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RESOLUTION NO. PC2023-031
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CHINO, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL
ADOPTION OF UNCODIFIED ORDINANCE TO APPROVE A SECOND
AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF CHINO AND HILLSBOROUGH PHASE III, LLC, AND
MAKING FINDINGS OF GENERAL PLAN CONSISTENCY
WHEREAS, the City of Chino (“City”) Municipal Code (“CMC”) section 20.23.070 provides for the Planning Commission’s (“Commission”) consideration of development agreements, including amendments thereto, as permitted by California Government Code (“Govt. Code”) section 65864 et seq.; and
WHEREAS, Hillsborough Phase III , LLC (“Developer”) applied to amend the Development Agreement (“Development Agreement”) entered into by and between City and Developer on November 5, 2019 and amended on October 5, 2021 to allow Developer to undertake the development of approximately 1.42 acres of undeveloped real property generally located at 11918 Central Avenue Central Avenue, in the City (“Site”), directly south of the Pacifica Senior Living Hillsborough development, which Site is owned by Developer; and
WHEREAS, the Development Agreement provides for Developer to develop the Site with a three -story, 62 -unit senior citizen apartment complex (which shall be age- restricted to persons of age 55 or older), with certain units reserved for affordable housing, together with associated parking (“Project”); and
WHEREAS, Developer applied to extend the time in which the project is required to be constructed and completed by an additional two (2) years, so that Developer shall have until March 31, 2026 to complete construction of the Project per the terms of the Development Agreement;
WHEREAS, in conjunction with the extension of time under the Development Agreement, Developer has also sought an extension of time for the effectiveness of Site Approval PL16-0357 approved by this Planning Commission on October 7, 2019, and extended by previous approval of a time extension for one additional year, until October 7, 2024;
WHEREAS, the extension of time for the Project to be completed under the Development Agreement has been incorporated in the proposed Second Amendment to the Development Agreement, attached hereto as Exhibit “A” (“Amendment”) provided with this Resolution;
WHEREAS, the Planning Commission previously found that the Project will benefit the City by providing additional low-income and moderate- income and elderly housing RESOLUTION NO. PC2021-031
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facilities within the City, and ensure a desirable, attractive, and functional community environment for residents; and
WHEREAS, Chino Municipal Code section 20.23.070 (“DA Ordinance”) and Sections 65864-65859.5 of the Govt. Code authorize the City to enter into development agreements and amendments thereto with any person having a legal or equitable interest in real property and require the planning agency of the City to find the proposed development agreement to be consistent with the policies and programs of the City’s General Plan and the applicable Central Avenue Specific Plan (“CASP”); and
WHEREAS, in accordance with the terms of Measure U, the Site was automatically converted to Residential (RD-20) zone as a result of the approval of the Project and the Development Agreement by the City Council; and
WHEREAS, the proposed land use of the Project is consistent with the zoning requirements under the RD-20 zone, including the previously-authorized deviations from specific CMC requirements for developments located within the RD-20 zone, which deviations include various development incentives (“Incentives”) for the Project consistent with the density bonus provisions of the CMC (CMC Chapter 20.14) , based on the Project’s provision of affordable housing units, which Incentives included, among other things, a density bonus, and deviations to the CMC’s open space requirements, covered parking requirements, and landscape setback requirement, and the proposed Amendment does not impact such finding of consistency; and
WHEREAS, on December 20, 2023, the Planning Commission held a duly-noticed hearing for the proposed recommendation of the Amendment an d extension to Site Approval PL16-0357 in compliance with law, including compliance with the relevant provisions of the California Government Code and Chino Municipal Code, entertained the written and oral report of staff, and took public testimony on the Project, and
WHEREAS, City staff has prepared and the Developer has reviewed and concurred with the terms and conditions of the Amendment; and
WHEREAS, the proposed approv al of the Amendment is deemed to be categorically exempt from the requirements of the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) ("CEQA"), which exempts infill projects when the project is compatible with the General Plan land use designation and zoning designation and regulations, is no more than five acres substantially surrounded by urban uses, it is devoid of habitat for biological resources and the p roject site has no value as habitat for endangered, rare, or threatened species, the site is served by public utilities and services, and there are no impacts to traffic noise, air quality or water quality, and therefore, no further is environmental review is required under CEQA; and
WHEREAS, pursuant to California Government Code Sections 65867 and 65090, the City on December 9, 2023, 2023, published a legal notice indicating the public hearing to be held by the Planning Commission on December 20, 2023; RESOLUTION NO. PC2021-031
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WHEREAS, the Planning Commission considered the provisions of the Amendment at a public hearing on December 20, 2023, and all interested parties were given an opportunity to be heard regarding the Amendment; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, the Planning Commission of the City of Chino, Califo rnia, does hereby FIND, DETERMINE, and RESOLVE as follows:
