Rancho Mission Viejo Company Blenheim Facilities Management Robert Socci, Ortega Cottages OTRA, Inc. St. Margaret’s Episcopal School Interested Parties Notification List ATTACHMENTS: Attachment 1 – Proposed Resolution Declaring Calle Arroyo Parcel Surplus Land Attachment 2 – Proposed Resolution Declaring Riding Park Parcel Surplus Land Attachment 3 – Calle Arroyo Parcel Location Map Attachment 4 – Riding Park Parcel Location Map 1 6/15/2021 RESOLUTION NO. 21-06-15-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, FINDING AND DECLARING THAT CERTAIN REAL PROPERTY (CALLE ARROYO PARCEL) IS NON- EXEMPT SURPLUS LAND, APPROVING THE FORM OF NOTICE OF AVAILABILITY THEREFOR, AUTHORIZING THE CITY MANAGER TO COMPLY WITH THE SURPLUS LAND ACT, AND FINDING THE FOREGOING CATEGORICALLY EXEMPT FROM CEQA REVIEW WHEREAS, the City of San Juan Capistrano (“City”) currently owns in fee that certain real property, Calle Arroyo Parcel, generally located at Calle Arroyo & Rancho Viejo Road in the City of San Juan Capistrano (APN: 666-232-08) and legally described in Exhibit “A” attached to this resolution and incorporated by reference herein (the “Property”); and WHEREAS, the City has no use for the Property and desires to sell the Property. WHEREAS, California Government Code Section 54220 et seq. (the “Surplus Land Act”) requires that prior to the disposal of any surplus land, unless an exemption applies, a local agency must issue a Notice of Availability to specified entities depending on the purpose to which the City intends to put the Property; and WHEREAS, because at least one of the City’s purposes for the Property is for the creation of open space and/or parks and recreation, the City must issue the Notice of Availability to affordable housing developers under Section 54222(a)(1) of the Surplus Land Act and to specified local and state parks authorities pursuant to Section 54222(b) of the Surplus Land Act; and WHEREAS, Thereafter, if any entity submits a qualified Notice of Interest within sixty (60) days of issuance of the Notice of Availability, the local agency must negotiate in good faith for at least ninety (90) days with any such submitting entities; and WHEREAS, the Property is not exempt from the Surplus Land Act; and WHEREAS, a form of Notice of Availability is attached hereto as Exhibit B; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein and made an operative part of this Resolution. SECTION 2. CEQA Findings. The City Council of the City hereby finds and determines that the determinations, approvals, and authorizations in this resolution are not “projects” as defined in California Environmental Quality Act (CEQA) Guidelines section 15378, because none of these acts has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change ATTACHMENT 1 2 6/15/2021 in the environment. Therefore, CEQA does not apply here. See CEQA Guidelines section 15060(c)(3). In the alternative, even if the actions contemplated here constituted a “project” under CEQA, they involve the sale of surplus government property, and the sale of surplus government property is exempt from environmental review under CEQA pursuant to a Class 12 categorical exemption. Specifically, the government property is not located in an area of statewide, regional or areawide concern as defined in CEQA Guidelines section 15206(b)(4). The Property is not located in any of the following: the Lake Tahoe Basin, the Santa Monica Mountains Zone, the California Coastal Zone, an area within ¼ mile of a wild and scenic river, the Sacramento-San Joaquin Delta, the Suisun Marsh, or the jurisdiction of the San Francisco Bay Conservation and Development Commission. Therefore, the City Council’s adoption of this Resolution is exempt from CEQA review. The City Council of the City hereby further finds and determines that none of the exceptions to the categorical exemptions in CEQA Guidelines section 15300.2 applies. Specifically, the proposed project would not result in a cumulative impact of s uccessive projects of this same type in the same place. The City can only sell this property once. Moreover, the City’s disposal of this surplus land does not involve a reasonable possibility that the sale will have a significant effect on the environment due to unusual circumstances. There is nothing unusual about the disposal of surplus land that would lead to an environmental effect. The Property is not located within or adjacent to a highway officially designated as a state scenic highway. Thus, the sal e of the property would not result in damage to scenic resources within such a designated highway. The Property is not on the Cortese list compiled pursuant to Government Code section 65962.5. The Property is not a historical resource and thus the sale of it would not impact such a resource. Thus, none of the exceptions to the categorical exemptions applies. The PSA is exempt from environmental review and no further environmental documentation is required by the California Environmental Quality Act. SECTION 3. Surplus Land Act Findings. The City Council of the City hereby finds and determines that the Property is “surplus land” as used in the Surplus Land Act, because the Property is owned in fee simple by the City, and the Property is surplus and is not necessary for the City’s use. SECTION 4. Notice of Availability. The City Council of the City hereby approves the form of Notice of Availability substantially in the form attached hereto as Exhibit B. SECTION 5. Authorization to Comply with Surplus Land Act. The City Council of the City hereby authorizes the City Manager or his designee to take all necessary actions to fully comply with the Surplus Land Act without further need to obtain City Council approval. SECTION 6. Notice of Exemption. The City Council hereby directs staff to prepare, execute and file with the Orange County Clerk a Notice of Exemption within five working days of the approval of the Resolution. 3 6/15/2021 SECTION 7. Custodian of Documents. The custodian of documents constituting the record of proceedings for this matter is the City Clerk of the City of San Juan Capistrano. The documents constituting the record of proceedings for this matter are located at City Hall at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. SECTION 8. Severability. