HomeMy WebLinkAbout60A - BACERRAS REQUESTREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 15, 2020
TITLE:
COUNCILMEMBER BACERRA'S REQUEST
FOR RECONSIDERATION OF ADOPTION
OF CITY COUNCIL RESOLUTION NO. 2020-
067 OVERRULING THE ORANGE COUNTY
AIRPORT LAND USE COMMISSION'S
DETERMINATION OF INCONSISTENCY
WITH THE AIRPORT ENVIRONS LAND USE
PLAN INCLUDED WITH ITEM NO. 75C
FROM THE AUGUST 18, 2020 CITY
COUNCIL AGENDA, AND SECOND
READING AND ADOPTION OF AN
ORDINANCE OF THE CITY COUNCIL
APPROVING AMENDMENT APPLICATION
NO. 2020-01 REZONING PROPERTY
LOCATED AT 2300, 2310, AND 2320 SOUTH
REDHILL AVENUE, AND APPROVE AN
INDEMNIFICATION AGREEMENT WITH
ARRIMUS CAPITAL FOR POTENTIAL
AIRPORT LIABILITY
/s/ Kristine
CITY MANAGER
CLERK OF COUNCIL USE ONLY:
❑ As Recommended
❑ As Amended
❑ Ordinance on 1 sl Reading
❑ Ordinance on 2od Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
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RECOMMENDED ACTION
It is recommended that the City Council consider taking action as follows:
1. Discuss Councilmember Bacerra's request for reconsideration of Resolution No. 2020-067
overruling the Orange County Airport Land Use Commission's Determination of
Inconsistency which was one of several approvals related to the proposed Warner Redhill
Mixed Use Development Project associated with Agenda Item No. 75C on the August 18,
2020 City Council Meeting Agenda and vote on the requested Motion to Reconsider. If the
Motion to Reconsider is not approved by the necessary majority vote, take action on item 4
below.
2. If a Motion for Reconsideration is adopted, consider adoption of Resolution No. 2020-067
Overruling the Orange County Airport Land Use Commission's Determination of
Inconsistency for the Warner Redhill Mixed Use Development Project with the Airport
Environs Land Use Plan for John Wayne Airport and take action on item 4 below.
60A-1
Motion to Reconsider Previous Land Use Approval
September 15, 2020
Page 2
3. If Resolution No. 2020-067 is not adopted by a 2/3 vote take no further action.
4. If the Motion for Reconsideration is not approved or Resolution No. 2020-067 is adopted by
the necessary -2/3 vote, conduct the second reading of and adopt Ordinance No. NS-XXXX
and approve the proposed Indemnification Agreement with Arrimus Capital.
4A. AN ORDINANCE OF THE CITY COUNCIL APPROVING AMENDMENT
APPLICATION NO. 2020-01 REZONING THE PROPERTY LOCATED AT 2300,
2310, AND 2320 SOUTH REDHILL AVENUE FROM LIGHT INDUSTRIAL (M-1) TO
SPECIFIC DEVELOPMENT NO. 96 (SD-96) AND ADOPTING SD-96 FOR SAID
PROPERTY
4B. Authorize the City Manager to execute an Indemnification Agreement with Arrimus
Capital (Applicant) subject to non -substantive changes approved by the City
Manager and City Attorney.
DISCUSSION
This matter has been placed on the agenda at Councilmember Bacerra's request for
reconsideration of the City Council's approval of Resolution No. 2020-067 pertaining to the City
Council making findings to overrule the Orange County Airport Land Use Commission's (ALUC)
determination of inconsistency between the proposed Warner Redhill Mixed -Use Project and the
Airport Environs Land Use Plan (AELUP) for John Wayne Airport. It is recommended that the City
Council entertain a motion and a second, to reconsider Resolution No. 2020-067 from the August
18, 2020 City Council meeting. If the motion is passed the City Council may reopen discussion of
Resolution No. 2020-67 which was a part of former Item No. 75C on August 18, 2020, and which
is numbered as Item No. 60A on this agenda.
The City Council voted to approve Item No.75C on August 18, 2020 by a vote of 5-2. Item No. 75C
included several different actions and approvals. See Item No. 75C in its entirely at the link below:
https://santaana.granicus.com/GeneratedAgendaViewer.php?view id=2&clip id=2964.
Councilmember Bacerra voted to approve all items associated with agenda item No. 75C, including
Resolution No. 2020-067 and has, subsequently asked at the immediate following meeting for
reconsideration of the approval of said Resolution.
The City Council has the authority, pursuant to rules of parliamentary procedure, to reconsider,
renew, rescind or amend previous actions approved by the City Council. This is often referred to
as reconsideration of an agenda item. A request to reconsider must be made at the same meeting
at which the action was taken or the very next meeting. The request is then presented as a motion
to reconsider which allows the City Council to revisit an item previously discussed and voted on. If
the motion to reconsider passes, Resolution No. 2020-067 appears back before the City Council,
60A-2
Motion to Reconsider Previous Land Use Approval
September 15, 2020
Page 3
as if it were on the floor for the first time, and a new motion to approve or deny said Resolution will
be in order.
If the motion to reconsider is approved, the City Council may then discuss, deliberate, and vote on
Resolution 2020-067 as it is now presented as new business Item No. 60A of this agenda. If
Resolution No. 2020-067 is not approved, the City Council will not need to take any further action.
If Resolution No. 2020-067 is approved, the City Council is asked to take two additional actions.
The first is to conduct the second reading of and adopt Ordinance No. NS-XXXX and the second
is to approve the proposed Indemnification Agreement with Arrimus Capital. The City Council
conducted the first reading of the ordinance on August 18, 2020. The proposed second reading
was on the agenda at the City Council's September 1, 2020 meeting, but was not considered
because of the request for reconsideration.
At the August 18, 2020 meeting Councilmember Bacerra asked about the impacts of the City
overruling the Airport Land Use Commission's finding of inconsistency between the proposed
project and the John Wayne Airport AELUP. At the time, the City Council was told that as a
consequence of overruling Airport Land Use Commission the Airport would be absolved of any
liability resulting from an airport or airline accident on the project property. The City Council was
informed that the developer, Arrimus Capital, had provided the City with an avigation easement
that fully indemnified and absolved the City from liability. The developer had not yet provided the
indemnification, but was required, as a condition of approval to do so in connection with the
required avigation easement. At this time, the developer has agreed to enter into a stand-alone
indemnification agreement to be recorded against the project property rather than include
indemnification language in the easement. The City Council is asked to approve the agreement,
which has been executed by the Applicant and attached hereto as Exhibit 3.
FISCAL IMPACT
There is no fiscal impact associated with approval of this action.
Submitted by: Minh Thai, Executive Director/Planning and Building Agency
Exhibits: 1. Resolution No. 2020-067
2. Ordinance NS-XXXX
3. Indemnification Agreement
4. August 18, 2020 City Council meeting Staff Report Item No. 75C can be view it
its entirety at the link below:
https://santaana.qranicus.com/GeneratedAgendaViewer.php?view id=2&clip id=296
4
60A-3
EXHIBIT 1
RESOLUTION NO.2020-067
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA OVERRULING THE ORANGE COUNTY
AIRPORT LAND USE COMMISSION'S DETERMINATION
OF INCONSISTENCY FOR A MIXED -USE DEVELOPMENT
PROJECT LOCATED 2300, 2310 AND 2320 SOUTH
REDHILL WITH THE AIRPORT ENVIRONS LAND USE
PLAN FOR JOHN WAYNE AIRPORT, INCLUDING
SUPPORTIVE FINDINGS
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
WHEREAS, Article 5 of Chapter 3 of Division 1 of Title 7 (commencing with
Section 65300) of the Government Code requires the City to prepare and adopt a
comprehensive, long-term general plan for the physical development of the City; and
WHEREAS, on February 2, 1998, the City of Santa Ana adopted the Land Use
Element of the General Plan, which has since been amended from time to time; and
WHEREAS, Jeremy Ogulnick, representing Arrimus Capital ("Applicant"), seeks
to develop a Mixed -Use Commercial and Residential Project ("proposed Project"), on a
14.69-acre site at 2300, 2310, and 2320 South Redhill Avenue in Santa Ana, California
("Project Site"); and
WHEREAS, the Project as currently proposed entails, among other things, (1)
demolition of the existing three (3) structures on the Project Site; (2) redevelopment of
the Project Site with a commercial and residential mixed -use development consisting of
up to 80,000 square feet leasable commercial area, 1,100 residential units, 2,600 onsite
parking spaces, and onsite landscaping and amenities; (3) approval of General Plan
Amendment (GPA) No. 2020-02, which would change the Project Site's existing land
use designation of Professional & Administration Office (PAO) to District Center (DC);
and (4) approval of Amendment Application (AA) No. 2020-01, which would change the
zoning of the Project Site from Light Industrial (M-1) to Specific Development No. 96
(SD-96) designation; and
WHEREAS, the requested General Plan Amendment would change the General
Plan land use designation of the property from Professional and Administrative Office
(PAO) to District Center (DC) and to update text portions of the City's Land Use Element
to reflect this change in order to allow for development of the mixed -use commercial and
residential Project; and
Resolution No. 2020-067
60A-4 Page 1 of 13
WHEREAS, California Public Utilities Code (PUC) Section 21676(b) requires the
City of Santa Ana to refer projects requiring a general plan amendment or a zone
change to the Orange County Airport Land Use Commission (ALUC) for consistency
with the 2008 John Wayne Airport (JWA) Environs Land Use Plan (AELUP); and
WHEREAS, the ALUC is charged with the adoption of an AELUP, establishing
guidelines for compatible development in the vicinity of an airport within the jurisdiction
of the County of Orange. PUC Section 21670(a) sets forth the fundamental purpose of
the AELUP as: (1) "... to promote the overall goals and objectives of the California
airport noise standards adopted pursuant to Section 21669 and to prevent the creation
of new noise and safety problems" and (2) "... to protect public health, safety, and
welfare by ensuring the orderly expansion of airports and the adoption of land use
measures that minimize the public's exposure to excessive noise and safety hazards
within areas around public airports to the extent that these areas are not already
devoted to incompatible uses;" and
WHEREAS, on May 21, 2020, the ALUC found the proposed project to be
inconsistent with the 2008 JWA AELUP by a 6-0 vote. ALUC's findings were made
pursuant to AELUP Sections 1.2 and 2.1.4, and PUC Section 216749(a). These
sections empower the ALUC "to assist local agencies in ensuring compatible land uses
in the vicinity of existing airports to the extent that the land in the vicinity of those
airports is not already devoted to incompatible uses," and "to coordinate planning at the
state, regional and local levels so as to provide for the orderly development of air
transportation, while at the same time protecting the public health, safety and welfare;"
and
WHEREAS, on May 26, 2020, the Planning Commission held a duly noticed
public hearing on the entitlements for the project. Prior to the Planning Commission
taking action on the item, staff provided a verbal update informing the Commission
regarding ALUC's determination made on May 21, 2020, after the publication of the staff
report to the Commission, that the project was inconsistent with the Airport Environs
Land Use Plans [AELUP]. Following staffs presentation, and holding the public hearing,
the Planning Commission voted 5:1:1 (Phan abstained and Contreras -Leo was absent)
to recommend that the City Council approve the required entitlements and
environmental documentation for the proposed Project.
