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HomeMy WebLinkAboutSPEC 1 PUBLIC HEARING TO CONSIDER ISSUANCE BY THE CA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY OF BONDS WITHIN THE CITY OF TUSTIN• Agenda Item SPEC 1 AGENDA REPORT Reviewed: City Manager Finance Director N/A MEETING DATE: AUGUST 18, 2010 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: REDEVELOPMENT AGENCY STAFF SUBJECT: PUBLIC HEARING TO CONSIDER ISSUANCE BY THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY OF BONDS WITHIN THE CITY OF TUSTIN SUMMARY: A public hearing has been noticed to consider the request by California Statewide Communities Development Authority (CSCDA) to issue tax exempt multi-family housing revenue bonds for purposes of financing the acquisition and construction of the 240 unit Coventry Court project at Tustin Legacy. RECOMMENDATION: It is recommended that the City Council adopt Resolution 10-79 approving the issuance of Multi- family housing revenue bonds for the purpose of financing the acquisition and construction of the Coventry Court Senior Citizen Apartment Project, subject to conditions contained in the resolution. FISCAL IMPACT: No fiscal impact anticipated. BACKGROUND: The City Council is being asked to adopt a resolution which would approve the issuance of multifamily housing revenue bonds by the California Statewide Communities Development Authority ("CSCDA") for the purpose of financing the acquisition and construction of a multi- family residential housing facility to be located in the City (the "Project"). The purpose of the resolution is to allow the financing to meet a requirement of the Internal Revenue Code of 1986. The adoption of this resolution is the first step in the process of financing the proposed Project. Prior to the issuance of bonds, the Project will need to receive "private activity bond" allocation from the California Debt Limit Allocation Committee (CDLAC) and CSCDA will be required to adopt a resolution which would approve the execution and delivery of certain bond documents that would reflect the terms of the bonds. The Internal Revenue Code of 1986 (the "Code") requires that the "applicable elected representatives" of the jurisdiction in which a project to be financed with "private activity bonds" Page 2 is situated adopt a resolution approving the issuance of such "private activity bonds" after holding a public hearing which has been noticed in a newspaper of general circulation in such jurisdiction. The City Council is being asked to hold such public hearing which has been noticed as required by the Code. The proposed resolution would act as the approval by the "applicable elected representatives" with respect to the proposed Project. The CDLAC application for "private activity bond" allocation for amulti-family housing project requires the inclusion of the approval resolution. If the City Council adopts this resolution, CSCDA will proceed with the submission to CDLAC of an application for "private activity bond" allocation for the purpose of financing the acquisition and rehabilitation of the Project. As announced in the published notice, this hearing is simply an opportunity for all interested persons to speak or to submit written comments concerning the proposal to issue the debt, the nature or location of the Project. There is no obligation on the part of the City Council to respond to any specific comments made or submitted at the public hearing. The City would not be a party to the financing documents. As set forth in Section 9 of the Amended and Restated Joint Exercise of Powers Agreement of CSCDA, the debt would not be secured by any form of taxation, or by any obligation of either the City or CSCDA. Neither would the debt represent or constitute a general obligation of either the City or CSCDA. Pursuant to the governing California statutes and the JPA Agreement, a member of CSCDA is not responsible for the repayment of obligations incurred by CSCDA. The debt would be payable solely from amounts received pursuant to the terms and provisions of financing agreements to be executed by the developer of the proposed facility. In the financing documents the developer will also provide comprehensive indemnification to CSCDA and its members, including the City. The City's membership in the Authority bears with it no cost or other financing obligation, but serves as a public acknowledgement by the host jurisdiction of the project financing. However, recognizing issues associated with the Coventry Court project, the proposed resolution which is attached for consideration by the City Council recommends that the City Council's action be expressly conditioned upon the requirement that the Project specifically comply with all requirements of City Council Resolution 10-70, including but not limited to the requirement for the developer to enter into the specific Supplemental City Regulatory Agreement on the Project attached as Exhibit A, which includes compliance with all City Council entitlement conditions for the project (Attachments 1-3 of Exhibit A), as well the requirement to enter into a regulatory agreement related to the affordability and age restrictions for the project (Attachment 4 of Exhibit A). Exhibit A also includes a requirement on the Project to reimburse the City an administrative fee as long as the Project or any portion of the Project is exempt from property tax levies. CSCDA staff will be available at the meeting as well as City Council staff to answer any questions that the City Council might have at the hearing. ,;~~ Christine Shingleto Assistant City Manager RESOLUTION NO. 10-79 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN APPROVING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS FOR THE PURPOSE OF FINANCING THE ACQUISITION AND CONSTRUCTION OF THE COVENTRY COURT APARTMENTS The City Council of the City of Tustin finds: A. The California Statewide Communities Development Authority (the "Authority") is authorized by the laws of the State of California (the "Law") to execute and deliver multifamily housing revenue obligations for the purpose of financing the acquisition, construction/rehabilitation, and development of multifamily residential rental facilities located within the area of operation of the Authority which are to be occupied, in part, by very low and low income tenants. B. Tustin Coventry Seniors, LP, a California limited partnership (the "Borrower"), has requested the Authority to issue and deliver multifamily housing revenue obligations in the anticipated principal amount of $48,000,000 (the "Obligations"), the proceeds of which may only be used for the purpose of financing the acquisition and construction of a multifamily residential senior rental facility to be commonly known as Coventry Court located at 17100 Cambridge Way in the City of Tustin, California (the "Project"). C. The Obligations which are expected to be issued and delivered to finance the acquisition and construction of the Project would be considered qualified exempt facility bonds" under Section 142 (a) of the Internal revenue Code of 1986, as amended (the "Code"), and Section 147(f) of the Code requires that the "applicable elected representatives" with respect to the jurisdiction in which the Project is located hold, or cause to be held, a public hearing with respect to the issuance and delivery of the Obligations. The interest on the Obligations may qualify for exclusion from gross income under Section 103 of the Code only if the Obligations are approved in accordance with section 147(f) of the Code. D. The City of Tustin will have no liability with respect to the issuance of the Obligations or the repayment of any debt service relating to such Obligations. E. The City Council of the City of Tustin, as the "applicable elected representatives" of the City of Tustin as required under the Code, has held the requisite public hearing at which all those interested in speaking with respect to the proposed financing of the Project were heard. Resolution 10-79 Page 1 of 3 NOW, THEREFORE, the City Council of the City of Tustin resolves: Section 1. The City Council hereby finds and determines that the foregoing recitals of findings are true and correct. Section 2. For purposes of the requirements of the Code only, the City Council hereby approves the proposed financing of the Project by the Authority with the proceeds of the Obligations; provided, however, that such approval is expressly conditioned upon the requirement that the Borrower prior to receipt of any bond proceeds from the Authority first enter into a Supplemental City Regulatory Agreement with the City of Tustin executed in connection with the issuance of the Bonds which include compliance all of the City required conditions identified in the Supplemental City Regulatory Agreement attached as Exhibit A incorporated herein, including but not limited the execution of the City Regulatory Agreement attached as Attachment 4 of Exhibit A incorporated herein. Section 3. The issuance and delivery of the Obligations shall be subject to the approval of and execution by the Authority of all financing documents relating thereto to which the Authority is a party and subject to the sale of the Obligations by the Authority. Section 4. The adoption of this Resolution is solely for the purpose of meeting the requirements of the Code and shall not be construed in any other manner, the City nor its staff having fully reviewed or considered the financial feasibility of the Project or the expected financing or operation of the Project with regards to any State of California statutory requirements, and such adoption shall not obligate (i) the City to provide financing to the Borrower for the acquisition, construction and development of the Project or to issue the Obligations for purposes of such financing; or (ii) the City, of or any department of the City, to approve any application or request for, or take any other action in connection with, any environmental, General Plan, zoning or any other permit or other action necessary for the acquisition, construction, development or operation of the Project. Section 5. The City Clerk of the City shall forward a certified copy of this Resolution and a copy of the affidavit of publication of the notice of public hearing to: Thomas A. Downey The Orrick Building Orrick, Herrington & Sutcliffe LLP 405 Howard Street Resolution 10-79 Page 2 of 3 San Francisco, California 94105 Section 6. The City Clerk shall certify to the adoption of this Resolution, and thenceforth and thereafter the same shall be in full forth and effect. PASSED AND ADOPTED at a special meeting of the City Council held on the 18th day of August, 2010. JERRY AMANTE Mayor PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF TUSTIN ) PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 10-79 was duly passed and adopted at a special meeting of the Tustin City Council, held on the 18th day of August, 2010, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER, CITY CLERK Resolution 10-79 Page 3 of 3 ATTACHMENTS: EXHIBIT A Resolution 10-79 Page 4 of 3 EXHIBIT A SUPPLEMENTAL CITY REGULATORY AGREEMENT CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and when recorded mail to: Tustin City Clerk and Assistant City Manager The City of Tustin 300 Centennial Way Tustin, CA 92780 (space above for recorder's use) SUPPLEMENTAL REGULATORY AGREEMENT COVENTRY COURT SENIOR APARTMENT PROJECT This Supplemental City Regulatory Agreement ("Supplemental City Regulatory Agreement") is made and entered into as of August , 2010 by and between the City of Tustin, a municipal corporation and public body corporate and politic of the State of California ("City"), and Tustin Coventry Seniors, LP, a California limited partnership. A. The Tustin City Council at a regular meeting on August 18, 2010 adopted Resolution No. 10-79 approving the issuance of Multi-family Housing Revenue Bonds by California Statewide Communities Development Authority for the acquisition and construction by Tustin Coventry Seniors, LP, a California limited partnership (the "Developer"), of a 240 unit Coventry Court Apartments project ("Project") to be located on that certain real property as legally described as follows: Lot 265 of Tract No. 16581, in the City of Tustin, County of Orange, State of California, as shown on the map recorded in Book 877 Pages 33 through 50 inclusive Miscellaneous Maps, in the office of the county recorder of Orange County. B. Developer has also obtained Tustin City Council approval of Conditional Use Permit 09-24 and Design Review 09-024 authorizing the development of a 240-unit senior apartment project (age restricted to persons of 55 years of age or older, with 153 required affordable units), Amendment to Concept Plan 03-003 and Amendment to a Tentative Tract Map 16581 with adoption of Tustin City Council Resolution Nos. 10-33, 10-34 and 10-35. Of the 240 units in the Coventry Court project, 153 units are rent restricted to require occupancy by senior citizens who are Affordable Households, with the remaining 87 units age restricted for occupancy by Senior Citizens, but shall not be income restricted. Conditions of Tustin City Council Resolutions Nos. 10-33, 10-34, and 10-35 require the Developer's agreement to enforce certain senior citizen housing and affordable senior housing restrictions. NOW THEREFORE, in consideration of the City's agreement to support the Project pursuant to Resolution No. 10-79 and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer hereby agree as follows: Section 1. Project Compliance with City Entitlements. Developer shall comply with all conditions of City's entitlement approvals for the Project including City Council Resolution Nos. 10-33, 10-34, and 10-35 ("Entitlements"), attached hereto as Attachments 1, 2, and 3 and incorporated herein. Any Regulatory Agreement to be executed between CSCDA and the Developer shall not supersede, alter, or modify any applicable requirements that the City has placed on the Project pursuant to the Entitlements for the Project. Section 2. Age Restrictions and Affordability Requirements. Developer shall be required to enter into that certain Regulatory Agreement and Declaration of Restrictive Covenants between the City of Tustin and Tustin Coventry Seniors, LP ("City Regulatory Agreement") attached hereto as Attachment 4 and incorporated herein, and Developer shall comply with all requirements of said City Regulatory Agreement including the tenant senior citizen and income qualifying requirements and other terms and conditions. Any Regulatory Agreement to be executed between CSCDA and Developer shall not supersede, alter, or modify the requirements contained in the City Regulatory Agreement. Section 3. Payment of Fees and Tax Equivalent Pa nor ents. A. To the extent the Project is exempt from property tax levies, the Developer shall pay an annual administrative fee to the City of Tustin in an amount equal to the City's share of property taxes for the Project, if the exemption or exemptions were not applicable to the Project. The fee shall commence on the first tax year subsequent to completion of construction for the Project commencing and due on April 30th of such year and shall remain in effect until such time as the City Council determines in its sole discretion that such fee is no longer fair or equitable. Page 2 B. Subject to Section 3 D below, each year thereafter on the anniversary of the first payment due, Developer shall pay to the City of Tustin an administrative fee equal to the prior year's payment, plus an additional two percent (2%). C. The administrative fee shall be payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300 Centennial Way, Tustin, California 92780, or at such other place or places as the City from time to time may designate by written notice to Developer. D. The amounts payable under this Section 4 shall be payable from "Available Cash Flow" defined to mean fifty percent (50%) of "Net Operating Income" less all payments required to be made by Developer with respect to any mortgage loan for the project, and provided further, that the deferral of any payment due to the lack of Available Cash Flow shall not relieve the Developer of its payment obligation and such obligation shall be cumulative until paid in full. The obligation to pay deferred administrative fees which have accrued as of the termination of this Supplemental City Regulatory Agreement shall survive the termination of this Supplemental Regulatory Agreement. E. The administrative fee shall be due as specified in this Supplemental City Regulatory Agreement. A ten percent (10%) default penalty shall be added to any late payment, together with interest from the date such payment was due