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable. SECTION 9. Effective Date. This Resolution shall become effective immediately upon its adoption. The City Clerk of the City of San Juan Capistrano shall certify as to the adoption of this Resolution. PASSED, APPROVED, AND ADOPTED this 15th day of June 2021. _____________________________________ JOHN TAYLOR, MAYOR ATTEST: ________________________________ MARIA MORRIS, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, Maria Morris, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 21-06-15-XX was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 15th day of June 2021, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ____________________________ MARIA MORRIS, CITY CLERK 4 6/15/2021 EXHIBIT “A” TO RESOLUTION NO. 21-06-15-XX LEGAL DESCRIPTION OF PROPERTY REAL PROPERTY IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: LOT “G” AS SHOWN ON A MAP FILED FEBRUARY 7, 1980 IN BOOK 143, PAGES 1 THROUGH 8 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA AND AS AMENDED BY A MAP FILED NOVEMBER 22, 1982 IN BOOK 176, PAGES 1 THROUGH 8 OF SAID PARCEL MAPS. EXCEPTING THEREFROM A PORTION THEREOF, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM AND WIFE BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537 OF OFFICIAL RECORDS. Assessor’s Parcel Number: 666-232-08 5 6/15/2021 EXHIBIT “B” TO RESOLUTION NO. 21-06-15-XX NOTICE OF AVAILABILITY June 16, 2021 To All Interested Parties: RE: Notice of Availability for Sale of Surplus Property (City of San Juan Capistrano) As required by Government Code Section 54220 of the State of California, the City of San Juan Capistrano is providing notification that the City intends to sell an approximately 1-acre parcel (“Calle Arroyo property”) (APN: 666-232-08). The subject property is located at Calle Arroyo and Rancho Viejo Road with a General Plan Land Use Designation of Community Park, and Zoning classification of Planned Community (CDP78-1). Allowed uses are recreational in nature including sports fields, equestrian, public facilities, flood control channels, levees and drains, and accessory structures. In accordance with Government Code Section 54222, interested parties have sixty (60) days from the date this offer was sent via certified mail or electronic mail to notify the City of interest in purchasing the property. However, this offer shall not obligate the City to sell the property to an interested entity. Instead, the City would enter into at least ninety (90) days of negotiations with an interested party pursuant to Government Code Section 54223. If no agreement is reached on sale price or agreement terms, the City may enter into negotiations with the general public. Prior to notifying the City of interest in purchasing the property, prospective buyers are encouraged to review the significant development constraints and use prohibitions that exist on the property which are outlined below. 1. Land Use Restrictions The community of San Juan Capistrano places a high priority on the preservation of open space lands; in fact, voters have twice passed local property tax assessments to purchase open space land. In recognition of this commitment and long-held value, in 2008 residents passed a ballot measure to affirm the importance of open space. Measure X was passed (78.8% support) to establish that any land designated as Open Space would not transition to another land use designation without a vote of the people. The Calle Arroyo property is designated Open Space Community Park, which is governed by SJC Municipal Code 9- 2.104. Therefore, the change to a General Plan and Zoning designation to allow residential uses would be subject to a city-wide ballot measure. Any potential residential/affordable housing developer would be required to undertake the typical discretionary/legislative land use revision process, and then also be subject to a separate voter approval process. If the legislative or voter approval process fails, the land cannot be developed with residential uses. For additional background into the residents’ intention to preserve open space lands, the 2008 Measure X ballot language and corresponding excerpt from the Municipal Code is provided as Attachment 1. EXHIBIT B Notice of Availability for Sale of Surplus Property (City of San Juan Capistrano – Calle Arroyo Property) Page 2 of 4 June 16, 2021 2. Federal Emergency Management Agency Requirements The subject property is currently situated in the Special Flood Hazard Area (SFHA) and spans across two FEMA designated flood zones (AE and the Floodway). The designation AE indicates areas at high risk for flooding and the Floodway is defined as the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without increasing the water surface elevation. Approximately 14,600 sf of the property resides within the Floodway, and approximately 32,400 sf is located within the AE flood zone. Development within the Floodway is especially restrictive and would require extensive studies to first determine if construction of habitable structures is even possible. Development encroachment within the Floodway is prohibited unless the developer or applicant provides a “No-Rise” certification which confirms that there will be no increase in the base flood elevation as a result of the development. The placement of physical improvements such as housing structures while achieving a “No-Rise” condition would likely be infeasible. Development or construction may occur in the AE zone provided that City Municipal Code and National Flood Insurance Program (NFIP) regulations are followed. In general, the developer would be required to raise the existing grades above the Base Flood Elevations (BFE) or design a flood proofed structure that meets minimum NFIP requirements. The BFEs for this property vary from approximately 93’ to 96’. A future applicant would need to verify these elevations based on survey measurements. Both scenarios would require technical hydrologic and hydraulic analysis that depicts any changes to the floodplain as a result of the constructed improvements and any fill created within the improvements. The study must confirm that the constructed facilities are not creating any adverse or flooding impacts to the adjacent properties. This analysis is subject to FEMA’s review and approval. There is also a possibility that a portion of the property that lies within the mapped Floodway could encroach into a Waters of the United States (WOTUS). In order to rule out