WHEREAS, pursuant to PUC Section 21676(b), the City may, after a public
hearing, propose to overrule the commission by a two-thirds vote of its governing body if
it makes specific findings that the proposed action is consistent with the purposes of
Article 3.5 Airport Land Use Commission of the PUC. At least 45 days prior to the
decision to overrule the ALUC, the local agency governing body shall provide the ALUC
and the State Division of Aeronautics a copy of the proposed decision and findings. The
commission and the Division of Aeronautics may provide comments to the local agency
governing body within 30 days of receiving the proposed decision and findings. If the
ALUC and State Division of Aeronautics comments are not available within this time
limit, the local agency governing body may act without them. Should comments be
Resolution No. 2020-067
Page 2 of 13 60A-5
received, the City Council must include the comments from the ALUC in the public
record of any final decision to overrule the ALUC. This decision shall be determined at a
public hearing to make the specific findings that the proposed overruling is consistent
with the purposes stated in PUC Section 21670.
WHEREAS, on June 16, 2020, the City Council of the City of Santa Ana adopted
a resolution (Resolution No. 2020-051) authorizing the Planning Division to initiate the
preparation and drafting of findings and determination overruling the Orange County
ALUC's determination of inconsistency associated with the proposed Mixed -Use
Development and to provide notice in accordance with PUC Section 21676(b) to the
ALUC and the State Division of Aeronautics; and
WHEREAS, on June 30, 2020, the Planning Division of the City of Santa Ana
provided a Notice of Intent to overrule the Orange County ALUC's determination that
the Mixed -Use Development project is inconsistent with the AELUP of JWA and findings
to the ALUC and the State Division of Aeronautics; and
WHEREAS, all correspondences received by the ALUC and State Division of
Aeronautics have been included in the public record; and
WHEREAS, on August 6, 2020, the City gave public notice of a City Council
public hearing for consideration of overruling ALUC's determination on the proposed
Mixed -Use Development project by advertising in the Orange County Register, a
newspaper of general circulation, by mailing to owners of property and residents within
500 feet of the Project, and posting a notice on site; and
WHEREAS, August 18, 2020, the City Council conducted a duly noticed public
hearing to consider the Environmental Impact Report (EIR) No. 2020-01, General Plan
Amendment No. 2020-02, Amendment Application No. 2020-01, and the ALUC
overruling determination of inconsistency action and at which hearing members of the
public were afforded an opportunity to comment upon such actions.
Section 2. The City Council of the City of Santa Ana made the following
findings:
A. The City of Santa Ana is required to provide findings supporting the overrule
of the Orange County ALUC determination as required in the California PUC
Section 21676(b). Based on the following Findings of Fact and the
associated substantial evidence in the public record, the proposed action by
the City on the Mixed -Use Development Project at 2300, 2310 and 2320
Red Hill Avenue and related zoning change and General Plan Amendment
are consistent with the purposes of the State Aeronautics Act as stated in
PUC Section 21670.
B. The proposed Project provides for the orderly development of JWA, and its
surrounding area and promotes the overall goals and objectives of the State
noise standards by avoiding new noise and safety problems, and protecting
Resolution No. 2020-067
60A-6 Page 3 of 13
the public health, safety and welfare through the adoption of land use
measures that minimize the public's exposure to excessive noise and safety
hazards to the extent that this area is not already devoted to incompatible
uses. This Project would not add any new residential or commercial noise
impacts to the JWA 65 dBA Community Noise Equivalent Level (CNEL)
noise area.
C. It is in the public interest to: provide for the orderly development of each
public use airport in this state and the area surrounding these airports so as
to promote the overall goals and objectives of the California airport noise
standards adopted pursuant to PUC Section 21669 and to prevent the
creation of new noise and safety problems.
D. To provide for the orderly development of JWA and the area surrounding the
airport, the ALUC adopted the 2008 AELUP on April 17, 2008. The AELUP
guides development proposals to provide for orderly development of the
airport and the area surrounding the airport through implementation of the
standards in Section 2.1 (aircraft noise, safety compatibility zones, building
height restrictions).
E. The ALUC is required to use the California Airport Land Use Planning
Handbook (Handbook) that was updated by the Califomia Department of
Transportation, Division of Aeronautics (Caltrans) in 2011. The AELUP has
not been updated to incorporate the Handbook nor has it updated
information about the operation and environmental effects of JWA as
reflected in its most recent Final Environmental Impact Report (EIR) certified
by the Orange County Board of Supervisors on June 25, 2019 for the
General Aviation Improvement Program (GAIP).
F. On May 21, 2020, the City of Santa Ana presented the Mixed -Use
development to the ALUC for a determination of consistency with the JWA
AELUP. The ALUC staff report dated May 21, 2020, finds that with regard to
AELUP issues of aircraft noise, building heights, safety zones and heliports,
that the proposed project, zone change, and General Plan Amendment are
each consistent. Despite consistency with each stated criteria of the AELUP,
the ALUC staff recommended, "[t]hat the Commission find the proposed
...Mixed Use Project inconsistent with the AELUP for JWA per AELUP
Sections 1.2 and 2.1.4 and PUC Section 21674.
G. The Project is consistent with the AELUP of JWA and with the purposes of
the State Aeronautics Act based on the following Findings of Fact and
substantial evidence:
a. Lack of evidence of inconsistency by the ALUC.
b. There was no evidence presented by or to the ALUC at its hearing on
May 21, 2020, to support finding of inconsistency, nor was there a
request to provide supplemental information. The ALUC staff made a
Resolution No. 2020-067
Page 4 of 13 60A-7
presentation at the Commission hearing based on the staff report. The
only addition made by the ALUC staff to the staff report published with
the meeting agenda was their acknowledgment of the City's letter on May
20, 2020 stating that the Final EIR for the Project would reinstate a
mitigation measure requiring "Notice of Airport in Vicinity," to be included
in all lease/rental agreements and post outdoor signage informing the
public of the presence of operating aircraft, which demonstrates further
compliance with the AELUP and to minimize potential future noise
complaints.
c. Noise. The residential and commercial land uses under the proposed
Project are consistent with the aircraft noise standards of the AELUP.
i. Project is located outside of the JWA 60 to 65 dBA CNEL aircraft
noise contours. Aircraft noise analysis was completed in the
Project's EIR and presented at the ALUC hearing. The JWA GAIP
EIR also contains noise analysis demonstrating that the Project is
outside of the 60 dBA CNEL noise contour. This noise analysis is
based on one year's worth of aircraft operations in all runway
operating configurations with for both existing aircraft fleet mixes
and future fleet forecasts. This analysis includes the time of day of
all operations and includes noise penalties for evening (7 pm to 10
pm) and night (10 pm to 7 am) aircraft operations of five and ten
decibels per operation. Residential land uses are normally
consistent in areas impacted by aircraft noise up to 60 dBA CNEL
and commercial land uses up to 65 dBA CNEL as shown in the
AELUP Table 1. These are the same noise standards used by the
FAA and the State of California to identify compatible land uses
near airports.
ii. The project is located outside of the JWA single -event aircraft
noise contours. The detailed aircraft noise analysis completed as
part of the JWA GAIP EIR included analysis of single event aircraft
noise. This analysis included single event noise contours for the
noisiest aircraft making regular use of JWA. The Project
developer's consultant provided analysis and information at the
ALUC hearing showing the Project site is located outside of the
JWA 85 dB single event noise contours for all aircraft making
regular use of the Airport.
iii. The project includes mitigation measure notifying future residents.
The Final EIR for the Project revised on May 22, 2020 includes a
mitigation measure requiring "Notice of Airport in Vicinity," to be
included in all lease/rental agreements and post outdoor signage
informing the public of the presence of operating aircraft, which
demonstrates further compliance with the AELUP and to minimize
potential future noise complaints.
Resolution No. 2020-067
60A-8 Page 5 of 13
d. Safety. The residential and commercial land uses under the proposed
project are consistent with the safety standards of the AELUP. Project is
not in any of the AELUP safety zones. The project is located more than a
mile from the outer edge of AELUP Zone 6, Traffic Pattern Zone as
depicted in Appendix D. Further, AELUP Appendix D states the "Basic
Compatibility Qualities" of Zone 6 as "Allow residential uses" and "Allow
most nonresidential uses."
Project is not in the JWA runway protection zones (RPZ). The
Project is located nearly two miles from the outer edge of the
nearest JWA RPZ.
ii. The FAA's Determinations of No Hazard to Air Navigation for the
Mixed -Use development structures are the only source of
authoritative, aviation safety findings regarding the project. The
FAA conducted an aeronautical study (49 U.S.C. §44718 and 14
CFR Part 77) and issued its Determinations on March 5, 2020 that
structures associated with the project "do not exceed standards
and would not be a hazard to air navigation" and that "[b]ased on
this evaluation, marking and lighting are not necessary for aviation
safety." The FAA's Determinations establish that the Project would
be neither an obstruction nor a hazard to air navigation.
iii. In this case it is important to first establish what entity has
authority over the use of airspace over the project site. "The
United States Government has exclusive sovereignty of airspace
of the United States" (49 U.S.C. § 40103(a)(1)).
iv. In order to use this airspace, the FAA Administrator is responsible
for: (1) Plans and policy for the safe use of the navigable airspace
(49 U.S.C. § 40103(b)(1); and (2) "[R]egulations on the flight of
aircraft (including regulations on safe altitudes) for navigating,
protecting and identifying aircraft; protecting individuals and
property on the ground; using the navigable airspace efficiently;
and preventing collision between aircraft, between aircraft and
land or water vehicle, and between aircraft and airborne objects'
(49 U.S.C. § 40103(b)(2)).