at the rate of eight (8%) per annum until paid. Section 4. Remedies and Priorities. Upon any default by the Developer, the City may seek specific performance of this Supplemental City Regulatory Agreement or enjoin acts which maybe in violation of this Supplemental City Regulatory Agreement or unlawful, provided that no obligation of the Developer under this Supplemental City Regulatory Agreement shall be secured by or in any manner constitute a lien on, or security interest in, the Project, whether in favor of the City or any other person, and all such obligations shall be subordinate in priority, in right to payment, and in all other respects to the obligations, liens, rights (including, without limitation, the right to payment), and interests arising or created under any mortgage loan for the Project. Section 5. Notices. Notice required to be given under the terms of this Supplemental City Regulatory Agreement or any law applicable thereto must be either personally delivered or placed in a sealed envelope, postage prepaid, addressed to the person on whom it is to be served with return receipt requested, and deposited in the United States mail. Personal service shall be deemed complete upon delivery and service by mail shall be deemed complete upon receipt as reflected by the return receipt. The address to be used for any notice serviced by mail upon the parties shall be as follows, unless the parties are informed otherwise in writing: Page 3 TO DEVELOPER: Tustin Coventry Seniors, LP c/o Tustin Coventry Seniors, LLP Attention: Kasey Burke Administrative General Partner 1640 S. Sepulveda Blvd., Suite 425 Los Angeles, CA 90025 (310) 575-3543 TO CITY: City of Tustin 300 Centennial Way Tustin, CA 92780 Attention: Assistant City Manager (714) 573-3107 Section 6. Counterparts. This Supplemental City Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to an original. Section 7. Term. The term of this Supplemental City Regulatory Agreement shall remain in effect as long as the City Regulatory Agreement between the City and Developer remains in effect, as long as any multi-family housing revenue bonds issued for the project remain outstanding, or for the term of any Regulatory Agreement between CSCDA and the Developer for the Project, whichever is greater. IN WITNESS WHEREOF, the City and Developer have executed this Supplemental City Regulatory Agreement by duly authorized representative, all as of the date first written above. CITY OF TUSTIN: Dated: By: William A. Huston, City Manager APPROVED AS TO FORM By: Doug Holland, City Attorney Page 4 DEVELOPER: TUSTIN COVENTRY SENIORS, LP, a California limited partnership By: TUSTIN COVENTRY SENIORS, LLC, a California limited liability company Its: Administrative General Partner By: Kasey Burke Title: Manager By: Title: Page 5 ATTACHMENT 1 RESOLUTION NO. 10-33 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN APPROVING DESIGN REVIEW 09-024 AND CONDITIONAL USE PERMIT 09-024, AUTHORIZING THE DEVELOPMENT OF A 240-UNIT SENIOR APARTMENT RESIDENTIAL COMPLEX, AGE RESTRICTED TO PERSONS OF 55 YEARS OR OLDER, WITH A PARKING STANDARD OF 1.7 SPACES PER UNIT, INCLUDING 153 AFFORDABLE UNITS, RECREATION CENTER, AND ASSOCIATED INFRASTRUCTURE AND SITE IMPROVEMENTS ON LOT 265 OF TRACT 16581 WITHIN PLANNING AREA 4 AND PLANNING AREA 5 OF THE MCAS TUSTIN SPECIFIC PLAN, ALSO REFERRED TO AS COVENTRY COURT IN COLUMBUS SQUARE AT TUSTIN LEGACY The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That a proper application for Design Review 09-024 and Conditional Use Permit 09-024, Amendment to Tract Map 16581 and Amendment to Concept Plan 03-003 was submitted by Lennar Corporation for the development of a 240-unit senior apartment housing project for rental tenure on a nine (9) acre site within Columbus Square within Planning Area 4 and Planning Area 5 of the MCAS-Tustin Specific Plan (Lot 265 of Tract 16581); B. That the site is located in the MCAS Tustin Specific Plan land use designation of the General Plan, which provides for residential development, and on Reuse Disposition Parcels 23 and 24 in Planning Areas 4 and 5 of the MCAS Tustin Specific Plan, which is designated for low and medium density residential; C. That a public hearing on the matter was duly called, noticed, and held for said application on December 8, 2009, by the Planning Commission; D. That at the December 8, 2009, meeting, the Planning Commission continued the project to the January 26, 2010, meeting to allow the project proponent to meet directly with the Community Association and any interested members of the community; E. That on January 26, 2010, the Planning Commission held a continued public hearing on the item and continued the item for sixty (60) days to allow staff, the applicant, and residents to conduct further research and report back on subjects raised at the hearing; Resolution No. 10-33 Page 1 of 26 Community Development Department, 5. The location, size, architectural features and general appearance of the proposed development are consistent with and will not impair the orderly and harmonious development of the area, the present or future development therein, the occupancy thereof, or the community as a whole. In making such findings, the Commission has considered at least the following items: a) Height, bulk, and area of buildings. b) Setbacks and site planning. c) Exterior materials and colors. d) Type and pitch of roofs. e) Size and spacing of windows, doors, and other openings. f) Towers, chimneys, roof structures, flagpoles, radio and television antennae. g) Location, height, and standards of exterior illumination. h) Landscaping, parking area design, and traffic circulation. i) Location and appearance of equipment located outside an enclosed structure. j) Location and method of refuse storage. k) Physical relationship of proposed structures to existing structures in the neighborhood. I) Appearance and design relationship of proposed structures to existing structures and possible future stnactures in the neighborhood and public thoroughfares. m) Proposed signage. n) Development Guidelines and criteria as adopted by the City Council. U. That pursuant to Tustin City Code Section 9291, the proposed senior apartment housing development with a parking ratio of 1.7 spaces per unit will not be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood, nor be injurious or detrimental to the property and improvements in the neighborhood of the subject property, or to the general welfare of the City of Tustin, in that: 1. Multi-family residential apartment housing is a permitted use in Planning Areas 4 and 5 of the MCAS Tustin Specific Plan, subject to approval of a conditional use permit; 2. The 240-unit senior apartment project is in conformance with the MCAS Specific Plan, including the limitation of rental units to a maximum 25 percent of the total number of units permitted in the Tustin portion of the Speck Plan; 3. The change from ownership to rental tenure will not result in a change in the design, operational characteristics, or intent of the project as previously Resolution No. 10-33 Page 4 of 26 considered and approved; 4. The aging and elderly are identified in the Housing Element of the City's General Plan as a growing special needs population in the City. The Housing Element identified Coventry Court as an implementation project to meet the City's housing projections and goals; 5. The project as proposed remains an age-restricted senior project and will benefit the target population as originally intended; 6. The 153 affordable housing units will be provided just as originally approved in terms of number, location, size, bedroom counts and income level, in conformance with the approved Housing Agreement and Affordable Housing Plan for Columbus Square; 7. Approval of the project for rental tenure will allow for the project to progress and deliver the affordable housing units to the market in a more timely manner and in conformance with the requirement for reasonable proportionality in development of market-rate and affordable housing units; 8. A parking demand analysis utilizing a parking ratio of 1.7 spaces per unit was previously approved for senior condominiums as CUP 05-037 by Resolution No. 4014, has been re-reviewed by the City's Traffic Engineer in conjunction with the subject project, and has been determined to be satisfactory, adequate and applicable to the project as proposed for senior apartments. V. That the multiple family senior housing complex for ownership tenure was part of the subdivision of 105.5 acres and development of 1,075 residential units at the Columbus Square site, including was approved under Concept Plan (CP) 03-003 by Planning Commission Resolution No. 3951, Tentative Tract Map (TTM) 16581 by City Council Resolution No. 05-40, and Final Tract Map (FTM) 16581 by City Council Resolution No. 06-17. The project proposed as rental units necessitates text amendments to CP 03-003, and TTM 16581 and FTM 16581 to ensure consistency of the approved housing tenure type from ownership to rental senior units, and that the necessary amendments are determined to be consistent with the intent of the approved Concept Plan and Tract Map; W. That should the proposed rental tenure not be carried out or instituted, the project approval shall remain valid for the development of 240 age-restricted senior condominium units, as was originally intended and approved for the project site; X. That this project is determined to be exempt from additional CEQA review pursuant to California Government Code Section 65457, which provides that once the EIR has been certified and the specific plan adopted, any residential Resolution No. 10-33 Page 5 of 26 development project that is undertaken to implement and is consistent with the specific plan is exempt from additional CEQA review. On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report for the Reuse and Disposal of MCAS Tustin (FEIS/EIR), which evaluated the environmental impacts of the reuse and disposal of MCAS-Tustin, in conjunction with the adoption of a Speck Plan. On February 3, 2003, the Tustin City Council adopted Ordinance No. 1257, which adopted the MCAS Tustin Specific Plan. On April 3, 2006, the City Council adopted Resolution No. 06-43 approving an Addendum to the FEIS/EIR for the Disposal and Reuse of MCAS Tustin. The FEIS/EIR and its Addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. The development of Coventry Court at Columbus Square is a residential development project that is being undertaken to implement and is consistent with the MCAS Tustin Specific Plan, as amended. No substantial changes in the project or circumstances under which it is being undertaken have occurred and no new information which was not known at the time the EIR was certified (or amended) has become available. Therefore, the proposed project is exempt from additional environmental review under CEQA. II. The City Council hereby approves Design Review 09-024 and Conditional Use Permit 09-024 for development of a 240-unit senior housing project age restricted for persons of 55 years or older for rental tenure utilizing a parking standard of 1.7 spaces per unit on Lot 265 of Tract 16581, including 153 affordable housing units, recreation center, and associated infrastructure and site improvements, subject to the recommended conditions contained in Exhibit A attached hereto. PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 7cn day of July, 2010. PAMELA STOKER City Clerk Resolution No. 10-33 Page 6 of 26 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 10-33 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 7th day of July, 2010, by the following vote: COUNCILMEMBER AYES: Amante Nielsen, Davert, Palmer (4) COUNCILMEMBER NOES: Gavello (1) COUNCILMEMBER ABSTAINED: None (~) COUNCILMEMBER ABSENT: None (D) ~. P ELA STO E City Clerk Resolution No. 10-33 Page 7 of 26 EXHIBIT A RESOLUTION NO. 10-33 DESIGN REVIEW 09-024 AND CONDITIONAL USE PERMIT 09-024 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed project shall conform with the Tustin City Code and Tustin guidelines and standards and be consistent with submitted plans for the project date stamped April 20, 2010, on file with the Community Development Department, except as herein modified, or as mod~ed by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve minor modifications to plans during plan check if such modifications are consistent with the provisions of the Tustin City Code, and other applicable codes. (1) 1.2 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with as specified or prior to the issuance of any building permits for the project, subject to review and approval by the Community Development Department. (1) 1.3 The subject project approval shall become null and void unless permits for the proposed project are issued and substantial construction is underway within twelve (12) months. All time extensions may be considered if a written request is received within thirty (30) days prior to expiration date. Should this approval become null and void, the obligation that existed (prior to this approval) to develop 240 age-restricted senior condominium units, as was originally intended and approved for the project site, shall continue to apply. Associated conditions shall be applied accordingly. (1) 1.4 Approval of Design Review 09-024,. Conditional Use Permit 09-024, Amendment to Tract Map 16581, and Amendment to Concept Plan 03-003 is contingent upon the applicant returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES ~ (3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY (4) DESIGN REVIEW *** EXCEPTION Resolution No. 10-33 Page 8 of 26 (1) 1.5 As a condition of approval of Design Review 09-024, Conditional Use Permit 09-024, Amendment to Tract Map 16581, and Amendment to Concept Plan 03-003, the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of or conditions imposed by the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.6 Any violation of any of the conditions imposed is subject to issuance of an Administrative Citation pursuant to Tustin City Code Section 1162(a). The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorney fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. (1) 1.7 The project approval is for 240 senior housing units, age restricted to persons of 55 years or older, for rental tenure, utilizing a parking ratio of 1.7 spaces per unit, including 153 affordable units, recreation center, and infrastructure and site improvements. Any changes to the project description, scope, or Affordable Housing Plan shall require further review and approval by the City. ("**) 1.8 The subject project approval requires the approval and execution of an amendment to the Housing Agreement and Affordable Housing Plan by the City Council in form and content approved by the Redevelopment Agency, City Attorney, and City's Special Real Estate Counsel. The Amendment shall be approved and executed by all current parties to the Housing Agreement and all successors and assigns of each of the parties. Should amendments to the Housing Agreement and Affordable Housing Plan not be approved by the City Council, the subject approval shall become null and void. (**") 1.9 All applicable conditions of City Council Resolution Nos. 05-40 approving TTM 16581, density bonus, and affordable housing transfer and 06-17 approving FTM 16581, and Planning Commission Resolution No. 3953 approving DR 04-006 for the Columbus Square community shall remain applicable to Design Review 09-024, Conditional Use Permit 09-024, Amendment to Tract Map 16581, and Amendment to Concept Plan 03-003 as may be modified herein or in Resolution Nos. 10-34 and/or 10-35. Resolution No. 10-33 Page 9 of 26 ('`**) 1.10 The senior apartment development shall be developed strictly as a senior complex with parking concession of 1.7 parking ratio per unit. Accordingly the senior apartment development shall be restricted to seniors of age 55 years or older for the life of the project. An age restricted covenant running with the land shall be reviewed and approved by the Community Development Director and shall be recorded by the applicant prior to issuance of a building permit. PROJECT APPROVALS (''**) 2.1 The applicant shall be responsible for drafting and entering into a perpetual agreement with the Columbus Square Community Association (CSMCA). The Agreement shall be recorded and shall run with the land pursuant to Section 845 and 1468 of the Civil Code to: (1) create non- exclusive easements for access, ingress, egress, parking over the CSMCA property; (2) fairly allocated costs associated with operating, managing; and maintenance of the CSMCA property, and (3) fulfill the following minimum terms: a. The Coventry project, an