any construction encroachment into the WOTUS, a Jurisdictional Delineation Report and a Biological Study would need to be performed. If it is determined that there is encroachment into WOTUS, multiple resource agency permits may be required from the United States Fish & Wildlife Service, United States Army Corps of Engineers, California Department of Fish & Wildlife, and San Diego Regional Water Quality Control Board. Additionally, depending on the findings and what is found in the area of disturbance, mitigation of disturbed vegetation or wildlife could be required as part of a future development. Any development proposal would require completion of technical studies and be designed and constructed in a manner that would likely not enable a housing project. The process of identifying and cost of implementing on and off- site mitigation are additional factors that make development of housing on this one-acre parcel infeasible. Notice of Availability for Sale of Surplus Property (City of San Juan Capistrano – Calle Arroyo Property) Page 3 of 4 June 16, 2021 3.Property Access Constraints The Calle Arroyo parcel is landlocked with no legal access. The current licensee accesses the parcel through a nonbinding agreement with the adjacent property owner who has indicated long-term ongoing access would not be granted. The property’s access constraints are further illustrated on the aerial provided below. Conclusion After reviewing the development constraints that exist on the property, if your agency or company is interested in purchasing the property, you must notify the City in writing within sixty (60) days of the date this notice was sent via certified mail or electronic mail. Notice of your interest in acquiring the property shall be delivered to Charlie View, Assistant City Manager at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. You may also direct your questions to cview@sanjuancapistrano.org or by calling (949) 443- 6322. As required by Government Code Section 54227, if the City receives more than one letter of interest during this 60-day period, it will give first priority to entities proposing to develop housing where at least 25 percent of the units will be affordable to lower income households. If more than one such proposal is Notice of Availability for Sale of Surplus Property (City of San Juan Capistrano – Calle Arroyo Property) Page 4 of 4 June 16, 2021 received, priority will be given to the proposal with the greatest number of affordable units. If more than one proposal specifies the same number of affordable units, priority will be given to the proposal that has the lowest average affordability level. Additionally, entities proposing to submit a letter of interest are advised to review the requirements set forth in the Surplus Land Act (Government Code Section 54220- 54234). ATTACHMENT: ATTACHMENT 1 – 2008 Measure X Ballot Language and Municipal Code Excerpt 1 ATTACHMENT 1 Exhibit B - Attachment 1: 2008 Ballot Measure Language “Shall the voters of the City of San Juan Capistrano adopt an ordinance adding section 9-2.104 to the Municipal Code requiring that any pending or future proposed General Plan designation change for any land presently designated as "Open Space" in the City's General Plan to another allowable use shall not become legally effective unless the proposed General Plan change is approved by the city electorate at a special or general city election?" San Juan Capistrano Municipal Code Sec. 9-2.104. Voter approval requirement for Open Space General Plan designation changes. (a)Statement of Intent. The people of the City of San Juan Capistrano declare that the preservation of open space within the City has been and continues to be a high priority for the community. Land designated by the City’s General Plan as open space land should not be changed to other allowable land uses without voter review and approval at a citywide election. Accordingly, this section is intended to require voter approval of proposed changes to City General Plan designated open space land in accordance with the procedures of this section. (b)Voter approval for General Plan Open Space designation changes. After the legally effective date of this section, any pending or future proposed General Plan designation change for any land designated for as “Open Space” to another allowable land use shall not become legally effective unless the proposed General Plan change is approved by the City electorate at the time of a City general or special election, or other state-side election held pursuant to Elections Code Section 1000. This section applies only to changes in General Plan designations as described in this section. This voter approval requirement is intended to preclude any form of amendment to any existing General Plan designated open space parcel by any future City Council by a process of change or amendment to “definitions” or other statement of permissible uses presently describing authorized uses under the Open Space designation of the General Plan, unless such change or amendment is submitted to and approved by a vote of the people. (c)Normal planning process is applicable to General Plan designation changes prior to holding an election. A citywide election on the question of whether to approve a General Plan Open Space designation change shall not be ordered until the General Plan amendment application is first processed before the Planning Commission and City Council in accordance with Municipal Code and State Planning Law requirements, and the City Council has formally approved the General Plan designation change by adoption of an appropriate resolution. (d)Timing and cost of election. (1)Should it be necessary to conduct an election pursuant this section, the City Council may order the election to be held on a City general election date, other statewide gene ral election date provided for under Elections Code Section 1000, or special election date; 2 (2)The City shall bear the cost of ballot measure at a City general election. The applicant shall bear the full cost of the election if the applicant has requested that the ballot measure be held on a statewide election or special City election date. (e)Future amendments. Pursuant to Elections Code Section 9217, this section may not be amended or repealed unless such amendatory or repeal proposal is submitted to a vote of the people. (Ord. No. 