V. The FAA's aeronautical studies for the project structures are the
definitive standard for assessing compliance with federal aviation
safety laws and regulations (49 U.S.C. § 77.1(c)). This federal
authority is recognized in State law (Cal. PUC §21240).
vi. The City of Santa Ana has the local police powers to control land
use on the site (Cal. Const., art. XI 11, § 7). This constitutional
authority is acknowledged in State law (Cal. PUC §21670 and
§21676) and the ALUC process (AELUP §4.11) allowing for
overrule of an ALUC finding of inconsistency.
Resolution No. 2020-067
Page 6 of 13 60A-9
vii. The other entities that have processed or commented on this
project have aviation safety duties and responsibilities related to
this matter. Each of these entities relies on or ultimately defers to
the FAA's authoritative aviation safety role in airspace
determinations.
viii. The AELUP for JWA, Section 2.1.3 Building Height Restrictions
states, "In adopting criteria for building height restrictions in the
vicinities of airports, the Commission considered only one
standard and that was Federal Aviation Regulations Part 77 ([14
CFR] Part 77) entitled, Objects Affecting Navigable Airspace.
"These regulations are the only definitive standard available
[emphasis added] and the standard most generally used."
ix. Section 2.1.3 also recognizes FAA aeronautical studies beyond 14
CFR Part 77 surfaces as the standard for review, "In addition to
the 'imaginary surfaces,' the Commission will use all of the FAR
Part 77.23 standards along with the results of FAA aeronautical
studies, [emphasis added] or other studies deemed necessary by
the Commission, in order to determine if a structure is an
'obstruction."' This section goes on to state: The Commission
considers and recognizes the FAA as the single "Authority" for
analyzing project impact on airport or aeronautical operations, or
navigational -aid siting, including interference with navigational -
aids or published flight paths and procedures. The Commission
also considers the FAA as the "Authority" for reporting the results
of such studies and project analyses. The Commission will not
consider the findings of reports or studies conducted by parties
other than the FAA unless the FAA certifies and adopts such
findings as true and correct.
X. Section 2.1.3 adds reference to FAA Advisory Circular 150/5190-
4A, A Model Zoning Ordinance to Limit Height of Objects Around
Airports for Commission Review. This FAA Advisory Circular
provides specific guidance for establishing zoning regulations
along with specific guidance on a "variance" process for potential
obstructions. At Section 3.b., 'The Federal Aviation Administration
(FAA) conducts aeronautical studies on obstructions which
examine their effect on such factors as: aircraft operational
capabilities; electronic and procedural requirements; and, airport
hazard standards. if an aeronautical study shows that an
obstruction, when evaluated against these factors, has no
substantial adverse effect upon the safe and efficient use of
navigable airspace, then the obstruction is considered not to
be a hazard to air navigation [emphasis added]."
Resolution No. 2020-067
60A-1 0 Page 7 of 13
A. CalTrans Division of Aeronautics — Caltrans publishes the
California Airport Land Use Planning Handbook ("Handbook") in
accordance with State Law with the purpose to, " provide
information to ALUCs, their staffs, airport proprietors, cities,
counties, consultants, and the public; to identify the requirements
and procedures for preparing effective compatibility planning
documents; and define exemptions where applicable (Caltrans,
2011)." The Handbook provides specific guidance for assessing
potential airspace obstructions in Section 4.5 Airspace Protection.
xii. JWA — The FAA requires airport sponsors like Orange County to
accept specific grant assurances when they accept federal
funding. Hazard Removal and Mitigation and Compatible Land
Use are two of these assurances (49 U.S.C. § 47107(a)(9) and
(10)). For hazard removal, the Airport relies on the FAA's
aeronautical study to meet its requirement. For compatible land
use, the Airport relies on coordination with the surrounding cities
and the ALUC. The following are the specific assurances:
xiii. Hazard Removal and Mitigation. It will take appropriate action to
assure that such terminal airspace as is required to protect
instrument and visual operations to the airport (including
established minimum flight altitudes) will be adequately cleared
and protected by removing, lowering, relocating, marking, or
lighting or otherwise mitigating existing airport hazards and by
preventing the establishment or creation of future airport hazards.
xiv. Compatible Land Use. It will take appropriate action, to the extent
reasonable, including the adoption of zoning laws, to restrict the
use of land adjacent to or in the immediate vicinity of the airport to
activities and purposes compatible with normal airport operations,
including landing and takeoff of aircraft. In addition, if the project is
for noise compatibility program implementation, it will not cause or
permit any change in land use, within its jurisdiction, that will
reduce its compatibility, with respect to the airport, of the noise
compatibility program measures upon which Federal funds have
been expended.
e. Height. The residential and commercial land uses under the proposed
project are consistent with the height standards of the AELUP.
i. The proposed buildings associated with the Project would not
exceed the sloping, three-dimensional 100:1 (one percent sloping
surface from the nearest runway over 3,200 feet in actual length)
FAA notification surface to require the Filing of FAA Form 7460-1.
This fact is stated in the ALUC staff report and was repeated at
the ALUC hearing on the Project. Despite this fact, the Project
Resolution No. 2020-067
Page 8 of 13 60A-11
proponent filed with the FAA and received a Determination of No
Hazard to Air Navigation on March 5, 2020.
ii. The Project does not exceed the sloping, three-dimensional 50:1
FAA precision instrument Approach Surface to JWA Runway 20R.
This fact is stated in the ALUC staff report and was repeated at
the ALUC hearing on the Project. Despite this fact, the Project
proponent filed with the FAA and received a Determination of No
Hazard to Air Navigation on March 5, 2020.
f. Overflight. "Close to the JWA approach centerline" as identified by the
ALUC is neither an FAA nor an AELUP standard.
The FAA is the only authoritative source of aviation safety data
and the FAA does not have a "close to the JWA approach
centerline" standard. The FAA's Aeronautical Study of the Project
and Determinations of No Hazard to Air Navigation issued on
March 5, 2020 are the only authoritative source of airspace impact
information as stated in the AELUP.
The AELUP clearly identifies its airport land use planning
standards around aircraft noise, safety, and height. Objective
measures of these standards are clearly identified in AELUP
Section 2.1. The Project is consistent with each of these objective
standards.
iii. Two-dimensional flight tracks and a list of unassociated aircraft do
nothing to inform the impact of overflights. The ALUC provided
one day of arrival flight tracks, one day of departure flight tracks
and lists of aircraft by time of day and altitude that were purported
to have produced these flight tracks.
iv. The Project proponent prepared three-dimensional models of the
ALUC-provided flight track information to depict actual overflight
proximity to a scaled model of the Project. These three-
dimensional models show that some residents and users of the
property would likely be able to see aircraft flying past the property
from certain locations. Aircraft noise information from the AELUP,
the JWA GAIP EIR and from the Project EIR demonstrate that the
noise impact would be less than 60 dBA CNEL and less than
single event noise standards identified in the JWA GAIP EIR.
V. Aircraft noise contours used to objectively measure noise impact
already assume flight tracks and actual operating conditions for a
full year including future operations. One day of arrival flight
tracks and one day of departure flight tracks are simple anecdotes
and not substantive evidence.
Resolution No. 2020-067
60A-1 2 Page 9 of 13
vi. The project is located outside of the JWA single event noise
exposure areas documented in the JWA General Aviation
Improvement Program EIR certified on June 25, 2019. The
project developer presented this information to the ALUC
Commission at its hearing on May 21, 2020.
vii. ALUC Commissioners Monin and Murphy asked for but did not
receive evidence of general aviation aircraft using Runway 2R/20L
would "be turning right in front of the site." In fact, the GA aircraft
pattern and voluntary noise abatement procedures for Runway
2R/20L operate within one to two miles from the end of the runway
north of the airport and on a 15-degree offset from the extended
runway centerline to avoid airspace conflicts with aircraft arriving
Runway 20R. This location places GA aircraft south of Barranca
Parkway and aligned with the Tustin Legacy property southeast of
the Project site. These regular GA aircraft flight tracks are
substantiated in the presentation by JWA staff on April 6, 2019 at
a Town Hall meeting about the GAIP.
g. Heliports. Heliports are not a part of the Project.
h. Zone Change and General Plan Amendment. The proposed zone
change, and General Plan Amendment are consistent with the objective
AELUP aircraft noise, safety and height standards and are therefore
consistent with the larger planning role of the ALUC. "Close to the JWA
approach centerline" is not an FAA or an ALUC standard.
ALUC offers no substantiation that overflights of new residents
would be disturbed or annoyed. On the contrary, the ALUC
demonstrates that the Project is located outside of the 60 dBA
CNEL noise contour. As such, the Project would not add any new
residential or commercial noise impacts to the JWA 65 dBA
Community Noise Equivalent Level (CNEL) noise area.
ii. Flight tracks for one day of arrivals and one day of departures are
not unique and are fully accounted for in the one year of
overflights used to measure CNEL noise impacts associated with
JWA.
Flight tracks for one day of arrivals and one day of departures are
not unique and are fully accounted for in the single -event noise
contours produced for the JWA GAIP EIR. The Project is located
outside of these single -event noise contours.
iv. The JWA comments on the Project conflict with its own noise
analysis contained in the GAIP EIR. The ALUC staff report states,
'Because of the project location within the primary approach
corridor and its proximity to JWA (2.25 miles), JWA stated it is not
Resolution No. 2020-067
Page 10 of 13
60A-13
supportive of the proposed residential portion of the project." The
objective analysis and conclusions of the JWA GAIP EIR find that
the objective aircraft noise analysis demonstrate that the Project
would be located outside of the 60 dBA CNEL noise contour and
would have no impact on operations at JWA due to height.
V. The ALUC staff report states that, "per Section 1.2 of the AELUP
for JWA, the purpose of the AELUP is to safeguard the general
welfare of the inhabitants within the vicinity of the airport and to
ensure the continued operations of the airport." The method by
which the ALUC achieves this purpose is through the application
of the objective standards contained in Section 2.1 of the AELUP.