A. The foregoing recitals are true and correct and incorporated herein.
B. Pursuant to the Government Section Code 65864 through 65869.5 and in light of the full record before it including the s taff report (and all attachments), and all evidence and testimony heard at the public hearing for this item, and in light of all evidence and testimony provided in connection with the Developer’s Site Approval application (PL16-0357) and the Incentives, the Planning Commission hereby makes the following findings:
(1) The Amendment is consistent with the General Plan and the CASP because the Development Agreement, as amended, and the Incentives granted for the Project for its provision of affordable housing will result in the development of the Site at the intensity and density allowed under the General Plan and consistent with the restrictions and development standards contained in the CASP and under the zoning code.
(2) The Amendment is con sistent with and furthers a number of goals and objectives under the General Plan. For example, Objective LU-1.1, P4 of the General Plan states the City shall encourage the development of senior housing. Additionally, the Project site was approved for senior housing as part of Measure U in 2001 and the proposed Project implements the voters’ intent in adopting Measure U. The Project also implements Goal HE-2 of the General Plan, by providing additional affordable housing to meet the needs of the communit y. The Development Agreement will help to serve the interests of Chino citizens and the public health, safety and welfare by providing for additional affordable housing and a substantial number of new senior housing units and ensures the Project is developed with an enhanced architectural design to provide for a desirable, attractive, and functional community environment for residents.
(3) The Amendment constitutes a lawful, present exercise of the City’s police power and authority under the Govt. Code and the City’s DA Ordinance.
C. Based upon all oral and written reports and presentations made by City staff and members of the public, including any attachments and exhibits, the Commission
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Chino
13320 Central Avenue
Chino, CA 91710
Attn: City Clerk
APN 1014-621-480-000 (Space Above For Recorder’s Use) Exempt from recording fees pursuant to Govt Code 27383
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
This Second Amendment to Development Agreement (“ Amendment”) is made and entered into as of this _____ day of ___________, 2024, by and between HILLSBOROUGH PHASE III, LLC, a California limited liability company ("Property Owner"), and the CITY OF CHINO, a municipal corporation organized and existing under the laws of the State of California ("City"). Property Owner and City are sometimes individually referred to herein as a "Party" and jointly as the "Parties."
RECITALS
A. Property Owner owns that certain real property consisting of approximately
7.2 acres, located at 11902 and 11930 Central Avenue in City of Chino, California , as legally described in Exhibit A and graphically described on Exhibit B attached to the Development Agreement ("Hillsborough Property").
B. The City and Property Owner entered into that certain Development Agreement dated November 5, 2019 with respect to the Hillsborough Property which was recorded on June 29, 2020 as Instrument No. 2020- 0215477 in the Official Records of San Bernardino County (“Development Agreement”).
C. Pursuant to the Development Agreement , the Property Owner is required to construct a three story, 62- unit senior citizen apartment complex on the undeveloped portion of the Hillsborough Property (“Project”) which was to be completed on or before March 31, 2021 (“Project Complete Date”).
D. Despite Property Owner ’s best efforts, processing the plans for the Project in accordance with the Chino Municipal Code and the Development Agreement were materially affected by the impacts of the COVID-19 pandemic resulting in unanticipated delays in obtaining applicable approvals and, therefore, the Project was not completed by the Project Completion Date.
E. The Development Agreement incorporate d the conditions of approval granted under Site Approval PL16 -0357 for the Project (“Site Approval”). Condition No. 1.1 provide d that the Site Approval would expire on October 7, 2020 if building permits were not obtained by that date (“Site Approval Expiration Date”).
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F. On September 20, 2021, following a duly noticed and conducted public hearing, the City’s Planning Commission approved Resolution No. PC2021 031, which recommended approval of modifications to the Development Agreement (“First Amendment No. 1”) so that the Development Plan, as defined therein, would now allow (i) the construction and completion of the Project by March 31, 2024, and (ii) reservation of another two (2) units affordable to low-income households so that a total of eight (8) units shall be made affordable for low-income households.
G. On October 5, 2021, following a duly noticed and conducted public hearing, the City Council approved the introduction of Ordinance No. 2021 011 (“Ordinance”), and on October 19, 2021, adopted after a second reading, adopted the Ordinance approving and authorizing the execution of the First Amendment to modify the Development Agreement as specified above. The Ordinance includes the modifications to the Development Plan as approved herein.
H. As part of its approval of the First Amendment, as stated in the Ordinance, the City Council determined the Project to be exempt from the California Environmental Quality Act (CEQA) Guidelines pursuant to Section 15332, Infill Development Projects.
