ORDINANCE NO. 2024-002
AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO, CALIFORNIA, APPROVING THE SECOND AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CHINO AND HILLSBOROUGH PHASE III, LLC FOR THE DEVELOPMENT OF A SENIOR HOUSING PROJECT WHEREAS, Hillsborough Phase III, LLC (“Applicant”) has applied to amend the Development Agreement (“Development Agreement”) entered into by and between the City of Chino (“City”) and Applicant on November 5, 2019, and approved by the City pursuant to Ordinance No. 2019-019, as amended by that First Amendment to the Development Agreement (“First Amendment”) on or about October 19, 2021, and approved by Ordinance No. 2021-011 to allow Applicant to develop 1.42 acres of undeveloped real property generally located at 11918 Central Avenue in the City (“Site”), directly south of the Pacifica Senior Living Hillsborough development, which Site is owned by the Applicant; and WHEREAS, the Development Agreement provides for the Applicant 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, the First Amendment requires the Applicant to complete development of the Project by March 31, 2024; WHEREAS, for nearly two years, Property Owner’s Director of Construction was facing medical issues. As a foundational part of the Property Owner’s business and, without his guidance, this Project was unable to move forward without the Director of Construction and, as a result, the Applicant applied for an additional amendment to the Development Agreement (“Second Amendment”) to extend the time required for completion of the Project to March 31, 2026; WHEREAS, in showing its commitment to move forward, Property Owner has hired a new Director of Construction to allow the Project to move forward with the original Director serving in a consulting capacity as his health improves; WHEREAS, as part of the proposed Second Amendment, a copy of which is attached hereto as Exhibit “A”, the Applicant also applied to extend the timeline for construction and effectiveness of the Site Approval (PL16-0357) entitlement for the Project for three years to be consistent with the Second Amendment timeline and requests that the City delay the Applicant’s obligation to pay City-imposed development impact fees under CMC Chapter 3.40; WHEREAS, Chino Municipal Code section 20.23.070 (“Development Agreement Ordinance”) and Sections 65864-65859.5 of the Government 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, the Site is subject to Measure U, approved by the voters of the City in 2001, which was adopted in order to allow for the development of senior housing, and which provides for the automatic re-zoning of the Site from Commercial General to Residential (RD-20) uses provided that the Developer enters into a development agreement with the City in order to ensure any impacts from the development are ameliorated; and WHEREAS, the City Attorney has prepared, and the Applicant has reviewed and concurred with, the terms and conditions of the Second Amendment, which Second Amendment will benefit the City by providing additional low-income housing facilities within the City, and ensure a desirable, attractive, and functional community environment for residents; and WHEREAS, on December 20, 2023, the Planning Commission held a duly noticed public hearing for the proposed recommendation of the Second Amendment and extension to Site Approval PL16-0357 in compliance with State 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, by a vote of 6-0, adopted Resolution No. PC2023-031 recommending to the City Council approval of the Second Amendment and Resolution No. PC2023-032 approving the extension of time for Site Approval PL16-0357, and WHEREAS, the extension of time for Site Approval PL16-0357 and Second Amendment are 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 regulations, is no more than five acres substantially surrounded by urban uses, and is devoid of habitat for biological resources. Further, the Project site has no value as habitat for endangered, rare, or threatened species, is served by public utilities and services, and there are no impacts to traffic noise, air quality or water quality, and therefore, no further environmental review is required under CEQA; and WHEREAS, pursuant to California Government Code Sections 65867 and 65090, the City on January 6, 2024, published a legal notice indicating the public hearing to be held by the City Council on January 16, 2024; WHEREAS, January 16, 2024, the City Council held a duly-noticed public hearing to consider the Second Amendment, and considered the recommendation of the Planning Commission and the evidence, testimony, and arguments submitted by City staff, the Developer, and all interested parties; and WHEREAS, City Council finds and determines that all actions required of City precedent to approval of the Second Amendment by the City Council have been duly and regularly taken and all legal prerequisites of the adoption of this Ordinance have occurred.
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHINO DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The above recitals are true and correct and are hereby incorporated into this Resolution as set forth herein.
Section 2. The City Council of the City hereby finds that the findings it made pursuant to Ordinance No. 2019-019 that the Development Agreement is consistent with the General Plan, the CASP and the zoning code, and complies with the requirements of the Development Agreement Law and the City Development Agreement Ordinance, remain true and correct. The City Council incorporates those findings in Ordinance No. 2019-019 herein by this reference. Additionally, the City Council finds that:
Pursuant to Measure U, the Site was automatically re-zoned to RD20 uses upon the approval of the Development Agreement by the City Council, to allow for the development of this senior housing Project on the Site. The Project Site was specifically intended to provide for the development of senior housing under Measure U and the proposed Project implements the voters’ intent in adopting Measure U in 2001.
The Development Agreement, with the Second Amendment, and the Project will implement the goals, objectives and policies of the City’s General Plan and the CASP, as modified by Measure U. For example, Objective LU-1.1, P4 of the General Plan states the City shall encourage the development of senior housing, which senior housing is to be provided by the Project. Additionally, the Project, also implements Objective LU 1.1 and Goal HE-2 of the General Plan, by providing additional affordable housing and senior housing to meet the needs of the community, including 2 additional low-income units provided under the First Amendment. The Development Agreement, as amended, 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 will ensure the Project is developed with an enhanced architectural design to provide for a desirable, attractive, and functional community environment for residents.