As demonstrated in the ALUC staff report and, in these Findings,
the Project is consistent with each of the standards. As a result,
the ALUC has met their duty under Section 1.2 by ensuring that
the Project meets these standards.
vi. The ALUC staff report states that "Additionally, Section 2.1.4 of
the AELUP for JWA and PUC Section 21674 charge the
Commission to coordinate at the local level to ensure compatible
land use planning." The method by which the ALUC achieves this
charge is through the application of the objective standards
contained in Section 2.1 of the AELUP. As demonstrated in the
ALUC staff report and, in these Findings, the Project is consistent
with each of the standards. As a result, the ALUC has met their
duty under Section 2.1.4 and PUC Section 21674 by ensuring that
the Project meets these standards.
Section 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT: The City
Council has reviewed and certified Environmental Impact Report No. 2020-01; adopted
the Mitigation Monitoring and Reporting Program (MMRP); and adopted the Statement
of Overriding Consideration for the proposed Project.
Section 4. INDEMNIFICATION. The Applicant shall indemnify, protect,
defend and hold the City and/or any of its officials, officers, employees, agents,
departments, agencies, authorized volunteers, and instrumentalities thereof, harmless
from any and all claims, demands, lawsuits, writs of mandamus, and other and
proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in
nature), and alternative dispute resolution procedures (including, but not limited to
arbitrations, mediations, and such other procedures), judgments, orders, and decisions
(collectively "Actions"), brought against the City and/or any of its officials, officers,
employees, agents, departments, agencies, and instrumentalities thereof, that
challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any
permit or approval issued by the City and/or any of its officials, officers, employees,
agents, departments, agencies, and instrumentalities thereof (including actions
approved by the voters of the City) for or concerning the project, whether such Actions
are brought under the Ralph M. Brown Act, California Environmental Quality Act, the
Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections
Resolution No. 2020-067
60A-1 4 Page 11 of 13
1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance,
charter, rule, regulation, or any decision of a court of competent jurisdiction. It is
expressly agreed that the City shall have the right to approve, which approval will not
be unreasonably withheld, the legal counsel providing the City's defense, and that
Applicant shall reimburse the City for any costs and expenses directly and necessarily
incurred by the City in the course of the defense. City shall promptly notify the
Applicant of any Action brought and City shall cooperate with Applicant in the defense
of the Action.
Section 5. CITY COUNCIL ACTION: Based on the above evidence and
Findings made, and the remainder of the record in this case, the City Council of the
City of Santa Ana hereby resolves to overrule the Orange County ALUC's
determination that the Mixed -Use Development Project is inconsistent with the Orange
County AELUP.
Section 6. EXECUTION OF RESOLUTION. The Mayor shall sign this
Resolution and the Clerk of the Council shall attest and certify to the adoption thereof.
ADOPTED this "18t' day of August, 2020.
APPROVED AS TO FORM:
Sonia R. Carvalho,
City Attorney
By: D4 (- L.
Lisa E. Storck
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
Bacerra, Mendoza, Penaloza, Sarmiento,
Solorio (5)
Pulido, Villegas (2)
None (0)
NOT PRESENT: Councilmembers None (0)
Resolution No. 2020-067
Page 12 of 13 60A-1 5
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached
Resolution No. 2020-067 to be the original resolution adopted by the City Council of the
City of Santa Ana on August 18, 2020.
Date: ^ - o7 '2DZ
Daisy Gomez
Clerk of the Cou cil
City of Santa Ana
Resolution No. 2020-067
Page 13 of 13
60A-17
EXHIBIT 2
LS 8.18.20
ORDINANCE NO. NS-XXXX
AN ORDINANCE OF THE CITY COUNCIL APPROVING
AMENDMENT APPLICATION NO. 2020-01 REZONING
THE PROPERTY LOCATED AT 2300, 2310, AND 2320
SOUTH REDHILL AVENUE FROM LIGHT INDUSTRIAL (M-
1) TO SPECIFIC DEVELOPMENT NO. 96 (SD-96) AND
ADOPTING SD-96 FOR SAID PROPERTY
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
WHEREAS, Chapter 41, Article 1, Division 1, Section 41-1 of the Santa Ana
Municipal Code establishes the necessity of segregating the location of residences,
businesses, trades and industries; regulating the use of buildings, structures, and land
regulation; the location, height, bulk and size of buildings and structures, the size of
yards and open space; the City is divided into land -use districts of such number, shape
and area as may be considered best suited to carry out these regulations and provide
for their enforcement; and
WHEREAS, the regulations are considered necessary in order to: encourage
the most appropriate use of land, conserve and stabilize property value, provide
adequate open spaces for light and air and to prevent and fight fires, prevent undue
concentration of population, lessen congestion on streets and highways, and promote
the health, safety and general welfare of the people, all as part of the general plan of
the City; and
WHEREAS, the City of Santa Ana has adopted a zoning map which has since
been amended from time to time; and
WHEREAS, Jeremy Ogulnick, representing Arrimus Capital ("Applicant"), seeks
to develop a Mixed -Use Commercial and Residential Project ('proposed Project'), on a
14.69-acre site at 2300, 2310, and 2320 South Redhill Avenue in Santa Ana, California
("Project Site"); and
WHEREAS, during the City's entitlement and environmental review process, and
in response to comments and concerns raised by the City and public, the Applicant has
proposed the subject mixed -use Project; and
WHEREAS, the Project as currently proposed entails, among other things, (1)
demolition of the existing three (3) structures on the Project Site; (2) redevelopment of
the Project Site with a commercial and residential mixed -use development consisting of
up to 80,000 square feet leasable commercial area, 1,100 residential units, 2,600 onsite
parking spaces, and onsite landscaping and amenities; (3) approval of General Plan
Ordinance No. NS-XXXX
Page 1
L� •
Amendment (GPA) No. 2020-02, which would change the Project Site's existing land
use designation of Professional & Administration Office (PAO) to District Center (DC);
and (4) approval of Amendment Application (AA) No. 2020-01, which would change the
zoning of the Project Site from Light Industrial (M-1) to Specific Development No. 96
(SD-96) designation; and
WHEREAS, Applicant agrees to execute a Mutual Declaration of
Acknowledgement and Acceptance of Approval Conditions, signed by the developer
and property owner and recorded against the development property, attached hereto
and incorporated herein by reference as Exhibit C; and
WHEREAS, the requested Amendment Application would change the zoning
designation of the property from Light Industrial (M-1) to Specific Development No. 96
(SD-96) and adoption of Specific Development No. 96 to reflect this change in order to
facilitate the construction of the proposed Project; and
WHEREAS, Environmental Impact Report No. 2020-01 (State
Clearinghouse/SCH No. 2019080011) for the proposed Project was circulated
between January 3, 2020 to February 18, 2020; and
WHEREAS, the Environmental Impact Report analyzed the impacts related to
the proposed amendment to the zoning map and adoption of Specific Development
No. 96; and
WHEREAS, during the public comment period, a Planning Commission work-
study session was held on February 10, 2020 where staff presented proposed Project
and described the Draft EIR; and
WHEREAS, on May 11, 2020 and May 26, 2020, the Planning Commission
conducted a duly noticed public hearing to consider the EIR and the GPA, and AA
applications described above. After hearing all relevant testimony from staff, the public
and the City's consultant team, the Planning Commission voted to recommend that the
City Council certify the EIR and adopt the findings, the statement of overriding
considerations and the mitigation monitoring and reporting program and approve the
Project; and
WHEREAS, on August 6, 2020, the City gave public notice of a City Council
public hearing for consideration of Environmental Impact Report No. 2020-01 (State
Clearinghouse No. 2019080011) by advertising in the Orange County Register, a
newspaper of general circulation, and by mailing to owners of property and residents
within 500 feet of the Project; and
WHEREAS, on August 18, 2020, the City Council conducted a duly noticed
public hearing to consider the EIR, General Plan Amendment No. 2020-02, and
Amendment Application No. 2020-01 and at which hearing members of the public were
afforded an opportunity to comment upon Environmental Impact Report No. 2020-01.
After hearing all relevant testimony from staff, the public and the City's consultant team,
Ordinance No. NS-XXXX
Page 2
60A-19
the City Council voted to certify the EIR, adopt the findings, the statement of overriding
considerations and the mitigation monitoring and reporting program and approve the
Project; and
WHEREAS, the "EIR" consists of the Final EIR and all attachments and
appendices, as well as the Draft EIR and its attachments and appendices (as modified
by the Final EIR).
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA
DOES RESOLVE, DETERMINE, FIND, AND ORDER AS FOLLOWS:
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT: The City Council has
reviewed and certified Environmental Impact Report No. 2020-01; adopted the
Mitigation Monitoring and Reporting Program (MMRP); and adopted the Statement of
Overriding Consideration for the proposed Project, including this Amendment
Application No. 2020-01.
SECTION 3. AMENDMENT APPLICATION: The Amendment Application consists of
amendments to the zoning map (SDM IRS-9) and adoption of Specific Development
No. 96, as shown in Exhibit A and Exhibit B respectively, attached hereto and
incorporated herein by reference.
SECTION 4. LOCATION OF DOCUMENTS: The Amendment Application,
Environmental Impact Report and all supporting documents are online, on file and
available for public review at Santa Ana City Hall, 20 Civic Center Plaza, Santa Ana,
California 92702.
SECTION 5. GENERAL PLAN CONSISTENCY: The City Council hereby finds that
the proposed Amendment Application is compatible with the objectives, policies, and
general plan land use programs as amended by General Plan Amendment No. 2020-
02 in that:
A. The proposed Amendment Application will not adversely affect the public
health, safety, and welfare in that the Amendment Application will not result in
incompatible land uses on adjacent properties, inconsistencies with any
General Plan goals or policies, or adverse impacts to the environment.
B. The amendment application to change the zoning designation from Light
Industrial (M-1) to Specific Development No. 96 (SD-96) is consistent with
Santa Ana Municipal Code section 41-593.1 for the following reasons:
(1) Protecting and enhancing the value of properties by encouraging the
use of good design principles and concepts, as related to the division of
property, site planning and individual improvements with full recognition
of the significance and effect they have on the proper planning and
development of adjacent and nearby properties.