age-restricted apartment project with "affordable" units, shall not be annexed to the CSMCA. The Coventry property owner will not be a member of the CSMCA. No assessments shall be levied by the Master Association against the Coventry property and votes in the Master Association shall not be exercised by the Coventry Owner. b. The Coventry Owner, however, will pay to the CSMCA an amount equal to one assessment unit for each rental unit. Assessments for each rental unit will commence upon the first occupancy of the rental unit and will continue regardless of occupancy thereafter. c. The Coventry renters may use the CSMCA facilities on the same basis as all members of the CSMCA. d. All successors and assigns of the Coventry property shall be bound by this Agreement. e. The Coventry Owner/Management will ensure that the Parking Management Plan, approved by the City of Tustin Community Development Department will be enforced and that surrounding properties will not be negatively impacted by parking behavior of Coventry tenants or guests. f. The Coventry property will provide 409 parking spaces of which 200 spaces are enclosed garages, 40 spaces are carports, 130 open parking spaces, 10 ADA accessible parking spaces and 1 ADA van Resolution No. 10-33 Page 10 of 26 accessible space on-site while it also incorporates 28 parallel street parking spaces along Cambridge Street and Charleston Street immediately adjacent to the property. Of these 409 parking spaces, 36 shall be set aside as guest spaces, and six (6) spaces shall be set aside for employees. g. The Coventry Owner will not permit residents to own and maintain any more than 367 vehicles on-site at any given time. h. The agreement shall be subject to review and approval by the City, and the provisions required by these Conditions of Approval may not be amended without the approval of the City. (***) 2.2 Should the project as proposed for rental tenure not be instituted or carried out, the subject approval shall be considered valid for ownership tenure (240 condominium units) as originally intended and approved for the project site. However, notwithstanding such an obligation to develop condominiums for ownership tenure, no condominium unit shall be sold except with the approval of the City. DESIGN REVIEW (4) 3.1 The applicant shall clearly demonstrate compliance with all applicable development standards of the MCAS Tustin Specific Plan and the Tustin City Code on construction drawings at the time of plan check submittal. (4) 3.2 Architecturally compatible roof screening shall be incorporated into the building design similar and comparable to the roof screens that have been provided at the constructed model building on site. Details of proposed roof screens shall be provided in the construction drawings at the time of plan check submittal. (4) 3.3 Production plans shall incorporate additional chimneys as necessary to be consistent with the approved conceptual roof plans. GRADING PLAN SUBMITTAL (1) 4.1 Four (4) sets of final grading plans, including a site plan, and consistent with the landscaping plans, as prepared by a registered civil engineer, shall be submitted and shall include the following: A. Technical details and plans for ail utility installations including telephone, gas, water, and electricity. B. Three (3) copies of a precise soils report provided by a civil engineer and less than one (1) year old. Expanded information regarding the levels of hydrocarbons and ground water Resolution No. 10-33 Page 11 of 26 contamination found on-site shall be provided in the soil report. All pavement "R" values shall be in accordance with applicable City of Tustin standards. C. Information demonstrating that all site drainage shall be handled on-site and shall not be permitted to drain onto adjacent properties. D. Information demonstrating that drainage, vegetation, circulation, street sections, curbs, gutters, sidewalks, and storm drains shall comply with the City of Tustin`s "Construction Standards for Private Streets, Storm Drain and On-Site Private Improvements," revised April 1989. E. Two (2) copies of a hydrology report. F. Information demonstrating that vehicle parking, primary entrance to the building, primary paths of travel, sanitary facilities, drinking fountain, and public telephones for the recreation building shall be accessible to persons with disabilities. G. Building and landscape setback dimensions and dimensions for all drive aisles, back up areas, each covered parking stall, and open parking stalls. (1) 4.2 The engineer of record must submit a final compaction report to the Building Division for review and approval prior to the issuance of a building permit. (1} 4.3 The engineer of record must submit a pad certification to the Building Division for review and approval prior to the issuance of a building permit. (1) 4.4 Prior to issuance of a grading permit, the applicant shall be required to provide a performance bond to assure grading work is completed in accordance with approved plans. The engineer's estimated cost shall be submitted to the Building Official for determination of the bond amount. (1) 4.5 A note shall be provided on the final plans indicating that a six (6) foot high chain link fence shall be installed around the site prior to grading. A nylon fabric or mesh shall be attached to the temporary construction fencing. Gated entrances shall be permitted along the perimeter of the site for construction vehicles. BUILDING PLAN SUBMITTAL (3) 5.1 At the time of building permit application, the plans shall comply with the latest applicable codes, City Ordinances, State, Federal laws, and regulations as adopted by the City Council of the City of Tustin. Resolution No. 10-33 Page 12 of 26 (3) 5.2 Building plan check submittal shall include the following: ~ Seven (7) sets of construction plans, including drawings for mechanical, plumbing, and electrical. • Structural calculations, two (2) copies. • Title 24 energy calculations, two (2) copies. • Elevations that include all proposed dimensions, materials, colors, finishes, and partial outlines of adjacent buildings on-site and off-site where applicable • Details for the proposed windows and doors. • Roofing material shall be fire rated class "B" or better. • The location of any utility vents or other equipment shall be provided on the roof plan. • Details of all proposed lighting fixtures and a photometric study showing the location and anticipated pattern of light distribution of all proposed fixtures. All new light fixtures shall be consistent with the architecture of the building. All exterior lighting shall be designed and arranged as not to direct light or glare onto adjacent properties, including the adjacent streets. Wall- mounted fixtures shall be directed at a 90-degree angle directly toward the ground. All lighting shall be developed to provide a minimum of one (1) foot-candle of light coverage, in accordance with the City's Security Ordinance. • A note shall be provided on the plans that "All parking areas shall be illuminated with a minimum of one (1) foot-candle of light, and lighting shall not produce light, glare, or have a negative impact on adjacent properties." • Cross-section details showing the installation of the proposed rooftop equipment. Rooftop equipment shall be installed and maintained so as not to be visible from the public right-of-way. An elevation showing rooftop equipment installation related to the height of the parapet and proposed equipment must be identified at plan check submittal and all equipment must be six (6) inches below the top of the parapet, subject to the approval of the Community Development Director. • Noise attenuation features as required under the "Noise" section of this Resolution. • Note on plans that no field changes shall be made without prior approval from the Building Official and architect or engineer of record. (1) 5.3 Sufficiently sized concrete pad in front of mailbox structures shall be provided to allow mail carrier to place mail and homeowner to retrieve mail without standing in the street or landscape area. (3) 5.4 Vehicle parking, primary entrance to the pool and recreational building, the primary path of travel, sanitary facilities, drinking fountains, and public telephones shall be accessible to persons with disabilities as per State of Resolution No. 10-33 Page 13 of 26 California Accessibility Standards (Title 24). Parking for disabled persons shall be provided with an additional five (5) foot loading area with striping and ramp; disabled persons shall be able to park and access the building without passing behind another car. At least one (1) accessible space shall be van accessible served by a minimum 96 inch wide loading area. (3) 5.5 The clear and unobstructed interior garage dimensions for each parking space shall be a minimum of ten (10) feet in width and twenty (20) feet in length and shall be shown on the plans. (4) 5.6 Information to ensure compliance with requirements of the Orange County Fire Authority shall be submitted including fire flow and installation of fire hydrants subject to approval of the City of Tustin Public Works and/or Irvine Ranch Water District. (1) 5.7 If determined feasible by the Building Official, the applicant shall implement one or more of the following control measures, if not already required by the SCAQMD under Rule 403 during construction as follows: a) Apply water twice daily, or chemical soil stabilizers according to manufacturers' specifications, to all unpaved parking or staging areas or unpaved road surfaces at all actively disturbed sites. b) Develop a construction traffic management plan that includes, but is not limited to, rerouting construction trucks off congested streets, consolidating truck deliveries, and providing dedicated turn lanes for movement of construction trucks and equipment on-site and off-site. c) Use electricity from power poles rather than temporary diesel or gasoline-powered generators. d) Reduce traffic speeds on all unpaved roads to 15 mph or less. e) Pave construction roads that have a traffic volume of more than 50 daily trips by construction equipment or 150 total daily trips for all vehicles. f) Apply approved chemical soil stabilizers according to manufacturers' specifications to all inactive construction areas (previously graded areas inactive for four days or more). g) Enclose, cover, water twice daily, or apply approved soil binders according to manufacturers' specifications to exposed piles of gravel, sand, or dirt. h) Cover all trucks hauling dirt, sand, soil, or other loose materials, and maintain at least two (2) feet of freeboard (i.e., minimum vertical distance between top of the load and top of the trailer). Resolution No. 10-33 Page 14 of 26 i) Sweep streets at the end of the day if visible soil material is carried over to adjacent roads (use water sweepers with reclaimed water when feasible). j) Install wheel washers where vehicles enter and exit unpaved roads onto paved roads or wash off trucks and any equipment leaving the site each trip. k) Use low VOC architectural coatings for all interior and exterior painting operations. PUBLIC WORKS DEPARTMENT (1) 6.1 A separate 24" x 36" street improvement plan, as prepared by a California Registered Civil Engineer, shall be required for all construction within the public right-of-way along Edinger Avenue and West Connector Road. Construction and/or replacement of any missing or damaged public improvements will be required adjacent to this development. Said plan shall include, but not be limited to the following: a) b) c) d) e) fl g) h) Curb and Gutter Sidewalk Drive aprons Catch basin/storm drain laterals/ connection to existing storm drain system Domestic water facilities Reclaimed water facilities Sanitary sewer facilities Underground utility connections In addition, a 24" x 36" reproducible construction area traffic control plan, as prepared by a California Registered Traffic Engineer or Civil Engineer experienced in this type of plan preparation may be required. (1) 6.2 Preparation of plans for and construction of: a. All sanitary sewer facilities shall be submitted as required by the City Engineer and Irvine Ranch Water District. b. A domestic water system shall be designed and installed to the standards of the Irvine Ranch Water District. The adequacy and reliability of the water system design and the distribution of fire hydrants shall be evaluated. The water distribution system and appurtenances shall also conform to the applicable laws and adopted regulations enforced by the Orange County Health Department. Any required reclaimed water system shall meet the standards as required by the Irvine Ranch Water District. Resolution No. 1 Q-33 Page 15 of 26 (1) 6.3 The applicant shall comply and meet all conditions of Tract Map 16581. (1) 6.4 Prior to any work in the public right-of-way, an Encroachment Permit shall be obtained from and applicable fees paid to the Public Works Department. (1) 6.5 Any damage done to existing street improvements and utilities shall be repaired before issuance of a certificate of Occupancy. (1) 6.6 A complete hydrology study and hydraulic calculations shall be submitted for review and approval by the City. (1) 6.7 In addition to the normal full size map and plan submittal process, all final maps and development plans including, but not limited to: tract maps, parcel maps, right-of-way maps, records of survey, public works improvements, private infrastructure improvements, final grading plans, and site plans are also required to be submitted to the Public Works Department/Engineering Division in computer aided design and drafting (CADD) format. The standard file format is AutoCAD Release 2007, or latest version, having the extension "DWG." All layering and linotype conventions are AutoCAD-based (latest version available upon request from the Public Works Department). The CADD files shall be submitted to the City at the time the plans are approved and updated CADD files reflecting "as built" conditions shall be submitted once all construction has been completed. No project bonds will be released until acceptable "as built" CADD files have been submitted to the City. (1) 6.8 Facility Solid Waste Collection and Recycling Plan a. Prior to approval of a site plan or the issuance of a building permit, whichever occurs first, a Facility Solid Waste Collection and Recycling Plan and a site plan covering the planned use o the facility shall be submitted utilizing the applicable from and approved by the City of Tustin Public Works Department. b. The applicant, property owner, and/or tenant(s) are required to participate in the City's recycling program. c. Waste and Recycling collection facilities shall be equally and readily accessible by the property owner(s) or tenant(s). d. Waste and Recycling collection facilities must be placed in a location that can be easily and safely accessed by the solid waste hauler which utilizing either front loader or side loading equipment. Resolution No. 10-33 Page 16 of 26 e. Adequate collection capability shall be provided to ensure that collection frequency shall not exceed four times per week for commercial customers. f. All trash enclosures shall utilize the City's standard enclosure designed to accommodate at least two (2) four cubic yard bins, with at least one (1) bin reserved for recyclable materials. g. Prior to the issuance of a building permit, the Public Works Department shall review and approve the number of trash enclosures required to service the project site. (***) 6.9 Intentionally deleted since this condition is no longer applicable. WATER QUALITY (1) 7.1 This development shall comply with all applicable provisions of the City of Tustin Water Quality Ordinance and all Federal, State and Regional Water Quality Control Board rules and regulations. (1) 7.2 An updated Water Quality Management Plan (WQMP) shall be submitted and approved prior to issuance of grading permit. The WQMP shall be r prepared using the City's WQMP Guidelines. The applicant shall submit a ~ deposit of $2,700.00 for the estimated cost for reviewing WQMP to the City. ~:_. The actual costs will be deducted from the deposit, and the applicant shall be responsible for any additional review cost that exceeded the deposit prior to issuance of grading permits. Any unused portion of the deposit will be refunded to the applicant. PARKING (**") 8.1 The approved parking ratio of 1.7 parking spaces per unit is exclusive to the senior community and is contingent on the property remaining a senior housing complex for persons of 55 years and older. The project shall provide a minimum of 409 parking spaces including a minimum of 200 one-car garage spaces and 40 carports, 130 open