J. For the past 18 months, Property Owner’s Director of Construction, Zaven Hanessian, has been battling cancer. Zaven Hanessian has been a foundational part of the Property Owner’s business and, without his guidance, this Project was unable to move forward.
K. However, in showing its commitment to move forward, Property Owner has hired Tony Coppolino as its new Director of Construction, with Zaven Hanessian serving in a consulting role as his health improves, to allow the Project to move forward.
L. Therefore, City and Property Owner wish to enter into this Second Amendment to update the Site Approval Expiration Date and extend the Project construction and completion date.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The Parties find that the above recitals are true and correct and incorporates them herein.
2. E ffective Date . This Amendment shall be effective upon recordation in the Official Records of San Bernardino County (“Effective Date”).
3. D efined Terms. Except as otherwise defined in this Amendment, all defined terms shall have the same meaning as set forth in the Development Agreement and the First Amendment to the Development Agreement approved on October 5, 2021. All references to “Agreement” shall mean the original Development Agreement and the First Amendment as amended by this Amendment.
4. R epresentations and Warranties. As of the Effective Date, Property Owner represents and warrants to the City that (i) it owns the Hillsborough Property which is not subject to any deeds of trusts or mortgages; (ii) has the right enter into this Amendment without the 099578\17106497v2
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consent of any third party; and (iii) this Amendment is binding on Property Owner and the Hillsborough Property.
5. Term. Section 4 of the First Amendment to the Development Agreement is amended as set forth below (additions shown in bold italics, deletions shown in strikethrough):
“4. Term of this Agreement. The term of this Agreement shall commence upon the Effective Date and shall expire twenty (20) years thereafter, unless sooner terminated or extended by the mutual consent of the parties or as otherwise provided herein. Unless this Agreement is extended beyond its twenty (20) year term, or terminated earlier pursuant hereto, it shall terminate upon the expiration of such term, and all rights and duties created by this Agreement in favor of any party shall be extinguished on the date of such termination except for the provisions of this Agreement that expressly survive such termination, any outstanding obligations of the parties hereunder not previously satisfied, and any unexpired Approvals.
Notwithstanding anything to the contrary herein, the parties acknowledge and agree that (i) the Project will be constructed and completed by March 31, 2026 March 31, 2024, and (ii) the affordability and age restrictions set forth in the Approvals, Conditions of Approval, and the Covenant Agreement attached hereto as Exhibit F shall remain in effect and be a continuing obligation binding on Property Owner and its successors and assigns for a period of fifty- five (55) years following the completion of construction of the Project.”
6. Conditions of Approval. The Conditions of Approval (Exhibit C) Section 1.1, is amended as set forth below (additions shown in bold italics, deletions shown in strikethrough):
Section 1.1 is amended in its entirely to read as follows:
“1.1. The above referenced Site Approval shall expire on October 7, 2024 October 7, 2023, if building permits are not obtained. The expiration date may be extended upon written request by the applicant on a City application form. The request must be received by the Director of Development Services at least 30 days prior to expiration of the application.”
7. C
onflict . Except as otherwise provided in this Amendment, the terms of the Agreement and the First Amendment shall remain in full force and effect. In case of any inconsistency between this Amendment and the Agreement and the First Amendment, the provisions containing such inconsistency shall first be reconciled with one another to the maximum extent possible, and then to the extent of any remaining inconsistency, the terms of this Amendment shall control.
8. S
uccessors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns, subject to any limitations on assignment set forth in the Agreement and the First Amendment. 099578\17106497v2
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9. Authority. Each individual executing this Amendment on behalf of Property Owner represents and warrants that he or she has been duly authorized to do so by the entity on whose behalf he or she executes this Amendment and said entity will thereby be obligated to perform the terms of this Amendment.
10. C ounterparts; Governing Law . This Amendment may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single agreement . This Amendment shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the Parties have execut ed this Second Amendment to the Development Agreement as of the date first set forth above.
PROPERTY OWNER: CITY:
HILLSBOROUGH PHASE III, LLC,
a California limited liability company
By:
Vache Hanessian, Manager
By:
Linda Shirvanian, Manager
By:
Kosti Shirvanian, Manager
CITY OF CHINO, a Municipal Corporation
By:
Eunice M. Ulloa, Mayor
ATTEST:
_________________________
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER LLC
By:
Fred Galante, City Attorney
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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 acknowl edged 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)
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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)
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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)
EXHIBIT A
Description of the Property
THE FOLLOWING REAL PROPERTY IN THE CITY OF CHINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA:
PARCEL 2 OF PARCEL MAP NO. 9624, IN THE CITY OF CHINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 111 OF PARCEL MAPS, PAGE(S) 71 AND 72, RECORDS OF SAID COUNTY.
APN: 1014-621-480-000