Ordinance No. NS-XXXX
Page 3
60A-20
The project's site plan has been designed to integrate the project
site into the surrounding community. The development's primary
access points will be from a right -in, right -out driveway on Redhill
Avenue, and from a signalized intersection on Warner Avenue.
These access points have been designed to ensure the safety of
residents and visitors of the project site, as well as commuters,
employees, and residents of the surrounding community.
Onsite circulation has been designed to ensure a high -quality
pedestrian experience, with wide sidewalks, a central paseo, and
plazas and courtyards that buffer or separate pedestrians from
onsite vehicular traffic. Moreover, the project has been broken into
four primary buildings and two freestanding commercial pads,
which reduces the overall massing of the project and creates a
more pedestrian -scale village of buildings onsite. The two future
roadway connections on the project site will allow the development
to become integrated with the adjacent site to the southwest,
should an application for redevelopment be approved. (As of the
date of this ordinance, no application for redevelopment of the
adjacent site to the southwest has been submitted for the City's
consideration).
(2) Encouraging, securing and maintaining the orderly and harmonious
appearance, attractiveness and aesthetic development of structures
and grounds in order that the most appropriate use and value thereof
be determined and protected.
The project's six buildings on the 14.69-acre site are designed in
a cohesive manner with unifying materials, floor heights, and
articulation using contemporary architecture in an "industrial
tech" style. High -quality building materials will ensure long-term
durability and maintaining high value of the project, including
metal trim, awnings, railing, slats, and cladding; brick veneers
and high -quality light sand finish stucco; glass railing; and poured
concrete forms. Onsite furniture and details, such as lighting,
waste receptacles, benches, tables, and open space areas, have
been designed to complement the site's contemporary
architecture. High ground -floor window and ceiling heights will
contribute to the high -quality commercial component of the
project site, which has been designed to create a dynamic,
commercial and residential village. These finishes and designs
are consistent with the development standards and design
guidelines found in the City's mixed -use zoning areas such as
the Transit Zoning Code and Metro East Mixed Use (MEMU)
Overlay Zone, as well as the Citywide Design Guidelines.
Ordinance No. NS-XXXX
Page 4
60A-21
Open space and amenities will be provided on the site in a
variety of means, including private unit balconies and patios,
amenity decks atop parking structures, ground -level courtyards,
the central paseo, and the central plaza. The resident open
space areas will contain pools, courtyards, exercise areas, relief
areas for pets, and other amenities typical to high -quality mixed -
use developments found in Santa Ana and in Orange County.
Based on a standard of two (2) acres of public park and/or
recreational area per 1,000 residents (SAMC Sec. 35-108), the
proposed project would require 4.2 acres of parkland to serve the
new residents. The onsite total proposed open space is 183,363
square feet (4.21 acres), which is consistent with the SAMC
standard and with other mixed -use projects that provide their
own onsite public and private open space areas.
(3) Providing a method whereby specific development plans are to be
based on the general plan as well as other regulations, programs, and
legislation as may, in the judgment of the city, be required for the
systematic execution of the general plan.
With approval of General Plan Amendment No. 2020-02, the
Project will be consistent with the General Plan Land Use
Element. Although the Project requires an amendment to the
Land Use Element to allow for residential use of the property, the
Project still supports and is consistent with several other
overarching goals and policies of the General Plan. For example,
as described in the associated General Plan Amendment No.
2020-02: Housing Element Goal 2, to create diversity of quality
housing, affordability levels, and living experiences that
accommodate Santa Ana's residents and workforce of all household
types, income levels, and age groups to foster an inclusive
community. Land Use Element Goal 4, to protect and enhance
development sites and districts which are unique community assets
that enhance the quality of life. Urban Design Element, Goal 1, to
improve the physical appearance of the City through development of
districts that project a sense of place, positive community image,
and quality environment.
(4) Recognizing the interdependence of land values and aesthetics and
providing a method to implement this interdependence in order to
maintain the values of surrounding properties and improvements and
encouraging excellence of property development, compatible with the
general plan for, and character of, the city, with due regard for the
public and private interests involved.
Ordinance No. NS-XXXX
Page 5
60A-22
The proposed development contains a large commercial
component of 80,000 square feet of leasable retail, service, and
restaurant area. This volume of commercial space complements
the residents, visitors, and employees working and living on and
around the project site.
The 80,000 square feet of leasable commercial area is among the
largest commercial components proposed in recent mixed -use
developments. For comparison, the Elan project (1660 East First
Street) approved in 2018 contains 603 residential units and 20,000
square feet of commercial space; the First American
redevelopment (114 East Fifth Street) approved in 2019 contains
220 residential units and 12,350 square feet of commercial space,
and The Heritage (2001 East Dyer Road), which is under
construction nearby, contains 1,221 residential units and 18,400
square feet of net new commercial square footage.
The mixture of land uses on the project site, including residential,
commercial, and open space, will contribute to the formation a
dynamic mixed -use village. The commercial and open space
components will serve both residents and visitors of the project
site, as well as the large daytime employee population working in
the project site's immediate vicinity.
(5) Ensuring that the public benefits derived from expenditures of public
funds for improvements and beautification of streets and public facilities
shall be protected by exercise of reasonable controls over the character
and design of private buildings, structures and open spaces.
The mixed -use development will utilize existing water, sewer, and
drainage infrastructure and will not result in the expansion of
infrastructure. In addition, the Project will not result in the
expansion of new or altered police or fire facilities. The Project
will be subject to utility user tax, property taxes based on the
valuation of the new construction and management company
business taxes. The building facades and new landscaping are
designed to deter graffiti, existing sidewalks will be removed and
replaced with new sidewalks that are constructed to current City
standards, new street lights will be installed and the City's
Building Security Ordinance will be implemented which includes
security and crime preventing measures to help reduce City
expenditures on public services and maintenance. In addition,
the development will be subject to all required development
impact fees.
Ordinance No. NS-XXXX
Page 6
60A-23
SECTION 6. INDEMNIFICATION.
A. General Indemnification. The Applicant shall indemnify, protect, defend and
hold the City and/or any of its officials, officers, employees, agents, departments,
agencies, authorized volunteers, and instrumentalities thereof, harmless from any
and all claims, demands, lawsuits, writs of mandamus, and other and proceedings
(whether legal, equitable, declaratory, administrative or adjudicatory in nature), and
alternative dispute resolution procedures (including, but not limited to arbitrations,
mediations, and such other procedures), judgments, orders, and decisions
(collectively "Actions'), brought against the City and/or any of its officials, officers,
employees, agents, departments, agencies, and instrumentalities thereof, that
challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any
permit or approval issued by the City and/or any of its officials, officers, employees,
agents, departments, agencies, and instrumentalities thereof (including actions
approved by the voters of the City) for or concerning the project, whether such
Actions are brought under the Ralph M. Brown Act, California Environmental Quality
Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure
sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law,
ordinance, charter, rule, regulation, or any decision of a court of competent
jurisdiction. It is expressly agreed that the City shall have the right to approve, which
approval will not be unreasonably withheld, the legal counsel providing the City's
defense, and that Applicant shall reimburse the City for any costs and expenses
directly and necessarily incurred by the City in the course of the defense. City shall
promptly notify the Applicant of any Action brought and City shall cooperate with
Applicant in the defense of the Action.
B. Further Indemnification. Within five (5) days of receipt of a referendum
petition by the City, Applicant shall deposit Fifty Thousand Dollars ($50,000)
(`Referendum Deposit") with the City. City may use the funds to pay any and all costs
associated with said referendum measure. If at any time the Referendum Deposit
account has Five Thousand Dollars ($5,000) or less remaining, Applicant shall, within
three (3) days of receiving notice from the City, deposit with the City additional funds
as requested by the City to cover all costs and expenses associated with processing
the referendum and holding the related election. Following certification of the election
results, any funds remaining in the Referendum Deposit account shall be returned to
the Applicant.
SECTION 7. If any section, subsection, sentence, clause, phrase or portion of this
ordinance for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this ordinance. The City Council of the City of Santa Ana hereby
declares that it would have adopted this ordinance and each section, subsection,
sentence, clause phrase or portion thereof irrespective of the fact that any one or more
sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Ordinance No. NS-XXXX
Page 7
60A-24
SECTION 8. CITY COUNCIL ACTIONS: The City Council hereby takes the
following actions:
1. The City Council hereby adopts an Ordinance approving Amendment Application
No. 2020-01 as follows:
A. Subject to compliance with the adopted Mitigation Monitoring and Reporting
Program, the property at 2300, 2310, and 2320 shall be amended to
Specific Development No. 96 and the Specific Development No. 96 plan
shall be adopted as set forth in Exhibit A and Exhibit B, attached hereto
and incorporated herein by reference.
B. The Amendment Application shall not take effect unless and until
Environmental Impact Report No. 2020-01 and General Plan Amendment
No. 2020-02, are each certified and approved by the City Council.
SECTION 9. EXECUTION OF ORDINANCE. The Mayor shall sign this Ordinance and
the Clerk of the Council shall attest and certify to the adoption thereof.
ADOPTED this day of 2020.
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:�4 L
Lisa Storck
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Miguel A. Pulido
Mayor
Ordinance No. NS-XXXX
Page 8
60A-25
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify that the attached
Ordinance No. NS-XXXX to be the original ordinance adopted by the City Council of the
City of Santa Ana on , 2020, and that said ordinance was published
in accordance with the Charter of the City of Santa Ana.
Date:
Daisy Gomez
Clerk of the Council
City of Santa Ana
Ordinance No. NS-XXXX
Page 9
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Exhibit:
60A-27
THE WARNER REDHILL MIXED -USE
SPECIFIC DEVELOPMENT No. 96
Table of Contents
1. Introduction and Applicability of Ordinance ..............................................Page 3
a. Specific Development Location ....................................................Page 3
2. Purpose and Objectives.......................................................................Page 4
3. Land Use and Zoning.........................................................................Page
4
a.
Density and Intensity.................................................................Page
4
b.
Permitted Uses........................................................................Page
5
c.
Development Standards.............................................................Page
6
d.
Off -Street Parking Standards .......................................................Page
7
e.
Open Space Requirements .........................................................Page
7
f.