guest parking stalls, 28 parallel street parking, 10 ADA accessible parking spaces and 1 ADA van accessible parking space. (**") 8.2 The applicant shall submit a Parking Management Plan for review and approval by the Community Development Department prior to issuance of any building permit. The Parking Management Plan shall include, but not be limited to, the following: • Of the 409 parking spaces, thirty-six (36) spaces (0.15 space per unit as recommended by the ULI Shared Parking Study) shall be set aside for guests, six (6) spaces shall be set aside for employees and a maximum of 367 spaces shall be available for residents. In any event, Resolution No. 10-33 Page 17 of 26 the owner and/or operator of the facility shall not permit residents to own and maintain any more than a total of 367 vehicles on-site at any given time. These restrictions shall be incorporated in any lease and/or rental agreement. The owner and/or operator of the facility shall ensure that required parking is provided to tenants, employees, and visitors such that off- site or surrounding properties parking are not negatively impacted. This could be accomplished using a decal systems, on-site security and/or manager parking enforcement, etc. The owner and/or operator shall be responsible for monitoring and enforcing all parking and traffic regulations on the project site. Any revision to the Parking Management Plan shall be reviewed and approved by the Community Development Department. (***) 8.3 If in the future the City determines that parking or traffic problems exist on the site or in the vicinity, the Community Development Director may require that the property owner prepare an analysis and bear all associated costs. If the study indicates that there is a parking or traffic impact, the applicant/property owner shall provide interim and permanent mitigation measures to alleviate the problem. CONSTRUCTION PHASING AND MODEL UNIT PLAN (1) 9.1 The developer shall close and convert the model units (constructed units) to occupancy within 90 days from the last unit rented. (***) 9.2 Within forty-five (45) calendar days of the City's approval of the application, Tustin Coventry, LLC, and/or Meta Housing shall post cash, or a bond, equal to five hundred thousand dollars ($500,000) payable to the City to afford assurance to the City that the affordable units will be built. If the cash or bond is not delivered to the City within 45 calendar days, the approvals contained in Resolution No. 10-33 shall become null and void. The $500,000 security shall be returned or exonerated upon completion of all the affordable units. In the event construction of the affordable units has not commenced within the one-year period, the cash (or bond equivalent) shall be forfeited and shall be for the sole benefit of the City. Notwithstanding the provisions contained herein, should the development not proceed, the affordable housing obligation remains and shall be provided as required in the approved Affordable Housing Plan and Housing Agreement. Neither these approvals nor these conditions shall limit the remedies available to the City in the event the Coventry Court development is not completed, nor shall the enforceability of the approved phasing plan be limited or otherwise affected by this approval or these conditions of approval. Resolution No. 10-33 Page 18 of 26 LAN DSCAPI NG/HARDSCAPE (1) 10.1 Submit at plan check complete detailed landscaping and irrigation plans for all landscaping areas, including the model complex, consistent with adopted City of Tustin Landscaping requirements. The plans shall include the following: ^ Include a summary table identifying plan materials. The plant table shall list botanical and common names, sizes, spacing, location, and quantity of the plant materials proposed. ^ Show planting and berming details, soil preparation, staking, etc. The irrigation plan shall show location and control of backflow prevention devices, pipe size, sprinkler type, spacing, and coverage. Details for all equipment must be provided. ^ Show all property lines on the landscaping and irrigation plans, public right-of-way areas, sidewalk widths, parkway areas, and wall locations. ^ The Community Development Department may request minor substitutions of plant materials or request additional sizing or quantity of materials during plan check. ^ Add a note that coverage of landscaping and irrigation materials is subject to inspection at project completion by the Community Development Department. ^ Turf is unacceptable for grades over 25 percent. A combination of planting materials shall be used. On large areas, ground cover alone is not acceptable. ^ Shrubs shall be a minimum of live (5) gallon size and shall be placed a maximum of five (5) feet on center. ^ Fences, wall, and equipment areas shall be screened with walls, vines, and/or trees. ^ All plant materials shall be installed in a healthy vigorous condition typical to the species and shall be maintained in a neat and healthy condition. Maintenance includes, but is not limited to, trimming, Resolution No. 10-33 Page 19 of 26 weeding, removal of litter, fertilizing, regular watering, and replacement of diseased or dead plants. Landscape adjacent to the right-of-way shall be in compliance with the requirements of MCAS Tustin Specific Plan. Perimeter walls should be treated with vines to relieve large expanse walls with greenery and color. Vines shall be informally grouped and installed with training devices. (4) 10.2 On-site walls and fences shall be noted on the plans with specific materials, colors, and decorative treatments. Interior wall/fences shall be made of durable materials subject to review and approval of the Community Development Department. RENTER NOTIFICATION (1) 11.1 The applicant shall submit to the Community Development Department for review and approval a renter notification document that includes the notifications listed below. The notification document shall be signed by each renter(s) prior to occupancy, and a copy of the signed notification shall be provided to the Community Development Department prior to final inspection and/or issuance of each Certificate of Occupancy. A. A notice for roadway, trail, and train noise that may impact the project, including roadway noise associated with, Edinger Avenue, North Loop Road, Kensington Park Drive, and train noise associated with the rail corridor north of the project. The notice shall indicate the current number of trains per day (59) and the estimated to increase to over 100 trains on a 24 hour basis by the year 2020. The notice shall indicate that additional building upgrades may be necessary for noise attenuation. This determination is to be made as architectural drawings become available and/or where field-testing determines inadequate noise insulation. 6. A notice, to be reviewed by the City of Tustin and the Tustin Unified School District, regarding the location of existing and proposed elementary, middle, and high schools which will serve the subdivision (text and map) and advice to renters that proposed school sites may never be constructed. C. A notice regarding units that are adjacent to aboveground utilities or structures (such as light standards and fire hydrants) identifying the type of structure and their locations. D. A notice indicating that any use of a residence for a business shall be Resolution No. 10-33 Page 20 of 26 ~ subject to the City's Home Occupation Ordinance and may require zoning clearance and a business license. E. A notice indicating that public use of a minimum one (1) acre or more portion of the park site, to be maintained by the CSMCA homeowners association, will be allowed and noting public ingress and egress through the subdivision will be provided for access to the park. F. A notice explaining the easements, facilities, amenities, and dedications that will be provided on lettered lots and indicating all on- site streets, alleys, paseos, and common areas are to be maintained by the CSMCA. The notice shall notify the renter that renters are not members of the CSMCA, and will not vote in CSMCA matters. The notice shall also identify any easements, facilities, amenities, and dedications that will be maintained by the owner or operator of the apartment complex. G. A notice, to be approved by the City Attorney, indicating that neither the site, nor the project nor any part thereof any street or sidewalk, alleyway, or paseo thereon shall be privately gated, provided however that any swimming pool and/or spa facility within the common area and any indoor common area improvements, including any clubhouse and bathrooms, may be gated or locked and made available solely to members of the CSMCA, to the residents of the project, and to their - guests. H. A notice indicating that surrounding properties may be developed in accordance with City ordinances in a manner which may partially or totally obstruct views from the renter's unit and that the City of Tustin makes no claim, warranty, or guarantee that views from any unit will be preserved as development of surrounding properties occurs. A notice explaining that 153 affordable housing units will be dispersed throughout the project site. These units will remain affordable for a period of fifty-five (55) years or longer. J. A notice explaining the phasing of construction within the project site and surrounding subdivison and that activity may be disruptive. K. A notice that the project is located adjacent to a future fire station site at the southwest corner of Edinger Avenue and Kensington Park Drive and that the station will be operating 24 hours a day. ORANGE COUNTY FIRE AUTHORITY Resolution No. 10-33 Page 21 of 26 (5) 12.1 Prior to the issuance of any grading, the applicant shalt submit a fire i -. hydrant location plan to the Fire Chief for review and approval. (5) 12.2 Prior to the issuance of a building permit, the applicant shall submit evidence of the on-site fire hydrant system to the Fire Chief and indicate whether it is public or private. If the system is private, it shall be reviewed and approved by the Fire Chief prior to building permit issuance, and the applicant shall make provisions for the repair and maintenance of the system in a manner meeting the approval of the Fire Chief. Please contact the OCFA at (714) 573-6100 or visit the OCFA website for a copy of the "Guidelines for Private Fire Hydrant and/or Sprinkler Underground Piping." (5) 12.3 Prior to the issuance of any certificate of occupancy, all fire hydrants shall have a blue reflective pavement marker indicating the hydrant location on the street as approved by the Fire Chief, and must be maintained in good condition by the property owner. Please contact the OCFA at (714) 573- 6100 or visit the OCFA website for a copy of the "Guideline for Installation of Blue Dot Hydrant Markers." (5) 12.4 Prior to the issuance of any grading, the applicant shall provide evidence of adequate fire flow. The "Orange County Fire Authority Water Availability for Fire Protection" form shall be signed by the applicable water district and submitted to the Fire Chief for approval. If sufficient water to meet fire flow requirements is not available an automatic fire extinguishing system may be required in each structure affected. (5) 12.5 Prior to the issuance of building permits, a note shall be placed on the plans stating that all residential structures (R-1 occupancies) and any structure exceeding 6,000 square feet (per amendment) shall be protected by an automatic fire sprinkler system in a manner meeting the approval of the Fire Chief. (5) 12.6 Prior to the issuance of a building permit, the applicant shall submit plans for any required automatic fire sprinkler system in any structure to the Fire Chief for review and approval. Please contact the OCFA at (714) 573- 6100 for additional information. (5) 12.7 Prior to the issuance of a certificate of occupancy, this system shall be operational in a manner meeting the approval of the Fire Chief. (5) 12.8 Prior to the issuance of any grading or building permits, the applicant shall obtain approval of the Fire Chief for all fire protection access roads to within 150 feet of all portions of the exterior of every structure on site. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for Emergency Access, or Bulletin Resolution No. 10-33 Page 22 of 26 l number 08-99, "Fire Department Access Requirements for A Single Family Residence." ~. (5) 12.9 Prior to the issuance of a precise grading permit or building permit, the applicant shall submit and obtain approval of the Fire Chief and City Staff of plans for all public or private access roads, streets and courts. The plans shall include plan and sectional views and indicate the grade and width of the access road measured flow-line to flow-line. When adead- end street exceeds 150 feet or when otherwise required, a clearly marked fire apparatus access turnaround must be provided and approved by the Fire Chief. Applicable CC&R'S or other approved documents shall contain provisions which prohibit obstructions such as speed bumps/humps, control gates or other modifications within said easement or access road unless prior approval of the Fire Chief is granted. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for Emergency Access." (5) 12.10 A note shall be placed on the fire protection access easement plan indicating that all street/road signs shall be designed and maintained to be either internally or externally illuminated in a manner meeting approval of the Fire Chief. (5) 12.11 Prior to the issuance of any grading or building permits, the applicant shall submit plans and obtain approval from the Fire Chief for fire lanes on required fire access roads less than 36 feet in width. The plans shall indicate the locations of red curbs and signage and include a detail of the proposed signage including the height, stroke and colors of the lettering and its contrasting background. Please contact the OCFA at (714) 573- 6100 or visit the OCFA website to obtain a copy of the "Guidelines for Emergency Access Roadways and Fire Lane Requirements," or Bulletin 06-99, "Fire Lane Requirements on Private & Public Streets Within Residential Developments." (5) 12.12 Prior to the issuance of any certificate of occupancy, the fire lanes shall be installed in accordance with the approved fire lane plan. The CC&R'S or other approved documents shall contain a fire lane map, provisions prohibiting parking in the fire lanes, and an enforcement method. (5) 12.13 Prior to the issuance of any grading permits, the applicant shall obtain the approval from the Fire Chief for the construction of any gate across required fire department access roads. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for Design and Installation of Emergency Access Gates and Barriers." (5) 12.14 Prior to the issuance of a building permit for combustible construction, the builder shall submit a letter on company letterhead stating that water for Resolution No. 10-33 Page 23 of 26 fire-fighting purposes and all-weather fire protection access roads shall be in place and operational before any combustible material is placed on site. Building permits will not be issued without OCFA approval obtained as a result of an on-site inspection. Please contact the OCFA at (714) 573- 6100 to obtain a copy of the standard combustible construction letter. (5) 12.15 Prior to the issuance of a building permit, the applicant shall submit architectural plans for the review and approval of the Fire Chief if required per the "Orange County Fire Authority Plan Submittal Criteria Form." Please contact the OCFA at (714) 573-6100 for a copy of the Site/Architectural Notes to be placed on the plans prior to submittal. (5) 12.16 Prior to the issuance of a building permit, plans for the fire alarm system shall be submitted to the Fire Chief for review and approval. Please contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guideline for New and Existing Fire Alarm Systems." (5) 12.17 This system shall be operational prior to the issuance of a certificate of occupancy. NOISE (1) 13.1 Noise attenuation measures as recommended by the noise analysis shall be included with the construction drawings for plan check, which ensure a minimum outdoor-indoor transmission class (OITC) of 37. The interior and exterior noise levels (including balconies of six feet in width) shall comply ~ with City of Tustin noise requirements. (1) 13.2 In accordance with the noise analysis, all units are required to include air conditioning units or fresh air intake systems to achieve the minimum interior noise level standards shall have these units installed prior to issuance of a Certificate of Occupancy. Prior to final inspection and issuance of certificates of use and occupancy, the developer shall provide an independent noise analysis verifying that interior noise levels comply with Title 25 and City noise requirements. (1) 13.3 The perimeter sound walls are included as part of the master wall plans for Columbus Square currently under review. PUBLIC SAFETY (4) 14.1 Required lighting shall be installed so as not to be in conflict with landscaping and possible reduced lighting output. Evidence of such shall be shown on lighting and landscape plans at the time of plan check submittal. Resolution No. 10-33 Page 24 of 26 ENVIRONMENTAL (1) 15.1 Additional measures related to development of this project as noted in the adopted EIS/EIR including, but not limited to the following: A. Prior to issuance of a grading permit, the developer shall retain a County-certified archaeologist. If buried resources are found during grading within the reuse plan area, a qualified archaeologist would need to assess the site significance and pertorm the appropriate mitigation. The Native American viewpoint shall be considered during this process. This could include testing or data recovery. Native American consultation shall also be initiated during this process. B. The developer shall comply with the requirements established in a Palentological Resource Management Plan (PRMP) prepared for the site, which details the methods to be used for surveillance of construction grading, assessing finds, and actions to be taken in the event that unique paleontological resources are found. C. Prior to the issuance of a grading permit, the applicant shall provide written evidence to the Community Development Department that a County-certified paleontologist has been retained to conduct salvage excavation of unique paleontological resources if they are found. D. Prior to issuance of any permit, the developer shall provide traffic operations and control plans that would minimize the traffic impacts of proposed construction activity. The plans shall address roadway and lane closures, truck hours and routes, and notification procedures for planned short-term or interim changes in traffic patterns. Such plans shall minimize anticipated delays at major intersections. Prior to approval, the City of Tustin or the City of Irvine, as applicable, shall review the proposed traffic control and operations plans with any affected jurisdiction. FEES (1)(5) 16.1 Prior to issuance of any building permits, payment shall be made of all applicable fees, including but not limited to, the following. Payment shall be required based upon those rates in effect at the time of payment and are subject to change. a. Building plan check and permit fees to the Community Development Department based on the most current schedule at the time of permit issuance. Resolution No. 10-33 Page 25 of 26 b. Engineering plan check and permit fees to the Public Works Department based on the most current schedule at the time of permit issuance. c. Orange County Fire Authority plan check and inspection fees to the Community Development Department based upon the most current schedule at the time of permit issuance. d. Major Thoroughfare and Bridge Fees to the Tustin Public Works Department based on the most current schedule at the time of permit issuance. e. Transportation System Improvement Program (TSIP), Benefit Area "B" fees in the amount of $3.31 per square foot of new or added gross square floor area of construction or improvements to the Community Development Department. f. Water and sewer connection fees to the Irvine Ranch Water District. g. New development tax in the amount of $350.00 per unit, plus $100.00 per bedroom over one (1) bedroom in each unit. h. School facilities fee in the amount as required by Tustin Unified School District. (1) i. Other applicable parkland in-lieu fees and Tustin Legacy Backbone Infrastructure Program fees as required by Resolution No. 05-40. 16.2 Within forty-eight (48) hours of final approval of the project, the applicant shall deliver to the Community Development Department, a CASHIER'S CHECK payable to the County Clerk in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period that applicant has not delivered to the Community Development Department the above-noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. Resolution No. 10-33 Page 26 of 26 ATTACHMENT 2 RESOLUTION NO. 10-34 A RESOLUTION OF THE CITY COUNCIL APPROVING AMENDMENT TO CONCEPT PLAN 03-003 TO REFLECT A CHANGE IN TENURE FROM OWNERSHIP TO RENTAL FOR THE PROPOSED 240-UNIT AGE-RESTRICTED SENIOR HOUSING COMPLEX ON LOT 265 OF TRACT 16581 (COVENTRY COURT IN COLUMBUS SQUARE AT TUSTIN LEGACY) The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That a proper application for Design Review 09-024 and Conditional Use Permit 09-024, Amendment to Resolution No. 05-40 which approved Tract Map 16581 and Amendment to Resolution No. 3951 which approved Concept Plan 03-003, was submitted by Lennar Corporation for the development of a 240-unit senior apartment housing project for rental tenure on a nine (9) acre site within Columbus Square within Planning Area 4 and Planning Area 5 of the MCAS-Tustin Specific Plan (Lot 265 of Tract 16581); B. That the site is located is located within Tract 16581 previously approved by City Council Resolution No. 05-40 in the MCAS Tustin Specific Plan land use designation of the General Plan, which provides for residential development, and on Reuse Disposition Parcels 23 and 24 in Planning Areas 4 and 5 of the MCAS Tustin Specific Plan, which is designated for low and medium density residential; C. That a public hearing on the matter was duly called, noticed, and held for said application on December 8, 2009, by the Planning Commission; D. That at the December 8, 2009, meeting, the Planning Commission continued the project to the January 26, 2010, meeting to allow the project proponent tv meet directly with the Community Association and any interested members of the community; E. That on January 26, 2010, the Planning Commission held a continued public hearing on the item and continued the item for sixty (60) days to allow staff, the applicant, and residents to conduct further research and report back on subject raised at the hearing; Resolution No. 10-34 Page 1 of 5 F. That on March 23, 2010, the Planning Commission conducted a second continued public hearing on the item and adopted Resolution No. 4134 recommending that the City Council deny CUP 09-024, Amendment to CP 03-003, and Amendment to Tract Map 16581 for the subject project for apartments or rental tenure, and approve DR 09-024, and CUP 09-024 as it relates to parking, authorizing the development of a 240-unit age- restricted senior residential condominium complex including 153 affordable units, recreation center, and associated infrastructure and site improvements on Lot 265 of Tract 16581; G. That a public hearing on the matter was duly called, noticed, and held for said application on April 20, 2010, by the City Council. H. That at the April 20, 2010, the City Council continued the item to a special meeting on July 7, 2010 at 5:00 p.m.; That on May 18, 2010, at Mayor Amante's suggestion the special meeting regarding Coventry Court was rescheduled from 5:00 p.m. on July 7, 2010 to 6:00 p.m. on July 7, 2010; That on February 14, 2005, the Planning Commission adopted Resolution No. 3951 approving Concept Plan 03-003 to subdivide 105.5 acres for the purpose of developing 1,077 residential units including 84 Single Family Detached (SFD), 181 Carriage Way SFD, 72 Multiple Family Attached (senior housing -for ownership tenure) for a total of 337 units at an average density of 8.62 du/acre in Planning Area 4 (Parcel 23) and 18 carriage way units, 552 Multiple Family Attached (MFR), 170 Multiple Family Attached (senior housing -for ownership tenure) for a total of 740 units at an Average density 17.53 du/acre for Planning Area 5 (Parcel 24) of the MCAS Tustin Specific Plan; K. That the submitted plans are consistent with the plans that were previously approved by the Planning Commission and Community Development Department except for tenure type which is proposed to change from ownership to rental; L. That the proposed project necessitates text amendments to Resolution 3951 which approved Concept Plan 03-003; M. That the amendment to Concept Plan 03-003 is in conformance with the Tustin Area General Plan and MCAS Tustin Specific Plan and approval of Concept Plan 03-003, subject to conditions contained in Resolution Nos. 10-33 and 10-35, would achieve the development concepts set forth by the MCAS Tustin Specific Plan, including: Resolution No. 10-34 Page 2 of 5 1. Ensuring the continuity and adequacy of all circulation systems, such as: roadways, access points, trails, pedestrian ways, and other infrastructure systems needed to serve the project; 2. Ensuring the continuity and design quality of architecture, landscape, and hardscape themes and treatments; 3. Providing urban design features as per Chapters 2 and 3 of the MCAS Tustin Specific Plan; 4. Ensuring conformity with the Non-Residential Land Use Trip Budget; and, 5. Ensuring compliance with all applicable provisions of the MCAS Tustin Specific Plan. The City Council hereby approves Amendment to Concept Plan 03-003 to reflect a change in tenure from ownership to rental for the proposed 240-unit age- restricted senior apartment housing project on a nine (9) acre site within Columbus Square within Planning Area 4 and Planning Area 5 of the MCAS- Tustin Specific Plan (Lot 265 of Tract 16581), subject to the conditions of approval attached hereto. PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 7tn day of July, 2010. PAMELA ST ER City Clerk Resolution No. 10-34 Page 3 of 5 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 10-34 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 7t" day of July, 2010, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: Amante, Nielsen, Davert, Palmer Gavella None None (4) (1) (o> (0) + ~-~ PAMELA ST KER City Clerk Resolution No. 10-34 Page 4 of 5 EXHIBIT A RESOLUTION NO. 10-34 AMENDMENT TO CONCEPT PLAN 03-003 CONDITIONS OF APPROVAL (1) 1.1 Concept Plan 03-003 is approved for development of 1,075 residential units in Planning Area 4 and Planning Area 5 as follows: Planning Area 4 Planning Area 5 (Parcel 23) (Parcel 24) 84 Single Family Detached (SFD) 18 Carriage Way units 181 Carriage Way SFD 552 Multiple Family Attached (MFR) 72 Multiple Family Attached (Senior 170 Multiple Family Attached Housing) (Senior Housing) Total: 337 units Total: 740 units Average density of 8.62 du/acre Average density 17.53 du/acre (***) 1.2 The amendment to the approved Concept Plan is subject to execution of the First Amendment to the Housing Agreement and Regulatory Agreement in conformance with the requirements of the density bonus application as approved by the City Council, Condition 1.9 and 1.10 of Planning Commission Resolution No. 10- 33, and Condition 2.2 of Resolution No. 10-35. (***) 1.3 Resolution No. 10-34 shall become null and void in the event that Resolution Nos. 10-33 approving Design Review 09-024 and Conditional Use Permit 09-024 and Resolution No. 10-35 approving Amendment to the Tract Map 16581 are not approved by the City Council. (""**) 1.4 Resolution No. 10-34 shall become null and void in the event that the subject project is not approved or instituted as a rental project. In such event, Concept Plan 03-003 shall remain unchanged and the original approval (Resolution No. 3951, which approved the subject senior units for ownership tenure), shall remain valid. (1) 1.5 Approval of Amendment to Concept Plan 03-003 shall be contingent upon all conditions of approval contained within Resolution Nos. 10-33 and 10-35. (***) 1.6 Intentionally deleted since this condition is no longer applicable. Resolution No. 10-34 Page 5 of 5 ATTACHMENT 3 RESOLUTION NO. 10-35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN APPROVING AMENDMENT TO RESOLUTION NOS. 05-40 AND 06-17, WHICH APPROVED TENTATIVE TRACT MAP AND FINAL TRACT MAP 16581 RESPECTIVELY, TO REFLECT A CHANGE IN TENURE FROM OWNERSHIP TO RENTAL FOR THE PROPOSED 240-UNIT AGE-RESTRICTED SENIOR HOUSING COMPLEX ON LOT 265 OF TRACT 16581 (COVENTRY COURT IN COLUMBUS SQUARE AT TUSTIN LEGACY) AND AUTHORIZING THE EXECUTION OF THE FIRST AMENDMENT TO THE HOUSING AGREEMENT FOR COLUMBUS SQUARE INCLUDING THE REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS FOR RENTAL UNITS. The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That a proper application for Design Review 09-024 and Conditional Use Permit 09-024, Amendment to Resolution No. 05-40, which approved Tract Map 16581, and Amendment to Resolution No. 3951, which approved Concept Plan 03-003, was submitted by Lennar Corporation for the development of a 240-unit senior apartment housing project for rental tenure on a nine (9) acre site within Columbus Square within Planning Area 4 and Planning Area 5 of the MCAS Tustin Specific Plan (Lot 265 of Tract 16581); B. That the site is located in the MCAS Tustin Specific Plan land use designation of the General Plan, which provides for residential development, and on Reuse Disposition Parcels 23 and 24 in Planning Areas 4 and 5 of the MCAS Tustin Specific Plan, which is designated for low and medium density residential uses; C. That a public hearing on the matter was duly called, noticed, and held for said application on December 8, 2009, by the Planning Commission; D. That at the December 8, 2009, meeting, the Planning Commission continued the project to the January 26, 2010, meeting to allow the project proponent to meet directly with the Community Association and any interested members of the community; E. That on January 26, 2010, the Planning Commission held a continued public hearing on the item and continued the item for sixty (60) days to allow staff, Resolution No. 10-35 Page 1 of 7 the applicant, and residents to conduct further research and report back on subjects raised at the hearing; F. That on March 23, 2010, the Planning Commission conducted a second continued public hearing on the item and adopted Resolution No. 4134 recommending that the City Council deny CUP 09-024, Amendment to CP 03-003, and Amendment to Tract Map 16581 for the subject project for apartments or rental tenure, and approve DR 09-024, and CUP 09-024 as it relates to parking, authorizing the development of a 240-unit age-restricted senior residential condominium complex including 153 affordable units, recreation center, and associated infrastructure and site improvements on Lot 265 of Tract 16581; G. That a public hearing on the matter was duly called, noticed, and held for said application on April 20, 2010, by the City Council; H. That at the April 20, 2010, the City Council continued the item to a special meeting on July 7, 2010 at 5:00 p.m.; That on May 18, 2010, at Mayor Amante's suggestion the special meeting regarding Coventry Court was rescheduled from 5:00 p.m. on July 7, 2010 to 6:00 p.m. on July 7, 2010; J. That the site is located within Tract 16581 previously approved by City Council Resolution Nos. 05-40 and 06-17 for subdivision of 105.5 acres within Planning Areas 4 and 5 of the MCAS Tustin Specific Plan for the purpose of developing 1,075 residential units including 240 senior housing units for ownership tenure; K. That the applicant submitted a request to allow a change in tenure from ownership to rental for the proposed 240-unit age restricted senior housing complex; L. That as proposed and conditioned, the subject property would not be annexed into the master association and would alternatively utilize a recorded agreement between the Columbus Square Master Community Association (CSMCA) and the property owner of Lot 265 to ensure a no-net-change result for other homeowners in Columbus Square; M. That the request is consistent with the previously-approved project and the text changes are for consistency purposes and do not constitute a significant change from the intent of the original approvals; N. That the proposed project necessitates text amendments to Resolution No. 05-40 which approved Tentative Tract Map 16581; Resolution No. 10-35 Page 2 of 7 i 4.. O. That pursuant to the previously-approved Tract Map 16581, density bonus, and transfer of affordable housing units for Columbus Square, the Columbus Square Housing Agreement, and the Affordable Housing Plan for Villages of Columbus, the senior housing project includes 153 affordable housing units (36 Very Low, 61 Low, and 56 Moderate Income units). The proposed project includes the prescribed number of affordable units identical in size, location, bedroom counts, and income levels as to the previously approved plans with the exception of the type of tenure; P. That should the proposed rental tenure not be carried out or instituted, the project approval shall remain valid for the development of 240 age-restricted senior condominium units, as was originally intended and approved for the project site; Q. That this project is determined to be exempt from additional CEQA review pursuant to California Government Code Section 65457, which provides that once the EIR has been certified and the specific plan adopted, any residential development project that is undertaken to implement and is consistent with the specific plan is exempt from additional CEQA review; On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact Statement/Environmental Impact Report for the Reuse and Disposal of MCAS Tustin (FEIS/EIR), which evaluated the environmental impacts of the reuse and disposal of MCAS-Tustin, in conjunction with the adoption of a Specific Plan. On February 3, 2003, the Tustin City Council adopted Ordinance No. 1257, which adopted the MCAS Tustin Specific Plan. On Aprit 3, 2006, the City Council adopted Resolution No. 06-43 approving an Addendum to the FEIS/EIR for the Disposal and Reuse of MCAS Tustin. The FEIS/EIR and its Addendum considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin. The development of Coventry Court at Columbus Square is a residential development project that is being undertaken to implement and is consistent with the MCAS Tustin Speck Plan, as amended. No substantial changes in the project or circumstances under which it is being undertaken have occurred and no new information which was not known at the time the EIR was certified (or amended) has become available. Therefore, the proposed project is exempt from additional environmental review under CEQA. II. The City Council hereby authorizes the City Manager, or his designee to execute the First Amendment to the Housing Agreement for Columbus Square on behalf of the City of Tustin. 