940-A, § 1, 12-2-2008) 1 6/15/2021 RESOLUTION NO. 21-06-15-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, FINDING AND DECLARING THAT CERTAIN REAL PROPERTY (RANCHO MISSION VIEJO RIDING PARK AT SAN JUAN CAPISTRANO) IS NON-EXEMPT SURPLUS LAND, APPROVING THE FORM OF NOTICE OF AVAILABILITY THEREFOR, AUTHORIZING THE CITY MANAGER TO COMPLY WITH THE SURPLUS LAND ACT, AND FINDING THE FOREGOING CATEGORICALLY EXEMPT FROM CEQA REVIEW WHEREAS, the City of San Juan Capistrano (“City”) currently owns in fee that certain real property, Rancho Mission Viejo Riding Park at San Juan Capistrano, generally located at Ortega Highway and Avenida La Pata in the City of San Juan Capistrano (APN: 125-172-24) and legally described in Exhibit “A” attached to this resolution and incorporated by reference herein (the “Property”); and WHEREAS, the City has no use for the Property and desires to lease the Property; and WHEREAS, California Government Code Section 54220 et seq. (the “Surplus Land Act”) requires that prior to the disposal of any surplus land, unless an exemption applies, a local agency must issue a Notice of Availability to specified entities depending on the purpose to which the City intends to put the Property; and WHEREAS, because at least one of the City’s purposes for the Property is for the creation of open space and/or parks and recreation, the City must issue the Notice of Availability to affordable housing developers under Section 54222(a)(1) of the Surplus Land Act and to specified local and state parks authorities pursuant to Section 54222(b) of the Surplus Land Act; and WHEREAS, Thereafter, if any entity submits a qualified Notice of Interest within sixty (60) days of issuance of the Notice of Availability, the local agency must negotiate in good faith for at least ninety (90) days with any such submitting entities; and WHEREAS, the Property is not exempt from the Surplus Land Act; and WHEREAS, a form of Notice of Availability is attached hereto as Exhibit B; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein and made an operative part of this Resolution. SECTION 2. CEQA Findings. The City Council of the City hereby finds and determines that the determinations, approvals, and authorizations in this resolution are not “projects” as defined in California Environmental Quality Act (CEQA) Guidelines ATTACHMENT 2 2 6/15/2021 section 15378, because none of the se acts has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect phys ical change in the environment. Therefore, CEQA does not apply here. See CEQA Guidelines section 15060(c)(3). In the alternative, even if the actions contemplated here constituted a “project” under CEQA, they involve the sale of surplus government property, and the sale of surplus government property is exempt from environmental review under CEQA pursuant to a Class 12 categorical exemption. Specifically, the government property is not located in an area of statewide, regional or areawide concern as defined in CEQA Guidelines section 15206(b)(4). The Property is not located in any of the following: the Lake Tahoe Basin, the Santa Monica Mountains Zone, the California Coastal Zone, an area within ¼ mile of a wild and scenic river, the Sacramento -San Joaquin Delta, the Suisun Marsh, or the jurisdiction of the San Francisco Bay Conservation and Development Commission. Therefore, the City Council’s adoption of this Resolution is exempt from CEQA review. The City Council of the City hereby further finds and determines that none of the exceptions to the categorical exemptions in CEQA Guidelines section 15300.2 applies. Specifically, the proposed project would not result in a cumulative impact of successive projects of this same type in the same place. The City can only sell this property once. Moreover, the City’s disposal of this surplus land does not involve a reasonable possibility that the sale will have a significant effect on the environment due to unusual circumstances. There is nothing unusual about the disposal of surplus land that would lead to an environmental effect. The Property is not located within or adjacent to a highway officially designated as a state scenic highway. Thus, the sale of the property would not result in damage to scenic resources within such a designated highway. The Property is not on the Cortese list compiled pu rsuant to Government Code section 65962.5. The Property is not a historical resource and thus the sale of it would not impact such a resource. Thus, none of the exceptions to the categorical exemptions applies. The PSA is exempt from environmental review and no further environmental documentation is required by the California Environmental Quality Act. SECTION 3. Surplus Land Act Findings. The City Council of the City hereby finds and determines that the Property is “surplus land” as used in the Surplus La nd Act, because the Property is owned in fee simple by the City, and the Property is surplus and is not necessary for the City’s use. SECTION 4. Notice of Availability. The City Council of the City hereby approves the form of Notice of Availability substantially in the form attached hereto as Exhibit B. SECTION 5. Authorization to Comply with Surplus Land Act. The City Council of the City hereby authorizes the City Manager or his designee to take all necessary actions to fully comply with the Surplus Land Act without further need to obtain City Council approval. SECTION 6. Notice of Exemption. The City Council hereby directs staff to prepare, execute and file with the Orange County Clerk a Notice of Exemption within five working days of the approval of the Resolution. 3 6/15/2021 SECTION 7. Custodian of Documents. The custodian of documents constituting the record of proceedings for this matter is the City Clerk of the City of San Juan Capistrano. The documents constituting the record of proceedings for this matter are located at City Hall at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. SECTION 8. Severability. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable. SECTION 9. Effective Date. This Resolution shall become effective immediately upon its adoption. The City Clerk of the City of San Juan Capistrano shall certify as to the adoption of this Resolution. PASSED, APPROVED, AND ADOPTED this 15th day of June 2021. _____________________________________ JOHN TAYLOR, MAYOR ATTEST: ________________________________ MARIA MORRIS, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, Maria Morris, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 21-06-15-XX was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 15th day of June 2021, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ____________________________ MARIA MORRIS, CITY CLERK 4 6/15/2021 EXHIBIT “A” TO RESOLUTION NO. 21-06-15-XX LEGAL DESCRIPTION PARCEL 7 OF EASTERN OPEN SPACE (RANCHO MISSION VIEJO RIDING PARK AT SAN JUAN CAPISTRANO): 5 6/15/2021 6 6/15/2021 EXHIBIT “B” TO RESOLUTION NO. 21-06-15-XX NOTICE OF AVAILABILITY EXHIBIT B June 16, 2021 To All Interested Parties: RE: Notice of Availability to Lease Surplus Property (City of San Juan Capistrano) As required by Government Code Section 54220 of the State of California, the City of San Juan Capistrano is providing notification that the City intends to lease the approximately 70-acre Rancho Mission Viejo Riding Park at San Juan Capistrano City-owned parcel (APN: 125-172-24). The subject property is located at Ortega Highway an Avenida La Pata with a General Plan Land Use Designation of General Open Space, and Zoning Classification of Open Space Recreational. An aerial map of the site is provided as Attachment 1.Allowed uses are recreational in nature including sports fields, equestrian, public facilities, and accessory structures. In accordance with Government Code Section 54222, interested parties have sixty (60) days from the date this offer was sent via certified mail or electronic mail to notify the City of interest in leasing the property. However, this offer shall not obligate the City to lease the property to an interested entity. Instead, the City would enter into ninety (90) days of negotiations with an interested party pursuant to Government Code Section 54223. If no agreement is reached on lease terms, the City may enter into negotiations with the general public. Prior to notifying the City of interest in leasing the property, prospective lessees are encouraged to review the significant development constraints and use prohibitions outlined below that exist on the property. 1.Land Use Restrictions The community of San Juan Capistrano places a high priority on the preservation of open space lands; in fact, voters have twice passed local property tax assessments to purchase open space land. In recognition of this commitment and long-held value, in 2008 residents passed a ballot measure to affirm the importance of open space. Accordingly, Measure X was passed (78.8% support) to establish that any land designated as Open Space would not transition to another land use designation without a vote of the people. The Riding Park is designated Open Space Community Park, which is governed by SJC Municipal Code 9-2.104. Therefore, the change to a General Plan and Zoning designation to allow residential uses would be subject to a citywide ballot measure. Any potential residential/affordable housing developer would be required to undertake the typical discretionary/legislative land use revision process, and then also be subject to a separate voter approval process. If the legislative or voter approval process fails, the land could not be developed with residential uses. For additional background into the residents’ intention to preserve open space lands, the 2008 Measure X ballot language and corresponding excerpt from the Municipal Code is provided as Attachment 2. Notice of Availability for Lease of Surplus Property (City of San Juan Capistrano – Riding Park Property) Page 2 of 3 June 16, 2021 2. Deed Restriction The subject property is part of a larger City land holding commonly known as the Eastern Open Space. As discussed above, the voters of San Juan Capistrano have approved local assessments to fund acquisition of open space. In 2010, the City purchased the Eastern Open Space lands from the Rancho Viejo Company (RMV) for $27.5 million. As part of the purchase, RMV required the City to agree to restrict the use of the land to agricultural, equestrian, sports fields and temporary uses. As specified in section 15.1(c) of the Purchase and Sale Agreement (PSA), the use restrictions run with the land and are binding upon any person or entity acquiring right, title or interest in a portion of the land. In addition, Section 15.1(d) establishes that should the land be used for any use other than the allowed uses, RMV may terminate the City’s estate (ownership) in the Property. A portion of the PSA with Section 15 is provided as Attachment 3. 3. Sensitive Resource Areas Portions of the subject property contain regionally important vegetation and habitat areas that are identified as Sensitive Resource Areas governed by US Fish and Wildlife Services, California Department of Fish and Wildlife, United States Army Corps of Engineers, and San Diego Regional Water Quality Control Board regulations. Any disruption of Sensitive Resource Areas requires the permission of Rancho Mission Viejo Company and likely the regional enforcement agencies. Further, a Conservation Easement is recorded against the property which identifies Do Not Disturb Areas that may not be amended and prohibits a variety of uses, including residential uses, within the Sensitive Resource Areas. Additionally, any potential impact to the Sensitive Resource Areas is prohibited between January 15 to September 15 annually to preserve environmental conditions for the bird breeding season. 4. Permanent Lighting Prohibition As part of the purchase, RMV prohibited the use of permanent lighting on the property. 