Walls/ Fences..........................................................................Page
7
4. Design and Performance Standards ......................................................Page 8
a. Materials, Finishes and Colors .....................................................Page 8
b. Exterior Lighting.......................................................................Page 8
c. Refuse Collection and Trash Enclosure .........................................Page 8
d. Utility and Mechanical Equipment .................................................Page 8
5. Public Realm and Landscape Design .....................................................Page 9
6. Signage and Wayfinding......................................................................Page 9
7. Public Art........................................................................................Page 10
8. Property Safety and Maintenance........................................................
Page 10
a.
On -Site Property Manager ........................................................Page
10
b.
Maintenance..........................................................................Page
10
c.
Crime Free Housing................................................................
Page 10
d.
Building Security......................................................................Page
10
e.
Emergency Evacuation Plan ......................................................Page
11
f.
On Going Property Maintenance ................................................Page
11
g.
Avigation Easement.................................................................Page
12
Figures
Figure 1: Specific Development Area ..........................................................Page 3
Tables
Table 1: Permitted Uses..........................................................................Page 5
Table 2: Development Standards...............................................................Page 6
k A-219
SECTION 1 — INTRODUCTION AND APPLICABILITY OF ORDINANCE
The purpose of The Warner Redhill Mixed -Use Specific Development (SD) zone (SD-
96) is to guide the redevelopment of an existing industrial site into a mixed -use and
pedestrian oriented development. SD-96 is authorized by Chapter 41, Division 26,
Section 41-593 et seq. of the Santa Ana Municipal Code (SAMC). SD-96 contains
specific standards and regulations for the purpose of establishing land use regulations
and development and operational standards for the development site. All other
applicable Chapters, Articles, and Sections of the SAMC are in full effect unless
expressly superseded by regulations contained within this specific development.
A. Specific Development Location
The specific development site is 14.37 acres and is located at 2300, 2310, and 2320
South Redhill Avenue in the City of Santa Ana. The site is located at the southwest
corner of Redhill Avenue and Warner Avenue. Regional access to the site is provided
via the Costa Mesa (SR-55) Freeway at the Dyer Road exit. Access to the site is
provided by Red Hill Avenue and Warner Avenue. The site is located within the
southeastern most portion of the City of Santa Ana adjacent to the cities of Tustin and
Irvine and the Tustin Legacy Specific Plan and the Irvine Business Complex.
N
Project Site �I
60A-30
SECTION 2 — PURPOSE AND OBJECTIVES
The specific development is intended to redevelop an industrial site into a mixed -use
and pedestrian oriented community. Located at one of the City's southeastern
gateways, the specific development will function as a key focal center, and serve to link
Santa Ana to surrounding industrial, commercial and residential areas. SD-96 will meet
the following objectives:
1. Facilitate development of a mixed -use village containing commercial and multi-
family residential buildings, which would help meet the region's demand for
housing.
2. Transform an underutilized site with an economically viable development
consistent with other regional redevelopments in the Tustin Legacy Specific Plan
and Irvine Business Complex (IBC) and combines residential uses with
community -serving retail near employment opportunities, freeway access, and
transit.
3. Redevelop existing land uses that would utilize existing infrastructure, including:
water, sewer, arterial roadways, transit, and freeways; and provide non -vehicular
(pedestrian and bicycle) circulation.
4. Develop a mix of housing to assist the City in meeting its jobs/housing balance.
5. Provide onsite uses that reduce vehicular miles traveled (VMT) by providing an
internal pedestrian circulation system that links residential uses, recreation areas,
and retail/commercial areas onsite.
6. Implement the SCAG Regional Transportation Plan/Sustainable Communities
Strategy (RTP/SCS) Land Use Policies related to population and housing by
providing additional housing near employment centers.
SD-96 establishes standards and regulations for protecting the health, safety, and
general welfare of the people of the City by promoting and enhancing the value of
property and encouraging the orderly development of the property.
SECTION 3 — LAND USE AND ZONING
A. Density and Intensity
The maximum authorized building density and intensity for the project is a floor area
ratio (FAR) of 2.06, including residential areas, community -serving areas (e.g., leasing
office, gym and club room), commercial components, and interior corridors. The
maximum residential density permitted is 77 dwelling units per acre.
B. Permitted Uses
1. SD-96 permits the development of a mixed -use community consisting of 80,000
square feet of leasable commercial area to be constructed in conjunction with a
residential component consisting of up to 1,100 residential units configured in
live/work, stacked dwelling, lined block, or podium configurations.
2. This section identifies the permitted, conditional, and accessory or temporary
uses within the SD-96 area. Uses in the table are permitted subject to the
permit criteria referenced. Uses identified by a "P" are permitted by right,
those identified by a "CUP" are subject to a Conditional Use Permit, and those
identified by "LUC" are subject to a Land Use Certificate.
Table 1: Permitted Uses
Land Use Types
SD-96
Additional Use
Regulations
Commercial/retail and service uses such as
bakeries, bookstores, art galleries, food/grocery
P
stores (retail market), pet stores and similar uses.
Office uses. Professional, administrative and
business offices providing personal and
P
professional services, including medical and dental
offices, architects/engineers, and similar uses.
Service oriented office uses including insurance,
real estate, travel, finance (including walk-up
ATMs), creative office co -working (WeWork,
P
Common Desk, etc.), beauty salons, and similar
uses.
Health and Fitness Clubs
P
Tattoo/Body art establishment
P
Restaurants, cafes and eating establishments
P
Outdoor dining
P
Multi -family apartments and/or condominiums and
associated leasing offices and recreational/fitness
P
facilities.
Live/work lofts
P
Alcohol sales for on -site or off -site consumption
CUP
Subject to SAMC Sec.
41-196
Limited artisan/craft manufacturing, ancillary to a
CUP
primary allowed use
Pick-up windows
P
Food vending vehicles
LUC
Subject to Article XIV
Temporary outdoor activities
LUC
Subject to SAMC
Sec.41-195.5
Land Use Types
SD-96
Additional Use
Regulations
Businesses operating between 12:00 a.m.
CUP
(midnight) and 7:00 a.m.
Subject to SAMC Sec.
Major wireless communication facilities
CUP
41-198
Subject to SAMC Sec.
Minor wireless communication facilities
LUC
41-198
Any use not included shall be considered prohibited unless deemed to be similar to an
allowable use as interpreted by the Executive Director of the Planning and Building
Agency or his/her designee.
C. Development Standards
The development standards for SD-96 are subject to and shall comply with the
development approved plans per Development Project No. 2019-06 (DP No. 2019-06)
and the approved Mitigation Monitoring and Reporting Program (MMRP), attached
hereto as Attachment A and Attachment B for reference. The plans shall govern in the
event there is a conflict between the SD and the project plans. The following standards
in Table 3 are minimums unless otherwise indicated.
Table 2 - Development Standards
Item
Standard
Density
77 dwelling units per acre
Floor Area Ratio (FAR)
2.06
Minimum Lot Size
14 acres (entire specific development area)
Building Height
7 Levels; 94 feet (not including subterranean
levels)
Building Setbacks:
Redhill Avenue Setback
10 feet minimum
Warner Avenue Setback
8 feet minimum
Interior Property Line Setback
10 feet minimum
Outdoor Dinning Setbacks:
Redhill Avenue Setback
6 feet minimum
Table 2 Notes:
(1) Prior to the issuance of building permits, any and all subdivision maps, lot line adjustments, or
voluntary lot mergers shall be approved and recorded.
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D. Off -Street Parking Standards
The minimum off-street parking requirements for the development is as follows:
1. Two (2) vehicle parking spaces per residential unit, not to be less than 2,200
residential parking spaces;
2. Five (5) vehicle parking spaces per 1,000 square feet of gross floor area of
leasable commercial space, achieved through 351 parking spaces and 49
valet service spaces as administered per the approved Parking Management
Plan, attached hereto as Attachment C;
3. One (1) bicycle parking space per five (5) residential units and one (1) space
per each 7,500 square feet of commercial space; and
4. One (1) motorcycle parking space per every 250 vehicle parking spaces.
E. Open Space Requirements
The development shall provide open space, public plazas and pedestrian paseos as
shown on the approved plans.
1. Common Open Space: The project will provide a minimum of 15 percent of
the total lot size shall be open space in the form of common, landscaped
open space areas, pools, spas, deck, courtyard and lobby, interior community
room, dining room, gym, business room, etc.
2. Private Open Space: Each residential unit shall have a patio or balcony of a
minimum size of 50 square feet.
F. Walls/Fences
A new solid block wall with a minimum height of seven (7) feet shall be constructed
along the project site's entire perimeter, except in street -side landscape setback areas.
The block wall shall be designed to contain a decorative cap, regularly -spaced
decorative pilasters, and a decorative finish in accordance to the design provisions
contained within the most recent version of the City's design guidelines. Fences/walls
along Redhill Avenue and Warner Avenue properties lines are prohibited.
�4" —
SECTION 4— DESIGN AND PERFORMANCE STANDARDS
This section provides standards and guidelines to ensure the development is of high
quality and cohesive and to facilitate exterior alterations to the development.
A. Materials, Finishes and Colors
Exterior building and exterior parking structure materials, finishes and colors for the
project shall comply with the approved materials board submitted for the project and as
approved by the Planning and Building Agency Executive Director. Any changes to the
materials, finishes and colors shall be approved by the Planning and Building Agency
Executive Director. All trash enclosures and similar ancillary structures shall match the
texture, material and color of the primary building. Double -paned windows shall be
installed for the project as a means to further reduce noise levels.
B. Exterior Lighting
An exterior lighting plan for the security and safety of on -site areas such as building
entrances, parking, loading, pedestrian walkways, alley walkways and open space
areas shall be provided to the Planning and Building Agency Director for review and
approval. A minimum of one foot-candle evenly distributed across a parking lot is
recommended. At entrances and loading areas, up to 2 foot-candles may be
appropriate. Decorative night lighting is required. Low energy lights, such as LED lights
or solar powered lights, shall be used whenever possible. Light fixtures and their
structural support shall be designed to be architecturally compatible with the main
buildings on -site. Direct glare onto adjoining property, streets, or skyward shall be
avoided. All lighting fixtures shall be shielded to confine light spread on -site.