111. The City Council hereby authorizes the City Manager, or his designee to execute the Regulatory Agreement and Declaration of Restrictive Covenants on behalf of Resolution No. 10-35 Page 3 of 7 the City of Tustin setting forth provisions for affordable rental housing restrictions for Coventry Court project. IV. The City Council hereby approves amendment to Resolution Nos. 05-40 and 06- 17, which approved Tentative Tract Map 16581, to reflect a change in tenure from ownership to rental for the proposed 240-unit age-restricted senior housing complex on Lot 265 of Tract 16581, subject to the conditions contained in Exhibit A attached hereto. PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 7cn day of July, 2010. PA ELA STOK City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE } SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 10-35 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 7tn day of July, 2010, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: P ELA STO ER City Clerk Amante, Nielsen, Davert, Palmer ~4) Gavello ~1~ None ~~~ None ~~~ Resolution No. 10-35 Page 4 of 7 I EXHIBIT A + RESOLUTION NO. 10-35 AMENDMENT TO TENTATIVE TRACT MAP 16581 CONDITIONS OF APPROVAL GENERAL (1) 1.1 All applicable conditions of City Council Resolution Nos. 05-40 approving TTM 16581, a density bonus, and affordable housing transfer and Resolution No. 06-17 approving FTM 16581 for the Columbus Square community shall remain applicable, as herein modified. (1) 1.2 Approval of Resolution No. 10-35 is contingent upon the applicant returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (*''") 1.3 The senior apartment development shall be restricted to seniors of 55 years or older for the life of the project. An age-restrictive covenant running with the land shall be reviewed and approved by the Community E Development Director and shall be recorded by the applicant prior to -' issuance of a building permit. (**") 1.4 Prior to issuance of a building permit, the applicant shall submit an Addendum to Homebuyer Notification for Columbus Square and a letter that will be sent to all existing homeowners explaining the change in Coventry Court. Proof of mailing of the Addendum to Homebuyer Notification and the letter to existing homeowners shall be submitted to the Community Development prior to final inspection and occupancy. (1) 1.5 The applicant shall submit an amendment to Final Tract Map 16581 or a Certificate of Correction to reflect the change from condominium to apartment units, for review and approval. The amended Final Tract Map or Certificate of Correction shall be recorded prior to issuance of a building permit. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODES (7) PC/CC POLICY (4) DESIGN REVIEW **" EXCEPTION Resolution No. 10-35 Page 5 of 7 (1) 1.6 Resolution No. 10-35 shall become null and void in the event that Resolution No. 10-33 approving Conditional Use Permit 09-024 and Design Review 09-024 and Resolution No. 10-34 approving amendment to Resolution No. 3951 which approved Concept Plan 03-003 are not approved by the City Council. "*~') 1.7 Intentionally deleted since this condition is no longer applicable. (""") 1.8 Should the project as proposed for rental tenure not be instituted or carried out, the subject approval shall be considered valid for ownership tenure (240 condominium units) as originally intended and approved for the project site. However, notwithstanding such an obligation to develop condominiums for ownership tenure, non condominium unit shall be sold except with the approval of the City. (***) 1.9 Within forty-five (45) calendar days of the City's approval of the application, Tustin Coventry, LLC, andlor Meta Housing shall post cash, or a bond, equal to five hundred thousand dollars ($500,000) payable to the City to afford assurance to the City that the affordable units will be built. If the cash or bond is not delivered to the City within 45 calendar days, the approvals contained in Resolution No. 10-33 shall become null and void. The $500,000 security shall be returned or exonerated upon completion of all the affordable units. In the event construction of the affordable units has not commenced within the one-year period, the cash (or bond equivalent) shall be forfeited and shall be for the sole benefit of the City. Notwithstanding the provisions contained herein, should the development not proceed, the affordable housing obligation remains and shall be provided as required in the approved Affordable Housing Plan and Housing Agreement. Neither these approvals nor these conditions shall limit the remedies available to the City in the event the Coventry Court development is not completed, nor shall the enforceability of the approved phasing plan be limited or otherwise affected by this approval or these conditions of approval. AFFORDABLE HOUSING (**") 2.1 The developer shall comply with the obligations contained in Resolution No. 05-40 regarding affordable housing units. The senior housing project shall contain a minimum of 153 affordable units including 36 Very Low, 61 Low, and 56 Moderate Income units and at locations depicted on the previously approved Affordable Housing Plan. (***) 2.2 The First Amendment to the Housing Agreement shall include a Resolution No. 10-35 Page 6 of 7 Regulatory Agreement as an exhibit to reflect rental tenure which will be required to be executed by Tustin Coventry Seniors, LLC. (the proposed owner of the project). The First Amendment to the Housing Agreement shall be subject to approval of the Redevelopment Agency, City Attorney, and City's Special Real Estate Counsel as to form and content and shall be executed and recorded prior to issuance of any building permits. Should the First Amendment to the Housing Agreement and Affordable Housing Plan not be approved by the City Council, the subject approval shall become null and void. (***) 2.3 Prior to issuance of any building permits, an Assignment and Assumption Agreement of Tustin Coventry, LLC's duties of performance under the Housing Agreement, as amended, shall be executed between Tustin Villas Partners, LLC and Tustin Coventry Seniors, LLC on Lot 265 of Tract 16581 in a form and content approved by the Redevelopment Agency, Community Development Department, City Attorney, and City's Special Real Estate Counsel and the Community Development Department ("**) 2.4 The "Affordable Housing Plan and Density Bonus Application" document approved for the Columbus Square shall be amended to reflect the rental tenure and a clean copy of the document shall be provided to the City and Redevelopment Agency for final review and approval, prior to issuance of a building permit. (***) 2.5 The 240-unit project shall not feature a mix of housing tenure (i.e. ownership and rental) during the teen of affordability outlined in the First Amendment to the Housing Agreement and any executed Regulatory Agreement. (**"`) 2.6 The affordable units in the project shall be available during the qualified project period outlined in the First Amendment to the Housing Agreement which shall be not less than 55 years. (**") 2.7 The affordable units shall comply with the City's adopted Local Workforce Housing Preference Policy by granting current Tustin residents or individuals employed within the city of Tustin preference over an applicant who does not currently reside or is not employed in the City of Tustin. FEES ("**) 3.1 The applicant shall submit all fees required by the City and other agencies as identified in Resolution No. 10-33 including all Attorney and Special Counsel fees associated with the review of the project. Resolution No. 10-35 Page 7 of 7 ATTACHMENT 4 CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT BE RECORDED AND EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTION 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Tustin ) 300 Centennial Way ) Tustin, California 92780 ) Attention: Redevelopment Agency ) Attention: Assistant City Manager & City Clerk COPY TO: Tustin Coventry Seniors, LLC Attention: Kasey Burke 1640 Sepulveda Blvd. Suite 425 Los Angeles, CA 90025 [SPACE ABOVE LINE FOR RECORDER'S USE ONLY] REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (this "Regulatory Agreement" ) is made and entered into as of 2010, by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a California Redevelopment Agency ("Agency") and the CITY OF TUSTIN, a municipal corporation and public body corporate and politic of the State of California (together with any successor of City, the "City") and together with the Agency collectively referred to as "CITY" and Tustin Coventry Seniors, , LP a California limited liability company (the "Developer"). The City and Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties". RECITALS A. Developer and City have entered into that Housing Agreement (Columbus Square) (the "Original Housing Agreement") dated as of June 20, 2005, as amended by that certain First Amendment to the Housing Agreement dated as of , 2010 (as amended, the "Housing Agreement") pursuant to which the Developer is required to construct a certain number of Affordable Housing Units and to provide for the sale and rental of these Affordable Housing Units to Senior Citizens at Affordable Rents to Very Low Income Households, Low Income Households and Moderate Income Households. Developer has also obtained Tustin City Council approval of Conditional Use Permit 09-24 and Design Review 09- 024 authorizing the development of a 240-unit senior apartment project (age restricted to persons of 55 years of age or older, with 153 required affordable units), Amendment to Concept Plan 03- 003 and Amendment to a Tentative Tract Map 16581 with adoption of Resolution Nos. 10-33, 10-34 and 10-35. Of the 240 units in the Coventry Court project, 153 units are also rent restricted to require occupancy by Senior Citizens who are Affordable Households, with the remaining 87 units age restricted for occupancy by Senior Citizens, but not income restricted. B. Conditions of the Affordable Housing Agreement, Conditional Use Permit and Design Review, and amendments to the Concept Plan and Tentative Tract Map require the Developer's agreement to enforce certain senior citizen housing and affordable senior housing restrictions. C. Developer owns, or intends to acquire, the real property legally described on Exhibit "A" attached hereto and incorporated herein (the "Property), and to construct improvements (the "Improvements") for a rental housing project on the Property (the "Project") to meet a portion of its obligations under the Housing Agreement. D. The "Developer" as used in this Agreement shall solely mean Tustin Coventry Seniors, LP a California limited partnership, which is the Developer as of the effective date of this Agreement, or following any assignment approved by the City, any assignee of or successor of the Developer's rights, obligations, powers, and responsibilities required by this Agreement. E. In consideration of the City's agreement to support the Project pursuant to the Developer's commitments under the Housing Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer now desire to enter into this Regulatory Agreement to set forth their agreement regarding the affordable housing restrictions for the Project and to cause said affordable housing restrictions to run with the land for the benefit of both the Agency and the City. AGREEMENT NOW, THEREFORE, the City and the Developer hereby agree as follows: 1. Definitions Capitalized terms used in this Regulatory Agreement, unless otherwise defined herein (including Exhibit "B" attached hereto), shall have the meanings specified in the Affordable Housing Agreement. -2- 2. Development of the Project Site. 2.1 Permits and Governmental Approvals As part of the proposed construction of the Project, prior to any construction requiring a building permit for the Project, the Developer shall obtain all required City approvals, building permits and Design Review application approvals in accordance with the City of Tustin Municipal Code (the "City Code"), the Specific Plan, all Government Requirements and the Housing Agreement. 2.2 Local. State and Federal Law. The Developer shall carry out the construction of the Project in conformity with the Housing Agreement, the City Code, the Specific Plan and all applicable Governmental Requirements. Specifically, and without limiting the foregoing, the Developer shall at all times comply with all applicable federal and State labor rules including, but not limited to, any applicable prevailing wage requirements under California law. 2.3 Inspections. 2.3.1 During the construction of the Project, the City shall have the right to inspect all Improvements thereto, including but not limited to, dwelling unit interiors and the grounds of the Project for City and/or the State of California (the "State") building, housing and fire code and safety violations. Developer shall correct any such violations within a reasonable period of time after receiving written notice of a violation of any building, housing, fire or safety code applicable to the Project. 2.3.2 Upon completion of the construction work, the City shall have the right to conduct annual inspections of the Project, including the dwelling unit interiors and the grounds of the Project for City and/or State building, housing and fire code and safety and occupancy violations. All rental agreements and contracts executed with the tenants in the Project shall include the right of the City to inspect the interior of the dwelling units upon forty- eight (48) hours notice. The City's Program Administrator ("Program Administrator") agrees to use its best efforts to cause representatives of City to coordinate annual inspections in conjunction with annual inspections by other agencies. 2.4 Time Limit for Construction. All Improvements on the Project shall be completed to the satisfaction of the Program Administrator in accordance with the Schedule of Performance which is attached as Exhibit C this Agreement, as may be modified by Program Administrator and Developer from time to time. The City may at its sole discretion, upon written request from the Developer, extend the times specified in the Schedule of Performance as evidenced by written notice and response from the Program Administrator. 3. Covenants Related to Affordable Housing. The Developer, for itself, its successors, its assigns and every successor in interest to the Property, hereby agrees, represents, warrants and covenants as follows: 3.1 Use of Very Low Income Low Income and Moderate Income Senior Citizen Units. Developer shall construct on the Property a 240 unit Senior Citizen independent living rental housing Project. The Project shall include not less than 36 Very Low Income Units, 61 Low -3- Income Units and 56 Moderate Income Units to be rented to, occupied by, or held available only for rental to Senior Citizens in Very Low Income Households, Low Income Households and Moderate Income Households at an Affordable Rent subject to the age and occupancy restrictions contained in this Section 3 and the Housing Agreement. The remaining 88 units in the Project shall be rented at market rates to Senior Citizens with no restrictive covenants on rental rates. 