The Development Agreement and the Incentives granted for the Project for its provision of affordable housing, with the extension of the construction timeline and additional affordable units provided under the Second Amendment, will result in the development of the Site at the intensity and density allowed under the General Plan and Measure U, consistent with the restrictions and development standards contained in the CASP and under the zoning code.
The Project, with the extension of the construction timeline provided under the Second Amendment, will implement Goal ED-1 of the General Plan by providing for property taxes and other revenue above that anticipated for the existing land use (consisting of an undeveloped lot) and by generating construction employment and new permanent employment opportunities for City residents furthering the City’s economic development General Plan goals.
The Project, with the extension of the construction timeline provided under the Second Amendment, will implement the Goals of the General Plan Vision Statement (Chapter 2 of the General Plan) by providing an environmentally responsible design, and will include a number of green building measures in order to meet LEED (Indoor Environmental Quality Design and Construction Guidelines), including, without limitation, retention basins to retain storm-water runoff, use of native and/or drought-tolerant plants, electric vehicle spaces and charging stations, solar charging on the building roof, efficient plumbing fixtures, renewable plan materials, and bike parking facilities.
A periodic review will be conducted to monitor the implementation of the Development Agreement and to ensure that the provisions of the Development Agreement, as amended, are consistent with the General Plan, CASP and CMC.
Section 3. Based upon all oral and written reports and presentations made by City staff and members of the public, including any attachments and exhibits and findings made under Ordinance No. 2019-019, the City Council hereby finds that the Project, as amended pursuant to the Second Amendment, is categorically exempt pursuant to Section 15332 from the requirements of the CEQA, which exempts infill projects when the project is compatible with the General Plan land use designation and zoning regulations, is no more than five acres substantially surrounded by urban uses, and is devoid of habitat for biological resources. Further, the Project site has no value as habitat for endangered, rare, or threatened species, is served by public utilities and services, and there are no impacts to traffic noise, air quality or water quality, and therefore, no further environmental review is required under CEQA.
Section 4. The City Council of the City hereby approves the Second Amendment to Development Agreement between the City and Hillsborough Phase III, LLC, a copy of which is attached hereto as Exhibit “A”, with any non-substantive changes or typographical or scrivener errors corrected by the City Manager, and authorizes the Mayor to sign the Second Amendment after it has been signed by the Developer.
Section 5. Pursuant to Government Code Section 65868.5, the City Clerk of the City shall record a copy of said Amendment with the County Recorder within 10 days after the Mayor’s signing of the Second Amendment.
Section 6. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such determination shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Chino declare that they would have enacted this Ordinance and each section, subsection, sentence, clause or phrase hereof irrespective of any determination of invalidity.
Section 7. This Ordinance shall take effect 30 days after its adoption.
Section 8. The Mayor, City Manager, and City Clerk or their designees, are authorized and directed to take such actions and execute such documents and certifications as may be necessary to implement and affect execution, recordation and enforcement of this Ordinance and the Second Amendment.
Section 9. The City Clerk of the City of Chino shall certify to the passage and adoption of this Ordinance and shall cause the same to be published in a newspaper of general circulation, printed and published within the City of Chino in accordance with the provisions of the Government Code.
APPROVED AND ADOPTED THIS 6TH DAY OF FEBRUARY 2024.
By: EUNICE M. ULLOA, MAYOR
ATTEST:
NATALIE GONZAGA, CITY CLERK
State of California ) County of San Bernardino ) ss City of Chino ) I, Natalie Gonzaga, City Clerk of the City of Chino, do hereby certify the foregoing Ordinance was duly adopted by the Chino City Council at a regular meeting held on the 6th day of February 2024, by the following votes:
AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
Attachment:
Exhibit A: Second Amendment to Development Agreement
EXHIBIT A
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
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").
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”).
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”).
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.
The Development Agreement incorporated the conditions of approval granted under Site Approval PL16-0357 for the Project (“Site Approval”). Condition No. 1.1 provided that the Site Approval would expire on October 7, 2020 if building permits were not obtained by that date (“Site Approval Expiration Date”).
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.
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.
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.
For the past 18 months, Property Owner’s Director of Construction, Zaven Hanessian, was facing medical issues. Zaven Hanessian has been a foundational part of the Property Owner’s business and, without his guidance, this Project was unable to move forward.
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.
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:
Recitals. The Parties find that the above recitals are true and correct and incorporates them herein.
Effective Date. This Amendment shall be effective upon recordation in the Official Records of San Bernardino County (“Effective Date”).
Defined 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.
Representations 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 consent of any third party; and (iii) this Amendment is binding on Property Owner and the Hillsborough Property.
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.” 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.” Conflict. 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.
Successors 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.
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.
Counterparts; 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 executed 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, ManagerCITY OF CHINO, a Municipal By: Eunice M. Ulloa, MayorATTEST: Natalie Gonzaga, City ClerkAPPROVED AS TO FORM: ALESHIRE & WYNDER LLCCorporation 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
By: Eunice M. Ulloa, Mayor
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: ALESHIRE & WYNDER LLC
By: Fred Galante, City Attorney
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)
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)
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
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ORDINANCE NO. 2024-002Page 2 of 5
ORDINANCE NO. 2024-002
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.
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.
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.
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.