C. Refuse Collection and Trash Enclosure
Bins for recycling and any other refuse mandated by the State of California shall be
provided for all uses in trash enclosures. There shall be an onsite designated trash
staging area only to be used on service days and the staging area and bins shall not
disrupt vehicular use of streets or drive aisles. The minimum requirements needed to
service the development shall be clearly indicated on the plans and subject to the
approval of the Public Works Agency.
D. Utility and Mechanical Equipment
All utility lines shall be placed underground except where required to be above -ground
by utility providers. Where equipment is located above -ground, it shall be screened from
public view. This includes all ground, wall, and roof mounted equipment. Screening
elements shall be an integral part of the building; no screening method shall give the
appearance of being "tacked on." Typical ground -mounted equipment shall be
adequately screened with decorative walls and/or landscaping.
SECTION 5 - PUBLIC REALM AND LANDSCAPE DESIGN STANDARDS
A detailed and comprehensive Public Realm and Landscape Plan shall be submitted to
the Planning and Building Agency Executive Director or his/her designee for review and
approval prior to the issuance of building permits.
The plan shall comply with the City's Water Efficient Landscape Ordinance (WELD)
Chapter 41, Article XVI of the SAMC. The plan shall include an irrigation system layout
with the location of controllers and points of connection with data on valve sizes and
gallons per minute (G.P.M.), the size and location of sleeves and all spray heads,
including the location of conventional systems and drip systems; an irrigation legend
with complete specifications; irrigation notes and construction details of all assemblies
and components; a recommended irrigation schedule, preferably on an annual basis;
and a summary block on the initial page of submitted plans that will present the above
information clearly and accurately.
The plan shall include a Plant Legend containing: plant symbol, scientific name of plant
material, common name of plant material, plant container size, and plant spacing. Very
low, low and medium water usage plant materials are encouraged.
The plan shall include details of site furnishings. Site furnishing should be compatible in
style with the buildings and selected to bring comfort, scale and design expression to
the streetscape. These must also be highly durable and easy to maintain. Planters and
pots should be used to complement the project architecture and other site amenities;
avoiding obstructions to pedestrian traffic flow with planters and pots. All elements of
the furniture palette should be uniform.
Landscaping for the project shall be completed in phases by building and shall be
installed and inspected prior to occupancy of units within that building. The Owner shall
be responsible for maintaining all common area landscaping within the development.
SECTION 6 - SIGNAGE AND WAYFINDING
A comprehensive sign program shall be submitted for review and approval by the
Planning and Building Agency Executive Director or his or her designee prior to the
issuance of building permits. The sign program may include creative signage where the
contents and standards of the sign program are not consistent with the Santa Ana
Municipal Code, provided the sign program complements the form and function of the
building and contributes to the aesthetics of the project.
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SECTION 7 — PUBLIC ART
A Public Art Program shall be submitted to the Planning and Building Executive Director
for review and approval prior to the issuance of building permits. Public Art shall be
installed and maintained with a value equivalent to one-half of one percent (0.5%) of the
total construction cost of the development. Total construction cost shall mean all design,
engineering and construction costs.
SECTION 8 — PROPERTY SAFETY AND MAINTENANCE
A. On -Site Property Manager
The specific development area shall include 24-hour on -site Property Management
services and personnel. Up-to-date 24-hour contact information for the on -site
personnel shall be provided to the following City Agencies on an ongoing basis:
1. Police Department,
2. Fire Authority,
3. Planning and Building Agency, and
4. Community Development Agency.
B. Maintenance
The property shall be maintained free of trash, debris and graffiti. Graffiti shall be
removed within 24-hours after its appearance in accordance with Section 10-227 of the
Santa Ana Municipal Code.
C. Crime Free Housing
Prior to submittal into building plan check, a Crime Free Housing Plan shall be
submitted for review and approval by the Planning and Building Agency Director. The
Plan shall be approved prior to occupancy of the first unit and shall be implemented and
administered by the Owner.
D. Building Security.
All structures and parking lots shall comply with the provisions of Chapter 8, Article II,
Division 3 of the Santa Ana Municipal Code (Building Security Ordinance).
E. Emergency Evacuation Plan.
An approved Emergency Evacuation Plan (EEP) from City Police and Fire Protection
agencies shall be on file for the project. Up-to-date 24-hour emergency contact
information for the on -site personnel shall be provided to the City on an ongoing basis
and the approved EEP shall be kept onsite and also be submitted to the following City
Agencies:
1. Police Department
2. Orange County Fire Authority
3. Planning and Building Agency
4. Community Development Agency
F. On Going Property Maintenance.
Developer (and the owner of the property upon which the authorized use and/or
authorized improvements are located if different from the Developer) shall execute a
maintenance agreement with the City of Santa Ana which shall be recorded against the
property and which shall be in a form reasonably satisfactory to the City Attorney. The
maintenance agreement shall contain covenants, conditions and restrictions relating to
the following:
1. Compliance with operational conditions applicable during any period(s) of
construction or major repair (e.g., proper screening and securing of the
construction site; implementation of proper erosion control, dust control and
noise mitigation measure; adherence to approved project phasing etc.);
2. Compliance with ongoing operational conditions, requirements and
restrictions, as applicable (including but not limited to hours of operation,
security requirements, the proper storage and disposal of trash and debris,
enforcement of the parking management plan, and/or restrictions on certain
uses);
3. Ongoing compliance with approved design and construction parameters,
signage parameters and restrictions as well as landscape designs, as
applicable;
4. Ongoing maintenance, repair and upkeep of the property and all
improvements located thereupon at all times (including but not limited to
controls on the proliferation of trash and debris about the property; the proper
and timely removal of graffiti; the timely maintenance, repair and upkeep of
damaged, vandalized and/or weathered buildings, structures and/or
improvements; the timely maintenance, repair and upkeep of exterior paint,
parking striping, lighting and irrigation fixtures, walls and fencing, publicly
accessible bathrooms and bathroom fixtures, landscaping and related
landscape improvements and the like, as applicable);
5. If Developer and the owner of the property are different (e.g., if the applicant
is a tenant or licensee of the property or any portion thereof), both the
applicant and the owner of the property shall be signatories to the
maintenance agreement and both shall be jointly and severally liable for
compliance with its terms;
6. The maintenance agreement shall further provide that any party responsible
for complying with its terms shall not assign its ownership interest in the
property or any interest in any lease, sublease, license or sublicense, unless
�A-V
the prospective assignee agrees in writing to assume all of the duties and
obligations and responsibilities set forth under the maintenance agreement;
7. The maintenance agreement shall contain provisions relating to the
enforcement of its conditions by the City and shall also contain provisions
authorizing the City to recover costs and expenses which the City may incur
arising out of any enforcement and/or remediation efforts which the City may
undertake in order to cure any deficiency in maintenance, repair or upkeep or
to enforce any restrictions or conditions upon the use of the property. The
maintenance agreement shall further provide that any unreimbursed costs
and/or expenses incurred by the City to cure a deficiency in maintenance or
to enforce use restrictions shall become a lien upon the property in an amount
equivalent to the actual costs and/or expense incurred by the City; and
8. The execution and recordation of the maintenance agreement shall be a
condition precedent to the issuance of final approval for any construction
permit related to this entitlement.
G. Avigation Easement.
Developer (and the owner of the property upon which the authorized use and/or
authorized improvements are located if different from the Developer) shall, prior to
issuance of a building permit, execute and record an avigation easement on the area
governed by this specific development.
ATTACHMENT A: Attached to the Agenda as "Plans."
ATTACHMENT B: Attached to the Staff Report as Exhibit B to Exhibit 2
ATTACHMENT C: Attached to the Staff Report as Exhibit 7
EXHIBIT 3
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Ana
Planning Division
20 Civic Center Plaza (M-20)
P.O. Box 1988
Santa Ana, California 92702
FREE RECORDING
GOVERNMENT CODE § 27383
DEFENSE AND INDEMNIFICATION AGREEMENT
"Phis Defense and Indemnification Agreement ("Agreement") is made and entered into
this day of August 2020, by and between , ("Property Owner") and
Arrimus Capital Investments, LLC ("Applicant"), and the City of Santa Ana, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State of
California ("City"). Property Owner and Applicant, and their heirs and assigns, shall be
collectively referred to as "Developer" herein. City and Developer are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Party".
RECITALS
A. The Developer has submitted formal applications to the City for the approval of a
mixed -use development project, to be located at 2300, 2310 and 2320 S. Red Hill
Avenue, Santa Ana, as more particularly described in the legal description set forth in
Exhibit "A" attached hereto and incorporated herein ("Property" or "Project").
B. California Public Utilities Code (PUC) Section 21676(b) requires the City of Santa
Ana to refer projects requiring a general plan amendment or a zone change to the
Orange County Airport Land Use Commission (AL0Q for consistency with the
2008 John Wayne Airport (JWA) Environs Land Use Plan (AELUP).
CThe ALUC is charged with the adoption of an AELUP, establishing guidelines for
compatible development in the vicinity of an airport within the jurisdiction of the
County of Orange. PLiC Section 21670(a) sets forth the fundamental purpose of
the ALUC as: (1) "... to promote the overall goals and objectives of the California
airport noise standards adopted pursuant to Section 21669 and to prevent the
creation of new noise and safety problems" and (2) "... to protect public health,
safety, and welfare by ensuring the orderly expansion of airports and the adoption
of land use measures that minimize the public's exposure to excessive noise
and safety hazards within areas around public airports to the extent that these
areas are not already devoted to incompatible uses".
D. On May 21, 2020, the ALUC found the proposed Project to be inconsistent with
60A-41
the 2008 JWA AFLUP by a 6-0 vote. ALUC's findings were made pursuant to
ALLUP Sections 1.2 and 2.1.4, and PUC Section 216749(a). These sections
empower the ALUC "to assist local agencies in ensuring compatible land uses in
the vicinity of existing airports to the extent that the land in the vicinity of those
airports is not already devoted to incompatible uses," and "to coordinate planning
at the state, regional and local levels so as to provide for the orderly development
of air transportation, while at the same time protecting the public health, safety
and welfare".
E. On May 26, 2020, the Planning Commission held a duly noticed public hearing
on the entitlements for the project. Prior to the Planning Commission taking
action on the item, staff provided a verbal update informing the Commission
regarding ALUC's determination made on May 21, 2020, after the publication of
the staff report to the Commission, that the project was inconsistent with the
Airport Environs Land Use Plans [AELUP]. Following staffs presentation, and
holding the public hearing, the Planning Commission voted 5:1:1 to recommend
that the City Council approve the required entitlements and environmental
documentation for the proposed Project.