3.2 Identification of Affordable Housing Units. During the Qualified Project Period, occupancy of the Very Low Income Units, Low Income Units and Moderate Income Units shall be dispersed throughout the Project in a manner approved by the City in order to avoid concentration of Very Low Income Units, Low Income Units and/or Moderate Income Units. The Very Low Income Units, Low Income Units and Moderate Income Units shall be allocated among the units as follows: Affordable Housing Unit Types Very Low Income Units Low Income Units Moderate Income Units Studio Units 1 Bedroom Units 36 44 2 Bedroom Units 17 56 3 Bedroom Units Totals 36 61 56 3.3 Renting Limited to Very Low Income Households Low Income Households and Moderate Income Households. The Affordable Housing Units shall be rented to eligible and qualified Very Low Income, Low Income and Moderate Income Households in accordance with the following terms: 3.3.1 Developer may not charge rent for an Affordable Housing Unit in excess of an Affordable Rent for such Affordable Housing Unit. 3.3.2 Only one qualified household shall be permitted to occupy and reside in a unit at any one time and said unit shall be used as the principal residence of the qualified household during the term of any lease and for no other purpose. A qualified household shall not lease or sublease the unit or its right of occupancy. 3.3.3 The number of persons permitted to occupy the Affordable Housing Unit shall not exceed the occupancy permitted pursuant to the general requirements of the United States Department of Housing and Urban Development, which as the date of this Agreement is two persons per bedroom, plus one person (i.e., for a two bedroom unit the maximum number of persons residing in the unit can be five persons). 3.3.4 Developer shall use its best efforts to fill vacancies of Very Low Income Units, Low Income Units and Moderate Income Units as soon as possible following the date the -4- Affordable Housing Unit becomes available for renting, by renting the units to Very Low Income Households, Low Income Households and Moderate Income Households as applicable to such units. Should multiple tenants be equally eligible and qualified for a Very Low Income Unit, Low Income Unit or Moderate Income Unit, Developer shall lease available units to such eligible tenants on a first-come, first-served, and non-discriminatory basis. Developer shall notify the Program Administrator of any Affordable Housing Unit that either (a) fails to be leased within thirty (30) days after the issuance of a certificate of occupancy for the unit to a Very Low Income Household, Low Income Household or Moderate Income Household, as may be applicable (the "Initial Leasing Period"), or (b) becomes available as a result of tenant vacation of the premises. 3.3.5 Developer shall create and maintain an "interest list" which includes all those potential Senior Citizen tenants who have expressed an interest in leasing a unit within the Project. The interest list shall designate whether a potential Senior Citizen tenant is in a Very Low Income Household, Low Income Household or Moderate Income Household. The interest list shall clearly designate whether such potential tenant will be receiving rental assistance under the U.S. Department of Housing and Urban Development (HUD) Section 8 program. 3.3.6 An Affordable Housing Unit that either (a) fails to be leased within the Initial Leasing Period to a Very Low Income Household, Low Income Household or Moderate Income Household, as may be applicable, or (b) becomes available as a result of tenant vacation of the premises, shall be rented to a new eligible and qualified Senior Citizen tenant in accordance with the following procedure: 3.3.6.1 Developer shall make a reasonable effort to contact eligible and qualified prospective Senior Citizen tenants listed on the "interest list" created in Subsection 3.3.5 above, and Developer shall lease available units to such eligible tenants on a first-come, first-served, basis; 3.3.6.2 Each such eligible and qualified prospective Very Low Income Household(s), Low Income Household(s), or Moderate Income Household(s) shall have five (5) business days after being contacted by Developer to notify Developer of the tenant's intent to accept the unit, and must thereafter execute a lease for the unit within seven (7) days of such acceptance; 3.3.6.3 Failure of the eligible and qualified prospective Very Low Income Household(s), Low Income Household(s), or Moderate Income Household(s) to timely notify Developer of accepting the unit or to thereafter timely execute a lease for the unit, shall be deemed a rejection of the unit, and Developer may seek other eligible tenants as set forth in Subsections 3.3.6 and 3.3.7 and following. 3.3.7 In the event the "interest list" maintained by Developer as provided in Section 3.3.5 does not include a prospective Senior Citizen tenant that is eligible and qualified as a tenant of a vacant Affordable Housing Unit, or in the event Developer is unable to lease a vacant Affordable Housing Unit after fully complying with the procedures set forth in Subsections 3.3.6, then Developer may lease the restricted unit to any eligible and qualified -5- Very Low Income Household, Low Income Household or Moderate Income Household for the appropriate restricted unit. 3.3.8 Senior Citizens who are in Very Low Income Households, Low Income Households or Moderate Income Households who occupy Affordable Housing Units at the expiration of the Qualified Project Period and who qualify as Very Low Income Households, Low Income Households or Moderate Income Households on such date shall be permitted to continue to occupy those Affordable Housing Units for a period of one (1) year, beginning on the first day after the expiration of the Qualified Project Period; provided, however, that (i) annual rent increases during such one (1) year period shall not exceed an amount equal to the existing rent for such unit plus an amount equal to the greater of five percent (5%) or (ii) the increase that would have been permitted had the Qualified Project Period not expired. Except as provided in the preceding sentence, upon the expiration of the Qualified Project Period, the Affordable Housing Units shall no longer be subject to the provisions of this Section 3. 3.3.9 The Developer agrees to provide to Very Low Income Households, Low Income Households and Moderate Income Households within the Project notice of all rent increases pursuant to all applicable Governmental Requirements, including rules and regulations of the State of California. 3.4 Rental Rates. Rental rates for all Affordable Housing Units to which this Regulatory Agreement is applicable shall not exceed the higher of following: 3.4.1 The "Affordable Rent" for Very Low Income Households, Low Income Households and Moderate Income Households shall be as defined in Exhibit "B"; or 3.4.2 If the Senior Citizen in a Very Low Income Household or Low Income Household receives a federal or State rental subsidy and that Very Low Income Household or Low Income Household pays as a contribution toward rent no more than 30% of the household's adjusted income, then the maximum rent (i.e., tenant contribution plus any rental subsidy) is the fair market rent (FMR) allowable under the federal or State rental subsidy certificate or voucher program. To obtain the maximum monthly rent that may be charged to a qualified Tenant that is subject to this limitation, the Developer shall multiply the annual adjusted income of the qualified Tenant by 30 percent (30%) and divide by 12 and, if applicable, subtract a monthly allowance for any utilities and services (excluding telephone) to be paid by the tenant to be used in calculating the maximum rent allowed under this Subsection 3.4. 3.5 Voucher Holders. No Very Low Income Unit or Lower Income Unit shall be refused for leasing to a holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or Section 8 Rental Voucher Program or to the holder of a comparable document evidencing participation in a tenant-based assistance program because of the status of the prospective Very Low Income Household or Low Income Household as a holder of such certificate of family participation, rental voucher, or comparable tenant-based assistance document. -6- 3.6 Rent Schedule and Utility Allowances. The Program Administrator shall annually review, at Developer's sole cost, and approve rents proposed by the Developer for the Very Low Income Units, Low Income Units and Moderate Income Units to determine that the Developer has properly applied the restrictions contained in this Section 3 and shall provide the Developer with a schedule establishing the monthly allowances for utilities and services to be paid by the Very Low Income Households, Low Income Households and Moderate Income Households who occupy the Affordable Housing Units. The Developer shall re-examine the income of each tenant household living in the Affordable Housing Units at least annually. The maximum monthly rent shall be recalculated by the Developer and reviewed and approved by the Program Administrator annually, and may change as changes in the applicable gross rent amounts, the income adjustments, or the monthly allowance for utilities and services warrant. The Developer shall not impose on a tenant an increase in rent approved by the Program Administrator if that increase is not permitted to be imposed under the lease between Developer and the tenant. Developer shall provide not less than sixty (60) days prior written notice to affected tenants before implementing any increase in rents. 3.7 Increases in Tenant Income. 3.7.1 If, as a result of the annual re-examination of incomes required pursuant to Subsection 3.10.2, the Developer determines that a household that qualified as a Very Low Income Household for purposes of Section 3.3 above, no longer is a Very Low Income Household but instead qualifies as a Low Income Household, then the Developer may require that household to pay the Affordable Rent for Low Income Senior Citizen Units, and the Developer shall lease the next available Lower Income Senior Citizen Unit or Moderate Income Senior Citizen Unit to a Very Low Income Household at the rent permitted under Section 3.3. 3.7.2 If, as a result of the annual re-examination of incomes required pursuant to Subsection 3.10.2, the Developer determines that a household that qualified as a Very Low Income Household for purposes of Section 3.3 above, no longer is a Very Low Income Household but instead qualifies as a Moderate Income Household, then the Developer may require that household to pay the Affordable Rent for Moderate Income Senior Citizen Units, and the Developer shall lease the next available Moderate Income Senior Citizen Unit to a Very Low Income Household at the rent permitted under Section 3.3. 3.7.3 If, as a result of the annual re-examination of incomes required pursuant to Subsection 3.10.2, the Developer determines that a household that qualified as a Low Income Household for purposes of Section 3.3 above, no longer is a Low Income Household but instead qualifies as a Moderate Income Household, then the Developer may require that household to pay the Affordable Rent for Moderate Income Households, and the Developer shall lease the next available Moderate Income Unit to a Low Income Household at the rent permitted under Section 3.3. 3.7.4 If, as a result of the annual re-examination of incomes required pursuant to Subsection 3.10.2, the Developer determines that a household that qualified as a Very Low Income Household, Low Income Household or Moderate Income Household for purposes of Section 3.3 above, no longer is a Very Low Income Household, Low Income Household or -7- Moderate Income Household, then the Developer may require that household to pay the fair market rent, and the Developer shall lease the next available apartment unit in the Project to a Very Low Income Household, Low Income Household or Moderate Income Household (whichever class of tenant the original Affordable Housing Unit was to be rented to) at the Affordable Rent for such Very Low Income Household, Low Income Household or Moderate Income Household. Such next available apartment unit shall then be deemed to be a Very Low Income Unit, Low Income Unit or Moderate Income Unit, as the case may be, subject to the provisions of this Section 3, and the previous unit shall no longer be subject to the provisions of this Section 3. 3.7.5 Notwithstanding the foregoing provisions, it is the intent of this Regulatory Agreement that the number of Very Low Income Units, Low Income Units and Moderate Income Units be allocated as among the Affordable Housing Units as provided in Section 3.2. In the event the foregoing provisions result in an allocation of Affordable Housing Units different from that provided in Section 3.2, Developer shall lease the next available Affordable Housing Unit to a Very Low Income Household, Low Income Household or Moderate Income Household, as the case maybe, in order to correct the allocation. 3.8 Minimum Rents. Notwithstanding the other provisions of this Section 3, Developer shall not be required to charge a rent for a Very Low Income Unit, Low Income Unit or Moderate Income Unit that would be lower than the maximum rent Developer would have been permitted to charge for the Very Low Income Unit, Low Income Unit or Moderate Income Unit had the determination of maximum rent been made on the date the City and Developer entered into this Regulatory Agreement. 3.9 Tenant Protections. 3.9.1 Rental Agreement. The rental agreement between Developer and a Very Low Income Household, Low Income Household or Moderate Income Household must be for not less than one year, unless the Program Administrator provides prior written approval, and may not contain any of the following provisions: 3.9.1.1 Any agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the Developer in a lawsuit brought in connection with the lease. 3.9.1.2 Any agreement by the tenant that the Developer may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the Unit after the tenant has moved out of the Unit. The Developer may dispose of such personal property in accordance with applicable State law. 3.9.1.3 Any agreement by the tenant not to hold the Developer or its agents legally responsible for any action or failure to act, whether intentional or negligent. -8- 3.9.1.4 Any agreement of the tenant that the Developer may evict the tenant or household members without notice to the tenant. 3.9.1.5 Any agreement by the tenant that the Developer may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties. 3.9.1.6 Any agreement by the tenant to waive any right to a trial by jury. 3.9.1.7 Any agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease. 3.9.1.8 Any agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the Developer against the tenant. The tenant, however, maybe obligated to pay costs if the tenant loses. 3.9.2 Termination of Tenancy. Developer may not terminate the tenancy or refuse to renew the lease of a Very Low Income Household, Low Income Household or Moderate Income Household except for violation of the terms and conditions of the lease; for violation of applicable federal, State, or local law; or for other good cause. Any termination or refusal to renew must be preceded by not less than sixty (60) days by the Developer's service upon the tenant of a written notice specifying the grounds for the action. 3.10 Very Low Income Low Income and Moderate Income Senior Citizen Tenants; Records and Reports. The Developer hereby represents, warrants and covenants as follows: 3.10.1 Within thirty (30) days after the date on which at least fifty percent (50%) of the dwelling units in the Project are first occupied, the Developer shall execute and deliver to the Program Administrator a copy of a certificate identifying said date and the beginning date and earliest ending date of the Qualified Project Period, which certificate shall be in the form provided by Program Administrator or otherwise approved by Program Administrator. The Developer shall record a copy of such certificate in the Official Records. 