5. Ephemeral Wash (Waters of the United States and Waters of the State) An ephemeral wash, or a stream that flows only during a rain event, exists on the property. The stream is prone to flooding during a rain event and would require significant remediation to avoid impacts to a potential development on the property. The ephemeral wash is considered a Waters of the United States under federal law and a Waters of the State under California law. The United States Army Corps of Engineers (USACE) and the United State Fish & Wildlife Service are the federal agencies with jurisdiction over Waters of the United States and require federal permits for construction in an ephemeral wash. The San Diego Regional Water Quality Control Board and the California Department of Fish & Wildlife are the state agencies with jurisdiction over Waters of the State and require state permits for construction in an ephemeral wash. As part of the permitting process and prior to any construction activities, each of the four agencies previously referenced must be consulted to determine if construction activities would impact the streamflow or vegetative habitat withing the ephemeral wash, and to determine potential mitigation requirements. Additionally, the lowest portion of the ephemeral wash is located within a conservation easement which prohibits any construction in this area, regardless of proposed mitigation. Notice of Availability for Lease of Surplus Property (City of San Juan Capistrano – Riding Park Property) Page 3 of 3 June 16, 2021 6. Rancho Mission Viejo Rodeo As a condition to the City’s purchase of the property, it must be made available without charge for the last two weeks of August for the Rancho Mission Viejo Rodeo (or similar event) each year. 7. Maximum Weekday Vehicular Trips A deed restriction was placed on the property as a condition of the City’s purchase that limits weekday vehicular trips to and from the property. Pursuant to the deed restriction, a total of 203 combined inbound and outbound trips are permitted on each weekday. Conclusion After reviewing the development constraints that exist on the property, if your agency or company is interested in leasing the property, you must notify the City in writing within sixty (60) days of the date this notice was sent via certified mail or electronic mail. Notice of your interest in acquiring the property shall be delivered to Charlie View, Assistant City Manager at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. You may also direct your questions to cview@sanjuancapistrano.org or by calling (949) 443-6322. As required by Government Code Section 54227, if the City receives more than one letter of interest during this 60-day period, it will give first priority to entities proposing to develop housing where at least 25 percent of the units will be affordable to lower income households. If more than one such proposal is received, priority will be given to the proposal with the greatest number of affordable units. If more than one proposal specifies the same number of affordable units, priority will be given to the proposal that has the lowest average affordability level. Additionally, entities proposing to submit a letter of interest are advised to review the requirements set forth in the Surplus Land Act (Government Code Section 54220-54234). ATTACHMENT: ATTACHMENT 1 – Site Map ATTACHMNET 2 – 2008 Measure X Ballot Language and Municipal Code Excerpt ATTACHMENT 3 – Portion of Eastern Open Space Purchase Agreement 3ATTACHMENT 1 Attachment 1 to Exhibit B 1 ATTACHMENT 2 Exhibit B - Attachment 2: 2008 Ballot Measure Language “Shall the voters of the City of San Juan Capistrano adopt an ordinance adding section 9-2.104 to the Municipal Code requiring that any pending or future proposed General Plan designation change for any land presently designated as "Open Space" in the City's General Plan to another allowable use shall not become legally effective unless the proposed General Plan change is approved by the city electorate at a special or general city election?" San Juan Capistrano Municipal Code Sec. 9-2.104. Voter approval requirement for Open Space General Plan designation changes. (a)Statement of Intent. The people of the City of San Juan Capistrano declare that the preservation of open space within the City has been and continues to be a high priority for the community. Land designated by the City’s General Plan as open space land should not be changed to other allowable land uses without voter review and approval at a citywide election. Accordingly, this section is intended to require voter approval of proposed changes to City General Plan designated open space land in accordance with the procedures of this section. (b)Voter approval for General Plan Open Space designation changes. After the legally effective date of this section, any pending or future proposed General Plan designation change for any land designated for as “Open Space” to another allowable land use shall not become legally effective unless the proposed General Plan change is approved by the City electorate at the time of a City general or special election, or other state-side election held pursuant to Elections Code Section 1000. This section applies only to changes in General Plan designations as described in this section. This voter approval requirement is intended to preclude any form of amendment to any existing General Plan designated open space parcel by any future City Council by a process of change or amendment to “definitions” or other statement of permissible uses presently describing authorized uses under the Open Space designation of the General Plan, unless such change or amendment is submitted to and approved by a vote of the people. (c)Normal planning process is applicable to General Plan designation changes prior to holding an election. A citywide election on the question of whether to approve a General Plan Open Space designation change shall not be ordered until the General Plan amendment application is first processed before the Planning Commission and City Council in accordance with Municipal Code and State Planning Law requirements, and the City Council has formally approved the General Plan designation change by adoption of an appropriate resolution. (d)Timing and cost of election. (1)Should it be necessary to conduct an election pursuant this section, the City Council may order the election to be held on a City general election date, other statewide gene ral election date provided for under Elections Code Section 1000, or special election date; 2 ATTACHMENT 2 (2)The City shall bear the cost of ballot measure at a City general election. The applicant shall bear the full cost of the election if the applicant has requested that the ballot measure be held on a statewide election or special City election date. (e)Future amendments. Pursuant to Elections Code Section 9217, this section may not be amended or repealed unless such amendatory or repeal proposal is submitted to a vote of the people. (Ord. No. 940-A, § 1, 12-2-2008) • • • AMOUNT BE PAID TO IT BY CITY AS LIQUIDATED DAMAGES. CITY'S PAYMENT TO SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENAL TY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. NOTHING IN THIS SECTION 13. 