F. Pursuant to PUC Section 21676(b), the City may, after a public hearing, propose
to overrule the commission by a two-thirds vote of its governing body if it makes
specific findings that the proposed action is consistent with the purposes of
Article 3.5 Airport Land Use Commission of the PUC. At least 45 days prior to
the decision to overrule the ALUC, the local agency governing body shall provide
the ALUC and the State Division of Aeronautics a copy of the proposed decision
and findings. The commission and the Division of Aeronautics may provide
comments to the local agency governing body within 30 days of receiving the
proposed decision and findings. If the ALUC and Mate Division of Aeronautics
comments are not available within this time limit, the local agency governing
body may act without them. Should comments be received, the City Council must
include the comments from the ALUC in the public record of any final decision to
overrule the ALUC. This decision shall be determined at a public hearing to make
the specific findings that the proposed overruling is consistent with the purposes
stated in PUC Section 21670.
G. On June 16, 2020, the City Council of the City of Santa Ana adopted a resolution
(Resolution No. 2020-051) authorizing the Planning Division to initiate the
preparation and drafting of findings and determination overruling the Orange
County ALIJC's determination of inconsistency associated with the proposed
Project and to provide notice in accordance with PUC Section 21676(b) to the
ALUC and the State Division of Aeronautics.
H. On June 30, 2020, the Planning Division of the City of Santa Ana provided a
Notice of Intent to overrule the Orange County ALUC's determination that the
Project is inconsistent with the AELUP of JWA and findings to the ALUC and the
State Division of Aeronautics.
60A-42
On Aug -List 6, 2020, the City gave public notice of a City Council public hearing
for consideration of overruling ALUC's determination on the proposed Project by
advertising in the Orange County Register, a newspaper of general circulation, by
mailing to owners of property and residents within 500 feet of the Project, and
posting a notice on site.
On August 18, 2020, after a duly noticed public hearing at which all members of the
public were afforded the opportunity to provide their comments and testimony, the
City approved the zone change and general plan amendment, overruled the ALUC's
determination of inconsistency of the Proposed Project, and certified the
environmental impact report for the Project. All correspondence received by the City
from the Al _IUC, the City of Tustin, and the State of California, Department of
Transportation - Division of Aeronautics, have all been included in the public record.
K. In order to move forward with the processing of the Project, and to specifically
indemnify the City for any property or personal injury damages or claims related
to or associated with the City's action to over -rule the ALUC's Finding of
Inconsistency, the Parties desire to enter into this Defense and Indemnification
Agreement. Property Owner and Applicant, and their successors and assigns,
shall be jointly and severally responsible for all obligations of the Developer
pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual and respective promises, and
subject to the terms and conditions hereinafter set forth, the Parties agree as follows:
I. Incorporation of Recitals. The Parties incorporate each of the Recitals in this
Agreement as if fully set forth herein.
2. Indemnification and Defense. Developer shall indemnify, protect, defend and
hold the City and/or any of its officials, officers, employees, agents, departments, agencies, and
instrumentalities thereof (together with the City, collectively, the "City parties"), harmless from
any and all claims including property damage and personal injury claims, demands, lawsuits,
writs of mandamus, other proceedings (whether legal, equitable, declaratory, administrative or
adjudieatory in nature), and alternative dispute resolution procedures (including, but not limited
to arbitrations, mediations, and such other procedures), judgments, orders, and decisions, and any
claim or award of costs, attorneys' fees, and/or expert witness lees incurred in the pursuit of any
of the foregoing (collectively "Claims"), brought against the City Parties, related to, arising Out
of and/or associated with the City action overruling the ALUC's Determination of Inconsistency
for the Project. Developer obligations under this section are subject to the following:
a. City shall promptly notify Developer of any Claims brought and City shall
cooperate with Developer in the defense of the Claims.
b. Developer's liability under this section shall not apply to any liabilities,
losses, claims, actions, causes of action or demands arising from a City
Party's negligence, willful misconduct or criminal acts, or to the extent
that City fails to provide notice as set forth in subsection (a) above or fails
to follow its own procedures for the processing of the Project.
C. City shall cooperate with Developer's defense against any such Claims,
including providing reasonable access to information, evidence, and
potential witnesses necessary to defend against such Claims.
d. It is expressly agreed that Developer shall pay for the defense of any
Claims brought against City, that the City shall have the right to approve,
which approval will not be unreasonably withheld, conditioned or delayed,
the Legal counsel providing the City's defense, and that Developer shall
reimburse the City for any costs and expenses directly and necessarily
incurred by the City in the course of the defense. However, nothing herein
shall prohibit the City from participating in the defense of any litigation by
its own counsel at its own cost and expense.
C. Developer shall have the right to settle or compromise any Claims arising
hereunder with sole payment obligation; provided, however, that if such
settlement or compromise involves the City as a named defendant,
Developer shall first obtain the written consent of City, which shall not be
unreasonably withheld, conditioned or delayed.
3. Counsel. The Parties represent that they have consulted or have had the
opportunity to consult legal counsel prior to the execution of this Agreement and have executed
this Agreement with fill lunowledge of its meaning and effect.
4. Term. This Agreement shall be recorded and shall rum with the land to benefit the
City, in perpetuity unless and until the Project no longer exists and the City agrees to file and
record a release of such Agreement.
5. Bindine. The Parties agree that the terms, conditions and provisions of this
Agreement are binding upon, and shall inure to the benefit of, all assigns and successors in interest
of each of the Parties hereto. If during the tern of this Agreement, Property Owner transfers
ownership of the Property to a new owner, all benefits to and obligations of Property Owner
under this Agreement shall automatically transfer to the new owner and thereafter, the term
"Property Owner" shall be deemed to mean such new owner. Also in that event, Property Owner
shall automatically be released as a Party to the Agreement and no longer be entitled to the
benefits of or be subject to any obligations under this Agreement.
fi. Additional Acts. The Parties agree to perform any acts and execute any
11
1
documents consistent with the terms and conditions of this Agreement, which may be needed.,
desired or required to effectuate the teens, conditions and provisions hereof.
7. Entire Agreement. Except as otherwise provided for herein, this Agreement
constitutes the entire and only agreement between the Parties with reference to the subject matter
hereof and supersedes any prior representation or agreement, oral or written, with respect thereto.
The Parties further agree that no representation, warranty, agreement or covenant has been made
with regard to this Agreement, except as expressly recited herein and that in entering into this
Agreement, no Party is relying upon any representation, warranty, agreement or covenant not
expressly set forth herein.
8. No Admissions. Each Party agrees that this Agreement is made in resolution of
potentially disputed claims, and that by entering into and performing the obligations of this
Agreement, no party concedes or admits the truth of any claim or any fact and the execution and
performance of this Agreement shall not be construed as an admission by any Party.
9. Governing Law. This Agreement has been executed and delivered in the State of
California and the validity, interpretation, performance, and enforcement of any of the clauses of
this Agreement shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this
Agreement.
10. Mutual Drafting.. The Parties agree that this Agreement shall not be construed in
favor of, or against, any Party by reason of the extent to which any Party or its counsel
participated in the drafting of this Agreement.
11. Amendment. This Agreement can be amended only by a writing signed by each of
the Parties hereto.
12. Independent Parties. None of the terms, provisions, or conditions of this
Agreement shall be deemed to create a partnership between the Parties hereto and any of their
heirs, successors, or assigns, nor shall such terms, provisions or conditions cause them to be
considered joint ventures or members of any joint enterprise.
13. Notice. Any notice, tender,, demand, delivery, or other communication pursuant
to this Agreement shall be in writing and shall be deemed to be properly given if delivered in
person, sent by reputable overnight mail delivery service, mailed by first class or certified mail,
postage prepaid, or sent by facsimile or other telegraphic or electronic communication in the
manner provided in this Section, to the following persons;
To City: City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Facsimile: (714) 647-6956
Courtesy copies to: City of Santa Ana
Planning Department
20 Civic Center Plaza (M-20)
Santa Ana, CA 92702
Facsimile:
and City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.Q. Box 1988
Santa Ana, California 92702
Facsimile: (714) 647-6515
Developer: Arrimus Capital Investments, LLC
240 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attn: Chris Lee
A party may change its address by giving notice in writing to the other party. Thereafter
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If personally delivered, such communication shall be effective on receipt. If
sent by overnight mail delivery service or first class, certified mail, return receipt requested, such
communication shall be effective on receipt, rejection or inability to deliver. If sent by facsimile
or electronic mail, such communication shall be effective or deemed to have been given twenty-
four (24) hours after the time set forth on either the transmission report issued by the transmitting
facsimile machine or the electronic mail message, as applicable, addressed as set forth above.
For purposes of calculating these time frames, weekends, federal, state, County or City holidays
shall be excluded.
14. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute the same Agreement.
Electronic signatures will have the same force and effect as original signatures.
15. Authori Each undersigned represents and warrants that its signature herein
below has the power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnity City fully, including reasonable costs and attorney's fees,
for any injuries or damages to City in the event that such authority or power is not, in fact, held
by the signatory or is withdrawn.
16. Breach/Remedies. If the Developer fails to properly perform any of its
obligations hereunder, City shall be entitled to notify the Developer to rectify such breach and
perform its due obligations within a reasonable period of time. If Developer fails to rectify its
breach within the prescribed period of time, the City shall be entitled to seek any and all possible
remedies according to applicable laws, including but not limited to claiming for compensation.
Z ' •.
IN WITNESS WHEREOF, the parties hereto have executed this Defense and
Indemnification Agreement the date and year first above written.
ATTEST:
CITY OF SANTA ANA,
a charter city and municipal
corporation
Daisy Gomez Kristine Ridge
City Clerk City Manager
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:
Lisa F. Storck
Assistant City Attorney
APPLICANT:
RECOMMENDED FOR APPROVAL: Animus Capital, LLC
Minh Thai
Executive Director
Planning and Building Agency
(� L
By: Chris Lee
Its: A^ 4. + Y e Q.
PROPERTY OWNER:
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Name: "I-ww
Title: &Awv,,�Tt-) need
60A-47
EXHIBIT A
LEGAL DESCRIPTION
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