1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS' FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 18.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTIONS 4.3.1 AND 14 HEREQF. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF T,_,-H~IS~-.... SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND/¥"_ ITS ~ TERMS. ~ ~ Seller's Initials/ /], ~ Buyer's Initials': I " ' 13.2 Default bv Seller. If Seller defaults in its obligations to sell and convey thiP~bperty to Buyer pursuant to this Agreement, Buyer's sole and exclusive remedy shall be to elect one of the following: (a) to terminate this Agreement. or (b) to bring a suit for specific performance provided that any suit for specific performance must be brought as to the Property within thirty (30) days of Seller's default, Buyer's waiving the right to bring suit at any later date to the extent permitted by law. This Agreement confers no present right, title or interest in the Property to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with. and after, the proper filing of a suit for specific performance. 14. BROKER'S COMMISSIONS. Neither party hereto has had any contact or dealing regarding the Real Property, or any communication in connection with the subject matter of this transaction, through any licensed real estate broker or other person who can claim a right to a commission or finder's fee as a procuring cause of the sale contemplated herein. In the event that any other broker or finder perfects a claim for a commission or finder's fee, the party responsible for the contact or communication on which the broker or finder perfected such claim shall indemnify, save harmless and defend the other party from said claim and all costs and expenses (including reasonable attorneys' fees) incurred by the other party In defending against the same. 15. USE RESTRICTIONS; SELLER'S RESERVED RIGHTS. The Property is located within an area owned by Seller and its affliated entities whic11 Is commonly known as the "Ranch Plan Property; which is described/depicted on Exhibit a attached hereto. The Ranch Plan Property has been comprehensively planned over many years and has received several governmental approvals including, but not limited to: 1) approval by the Orange County Board of Supervisors on November 8, 2004 of General Plan Amendments, the Ranch Plan Planned Community Zoning (the "Ranch Plan PC"), with its associaled "PC Text," and a Development Agreement, all of which include provision for needed residential and commercial uses, and the future preservation of open space uses on over 16,000 acres of the Ranch Plan Property ("Future RMV Habitat Reserve Dedication Areas"), and 2) approval by the County and the US Fish and Wildlife Service ("USFWS") of the Southern Subregion Habitat Conservation Plan ("Southern Subregion HCP") dated January 10, 2007 that provides a comprehensive conservation strategy including designation of the Future RMV Habitat Reserve Dedication Areas for eventual inclusion as part of the HCP Habitat Reserve. The use restrictions and covenants set forth in this Section 15 and in the following Section 16 are critical to implementation of the Ranch Plan PC and the Southern Subregion HCP in an integrated fashion and wlll greatly benefd the entire Ranch Plan Property (the "Benefited Area"). Pursuant to this section, the "Ranch Plan" is defined by the entitlements and approvals thereof including the above-referenced General Plan Amendments, Ranch Plan PC and Development Agreement, all as amended by certain settlement agreements With the cities of San Clemente and Mission Viejo and a settlement agreement with certain resource organizations (NRDC. Sierra Club, Endangered Habitats League, Sea & Sage Audubon and Laguna Greenbelt) dated December 8, 2004, June 9, 2005 and August 16, 2005, respectively. Additional entiUements and approvals defining the 082/21183021.2 16 Portion of RMV Community Development Purchase and Sale Agreement Eastern Open Space (ATTACHMENT 3 to EXHIBIT B): ATTACHMENT 3 Page 1 of 3 • • • Ranch Plan Include the Southern Subregion HCP, the San Juan Creek and Western San Mateo Creek Watersheds Special Area Management Plan (•SAMP") approved by the US Army Corps of Engineers C-USACE") dated March 18, 2007, the Master Stn,ambed Alteration Agreement approved by theCallfomla Department of Fish and Game ("CDFG") dated September 29, 2008. and various exiating approvals by the San Diego Regional Water Quality Control Board (•SORWQCB•): 15.1 R,mictlons on U.. of Raal Property. (a)Paralt 1 aKt a. (I) The use of Parcels 7 and 8 shall be restricted to (1) those usesdescribed as existing uses on the Property In §action 4,1,2 land depicted on Exhibit 4.1-3) of the EIR for the Ranch Plan certlfled by the Board of Supervisors on November 8, 2004 (the "Ranch Plan Ell"), induding equestrian and spans field uses (Exhibit M-1 attached herelo1 (2) new agrlcultural uses as allowed under Section 111.H of the PC Text (eitJjbit M:2 attached hereto), and (3) temporary UH& as allowed under Section 111.J of the PC Text (gpbit M-3 attached hereto), subject to the further restriction that the uses described under {1 ), (2) and (3) above, lndMdually and/or cumulatively, &haH not increase traffic beyond the number of peak hour trips shown on Exhibit N attac:had hereto which represent a level of traffic that is consistent with the Uistlng uses on the Property together with certain addillonal trips c;orresponding to a portion of the trips associated with new sports field uses entitled as part of the Ranch Pla n. Any uses other than the foteg<>ing desaibed uses are prohibited, incllff;tlng, but not llmfted to, residential. commercial (except one commerdal equ•lrian facility) and industrial uses. Any permanent lighting, other than for security purposes, is also prohi>ited. (ii)Certain portions 9f Parcels 7 and 8 eontain important vegetation/habiatareas that are Identified as "Sensitiva Resource Areas· on Exhibit O attached hereto. RMV Is the only entity authorized by USFWS, CDFG, USACE and SDRWQCB to nm,ove or otherwlaa Impact the vegetation in these Sensitive ResOl.l'CB Araas. Aa such, if' and when Buyer decides it would like to remove or otherwise impact a,y of these areas, Bu� must request RMV to do so. Within ninety (90) days of receiving Bu�r's request, at Buyer's expense, Seller/RMV wilt remove the Sensitive Resource Area vegetation. Said vegetation will not be able to be removed during the bird breeding season -January 15 to September 15. (Iii) The location of any vehicular access into Parcels 7 and 8 from La Pata Road, current or future, shaN be consistent with the approved Ranch Plan en1lllements and shal require seller's prior written consent. To the extant practicable, existing access points to Parcels 7 and 8 will be maintained and Buyer agrees that it will not make any modifications to access from la Pata Road unti after ultimate Ranch Plan access has been finalized. (iv) City shall be prohibited from using any plants identified on the CaliforniaInvasive Plant Councll (Cal-lPC) as part of its landscaping on Parcels 7 and 8. At Seller's request, Ctty shall provide its landscaping plans to Seller for review and approval prior to lnstallatlon of same. (v)No portion of the Property (including Parcels 7 and 8, as well as the two open space pan:eJs) may be used or otherwise employed in 1he operation, distribution, transmission and/or provision of telecommunications and associated/related services (•TeJecommunlcations Services") from, on or abOut the Property. Buyer, its successors and assigns shall not grant, dedicate or otherwise provide any easements, licenses or other rights on, under, over, across or affecting the Property that are Intended to (or otherwise may) pennlt, authorize or allow any parson or entity to (I) provide, engage In or fac:;ilitate any Telecommunications Services from or upon the Property or (ii) build or operate any Telecommunications Facilities from or upon the Property. (1)For purposes of this Agreement, -r-a1ecommunications Facilities•shall mean (aa) Improvements, equipment and facilities for (I) telecommunlcaliona, (ii) transfer of audio, video and data signals, (ii) transfer of any other signals used for transmission of Intelligence by electrical, light wave, wireless frequencies or radio frequencies, and (Iv) any other methods of communication and l'lformation transfer, (bb) all associated improvements. equipment and facilities, including. but not limled to, antennas, towers, broadcasting and receiving devices, conduits, Junction boxes, wires, cables, fiber DB2/21183021.2 17 Page 2 of 3 • • • optics, and any other necessary or appropriate enclosures and connections, and (cc) power generation serving the improvements, equipment and facilities described in subparts (aa) and (bb) of this definition. (b) La Pata 0Den Space and Creek Open Space Parcels. (i) Prior to Close of Escrow, Seller shall have fully executed and delivered to Escrow Holder, in recordable form, lhe Conservation Easement covering the Creek Open Space Parcel and the La Pata Open Space Parcel. The form of the Conservation Easement (see Exhl~it J) has previously been negotiated with the wildlife agencies and is not subject to amendment pursuant to this Agreement. On the Closing Date, Escrow Holder shall be entitled to record the Conservation Easement in accordance with the provisions of 9.1 hereof which shall result in and/or confirm the enrollment of the respective parcels as part of the HCP Habitat Reserve pursuant to the Implementation Agreement for the Southern Subregion HCP which was entered into on January 10, 2007 by and between Rancho Mission Viejo, the County of Orange, SMWD and the USFWS. Notwithstanding anything to the contrary herein, Seller, in its sole and absolute discretion, shall have the right to record the Conservation Easement over all or any portion of the open space parcels at any time prior to the Close of Escrow. (ii) Upon their enrollment In the HCP Habitat Reserve, the use of the Creek Open Space Parcel and La Pata Open Space Parcel, both of which are within the "Oo Not Disturb" areas identified on Exhibit 0 attached hereto, shall be restricted in accordance with the Conservation Easement and the Implementation Agreement for the Southern Subregion HCP. Prohibited uses on these parcels are more particularly described in the Conservation Easement, the relevant portion of which is set forth in Exhibit P attached hereto. (iii) Should Buyer desire to allow any grazing of the La Pata Open Space Parcel, it would need to prepare and have approved by USFWS a grazing management plan for this area. The Buyer, RMV and the Rancho Mission Viejo Land Trust (the "RMVL T") shall cooperate in the preparation of said grazing management plan. Said grazing management plan shall require RMV's and RMVL T's approval prior to submission to USFWS. Any costs associated with RMV's and RMVL T's review of said grazing management plan shall be borne by Buyer. No grazing shall be allowed on the Creek Open Space Parcel under any circumstances (iv) If Buyer desires to construct any trail or bikeway over, through or within the Creek Open Space Parcel and/or La Pata Open Space Parcel other than the trails and bikeway described in Section 16.1(d) below, it shall obtain required approvals from the USFWS and all other federal, state and/or local agencies with jurisdiction over these areas, as well as the prior written consent of RMV and The Reserve. (c) RH!rictiqns Run with the Land. The use restrictions set forth in (a) and (b) above (collectively, the "Use Ftestrlc!lons") shall run wilh the land and be binding upon any person or entity who/that acquires any right, tme or interest in or to any portion of the Property and shall be enforceable by the assigns of and successors-in-interest to Sellers. Every person or entity who hereafter owns or acquires any right, tme or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to the Use Restrictions contained herein, whether or not any reference to the Deed is contained in the instrument by which such person acquired an interest in such portion of the Property. (d) Right of Re-Entrv; Power of Termination. The grant of the Property to Buyer is subject to the express condition that if the Property is ever used for any use other than those allowed uses specified in (a) and (b) above, then the Seller, its successors or assigns, shall have the right to re- enter the Property and exercise the power of termination of Buyer's estate in the Property: provided, however, Seller shall give Buyer at least fifteen (15) days prior written notice before exercising the power of termination and Buyer shall have the right to cure any use violation within that period . 092121183021.2 18 Page 3 of 3 ATTACHMENT 3 3ATTACHMENT 4