3.10.2 The Developer shall obtain, complete and maintain on file Verifications of Income and age qualification, in the form provided by Program Administrator, from each Very Low Income Household, Low Income Household and Moderate Income Household, including (i) a Verification of Income and Age dated immediately prior to the initial occupancy of such Very Low Income Household, Low Income Household or Moderate Income Household and (ii) thereafter, annual Verifications of Income and Age which must be dated as of June 1st of each year, or such other date as may be mutually agreed upon by the Program Administrator and the Developer, and in no event less than once in every twelve-month period following each Very Low Income Household's, Low Income Household's and Moderate Income Household's occupancy of a Unit in the Project. 3.10.3 A copy of the most recent Verification of Income and Senior Citizen age qualification for Very Low Income Household, Low Income Household and Moderate Income -9- Household commencing occupation or continuing occupation of a Very Low Income Unit, Low Income Unit or Moderate Income Unit (and not previously filed) shall be attached to the Certificate of Continuing Program Compliance, in the form provided by Program Administrator, which is to be filed with the Program Administrator no later than the fifteenth (15'h) day of each month following the receipt by the Program Administrator of the Completion Certificate to and including the month in which such report indicates that fifty percent (50%) of the units in the Project are occupied by Senior Citizens in Very Low Income Households, Low Income Households and Moderate Income Households and, thereafter, no later than the first day of the sixth month of each calendar year until the end of the Qualified Project Period. 3.10.4 The Developer shall make a diligent and good-faith effort to verify that the information provided by an applicant in the Verification of Income and Senior Citizen age qualification information is accurate by taking the following steps, as a part of the verification process: (1) obtain copy of Birth Certificate or other evidence of tenant's qualifying age acceptable to the Program Administrator; (2) obtain pay stubs for the most recent one-month period, and; (3) obtain income W-2 Wage and Earning Statements and tax returns for the most recent tax year; alternatively, if determined appropriate for the tenant's situation the following may be submitted (a) income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (b) if the applicant is unemployed, does not have income tax returns or is otherwise unable to provide other forms of verification as required above, obtain another form of independent verification satisfactory to the Program Administrator. 3.10.5 The Developer will maintain complete and accurate records pertaining to the Very Low Income Units, Low Income Units and Moderate Income Units and will permit any duly authorized representative of the City, without limitation, to inspect the books and records of the Developer pertaining to the Project, including those records pertaining to the occupancy of the Affordable Housing Units. 3.10.6 The Developer will prepare and submit to the Program Administrator no later than the first day of the sixth month of each calendar year until the end of the Qualified Project Period, a Certificate of Continuing Program Compliance executed by the Developer with the following information: 3.10.6.1 The number of the dwelling units of the Project which were occupied, pursuant to Section 3.1 above, by Very Low Income Households, Low Income Households and Moderate Income Households during such period and such other tenant information as may be reasonably required as stated on the form of the Certificate of Continuing Program Compliance acceptable to the Program Administrator; and 3.10.6.2 A statement that either (i) no unremedied default has occurred under this Regulatory Agreement or (ii) a default has occurred, in which event the Certificate shall describe the nature of the default in detail and set forth the measures being taken by the Developer to remedy such default. -io- 3.10.7 Each lease or rental agreement for an Affordable Housing Unit shall contain a provision to the effect that the Developer has relied on the Verification of Income and Senior Citizen age qualification and supporting information supplied by the Very Low Income Household, Low Income Household or Moderate Income Household in determining qualification for occupancy of the Very Low Income Units, Low Income Units and Moderate Income Units and that any material misstatement in such verification (whether or not intentional) will be cause for immediate termination of such lease or rental agreement. Each such lease or rental agreement shall also provide (and shall so disclose to the tenant) that the tenant's income is subject to annual verification in accordance with Section 10.2, and that, if upon review of any such verification, the tenant's income exceeds the then applicable income limit for a Very Low Income, Low Income or Moderate Income Household, such tenant shall cease to qualify as a Low Income Household, Low Income Household, or Moderate Income Household and, as a consequence, said Tenant's lease shall be subject to termination on such prior notice as the Program Administrator deems reasonable. 3.10.8 Local Workforce Housing Preference Policy. In marketing and renting units to Very Low Income, Low Income and Moderate Income Senior Citizen Tenants, the Developer shall establish a priority system that ensures that prospective rental applicants who are currently employed in or currently residing in the City of Tustin have priority over an applicant that does not currently reside or is not employed in the City of Tustin (hereinafter referred to as the "Local Preference Policy", adopted by the Tustin City Council on November 6, 2007). To qualify for the Local Preference, Developer shall require an applicant to demonstrate a minimum of six months of current employment or current residency in Tustin. The Developer shall refer to the Local Preference Policy for detailed information required to be submitted by Developer for verification of residency and local employment and to ensure Developer's compliance with the Local Preference Policy. 3.11 Termination of Affordable Housing Covenants. The provisions of this Section 3 shall terminate in their entirety at the end of one year following the expiration of the Qualified Project Period. 4. Non-Discrimination Covenants. The Developer for itself, its successors, its assigns and every successor in interest to the Project Site or any part thereof jointly and severally, hereby represents, warrants and covenants as follows: 4.1 Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project Site or any portion thereof, nor shall the Developer itself or any person claiming under or through it (including any tenant) establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Project Site or any portion thereof. All deeds, leases or contracts shall contain or be subject to substantially the following non-discrimination or non-segregation clauses: -1 ~- 4.1.1 In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 4.1.2 In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 4.1.3 In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 5. Maintenance of the Project. The Developer and its successors and assigns shall maintain at their cost the Property as follows: 5.1 Minimum Standards. Prior to construction of any units on the Property, the Property shall at all times be maintained in a clean and weed-free condition, reasonably free from any debris and waste materials. 5.2 During Construction. From the date upon which construction begins of any Improvements until issuance of a completion certificate for any such Improvements, the Developer and its successors and assigns shall maintain the Property and Improvements under construction consistent with best construction industry practice. 5.3 Following Construction -12- 5.3.1 Upon completion of construction of the Improvements, the Housing Agreement and this Agreement on the Property, the Developer, its successors and assigns shall maintain the Improvements in the same aesthetic and same condition or better as the condition of such Improvements at the time the City issues a Certificate of Compliance, reasonable wear and tear excepted. The standard for the quality of maintenance of the Project Improvements required by this Section 5.3.1 shall be met whether or not a specific item of maintenance is listed below. However, representative items of maintenance shall include: (i) maintenance, repair and replacement on a regular schedule, consistent with like developments in Orange County, of private streets, roads, drives, bike paths, alleyways, sidewalks, utilities (except to the extent owned or controlled by a utility franchisee) common areas, landscaping, hardscaped areas and fountains; (ii) frequent and regular inspection for graffiti or damage or deterioration or failure, and immediate repainting or repair or replacement of all surfaces, fencing, walls, equipment, etc., as necessary; (iii) emptying of trash receptacles and removal of litter; (iv) regular sweeping of roadways and sidewalks throughout the Property; (v) fertilizing and replacing vegetation as necessary; (vi) cleaning windows on a regular basis; (vi) painting the buildings on a regular program and prior to the deterioration of the painted surfaces; (vii) conducting roof inspections on a regular basis and maintaining roofs in a leak-free and weather-tight condition. 5.3.2 Upon completion of construction of Improvements as provided in the Housing Agreement and this Agreement on the Property, Developer shall maintain, repair and replace all or any portion of the Improvements as maybe required to maintain the Improvements in a high quality condition. All Improvements repaired or replaced under this Subsection 5.3.2 shall be repaired or replaced with materials, apparatus and facilities of quality at least equal to the quality of the materials, apparatus and facilities identified for the Improvements under the Regulatory Agreement. 5.3.3 Developer's obligations to maintain the Improvements as provided in this Section 5.3 shall include, but not be limited to, the following: 5.3.3.1 Maintaining all paved surfaces, including streets, drives, parking areas and curbs of the common areas in a smooth and evenly covered condition, which maintenance work shall include without limitation, cleaning, sweeping, re-striping, repairing and resurfacing of the paved surfaces using surface material of an appearance and quality equal or superior to the materials installed under the DDA and this Regulatory Agreement; 5.3.3.2 Removal of all papers, debris, filth and refuse, and washing and sweeping the common areas to the extent necessary to keep the Project Site in afirst-class, clean and orderly condition, and washing down and/or cleaning all hard surfaces including brick, metal, concrete, glass, wood and other structural members as required; 5.3.3.3 Operating, keeping in repair, cleaning and replacing and/or re- ballasting all common area lighting fixtures, equipment and facilities as may be reasonably required, including all lighting necessary or appropriate for the Project Site and Project Improvements, security and exterior lights intended to illuminate the Project Site and Project Improvements; -13- 5.3.3.4 Cleaning and maintaining all landscaped areas, including landscape planting areas, lawn areas and planters around and adjacent to exterior walls of buildings, repairing automatic sprinklers, weeding, pruning, fertilizing and making replacement of shrubs and other landscaping as required; and 5.3.3.5 Maintaining, repairing and replacing as necessary any freestanding, monument or pylon signs on the Property. 5.4 Failure to Maintain. In the event the Developer or its successors or assigns fails to maintain the Improvements in accordance with the standard for the quality of maintenance, City representatives or the Program Administrator and its designee shall have the right but not the obligation to enter the Property upon thirty (30) days notice to the Developer or its successor or assigns, to correct any violation, and hold the Developer, and/or such successors or assigns, responsible for the cost thereof, and such cost, until paid, shall constitute a lien on the applicable portion of the Property. 5.5 Assignment of Obligation to Maintain. The Developer may, subject to the prior approval of the Program Administrator, which approval shall not be unreasonably withheld, assign the maintenance responsibilities contained herein to the subsequent purchasers of the Property, a portion of the Property, or individual buildings thereon, or to any Homeowners Association to be created, through appropriate covenants, conditions and restrictions to be recorded against one or more Parcels, upon which assignment the Developer shall have no further liability under this Section 5. 6. Sale or Transfer of the Project. The Developer hereby covenants and agrees not to voluntarily sell, transfer or otherwise dispose of the Property, or any portion thereof (other than for individual tenant use as contemplated hereunder), without obtaining the prior written consent of the Program Administrator. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Property in violation of this Section 6 shall be null, void, and shall be ineffective to relieve the Developer of its obligations under the Housing Agreement and this Regulatory Agreement. Any transfer of the Project to any entity, whether or not affiliated with the Developer, shall be subject to the provisions of this Section 6. The provisions of this Section 6 shall terminate in their entirety at the end of one year following the expiration of the Qualified Project Period. 7. Term. This Regulatory Agreement and all and each of the provisions hereof shall become effective upon its execution and delivery and shall remain in full force and effect thereafter except as expressly provided herein. It is expressly agreed and understood that the provisions of this Regulatory Agreement are intended to survive the Housing Agreement. -14- 8. Covenants and Restrictions to Run with the Land. 8.1 Developer States that: all covenants and restrictions contained in this Regulatory Agreement are intended to be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by the City, and its respective successors and assigns, against Developer, its successors and assigns, to or of the Property or any portion thereof or any interest therein, and any party in possession or occupancy of said Property or portion thereof. 8.2 The parties acknowledge and agree that all covenants and restrictions contained in this Regulatory Agreement are intended to be covenants running with the land of the entire Property. Without in any way limiting the foregoing, each of the parties hereto shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of their respective obligations hereunder in order to carry out the intent and purposes of this Regulatory Agreement. 8.3 In amplification and not in restriction of the provisions set forth hereinabove, Developer specifically states that it is intended and agreed that the City shall be deemed a beneficiary of the agreements, covenants and restrictions herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants and restrictions without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants and restrictions shall run in favor of City for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is or remains an owner of any land or interest therein to which such covenants and restrictions relate. The City shall have the independent right, in the event of any breach of this Regulatory Agreement or covenant or restriction herein, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of this Regulatory Agreement or covenants or restrictions. 8.4 The City and its successors and assigns, and Developer and the permitted successors and assigns of Developer in and to all or any part of the fee title to the Property and the Project, shall have the right upon written agreement signed by both parties to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants or restrictions contained in this Regulatory Agreement without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any interest less than a fee in the Property or the Project. The covenants and restrictions contained in this Regulatory Agreement, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Property or Project, or any person or entity having any interest in any other such realty. 8.5 No breach of any of the provisions of this Regulatory Agreement shall impair, defeat or render invalid the lien of any Mortgage made in good faith and for value encumbering the Property or Project or any portion thereof. -15- 9. Burden and Benefit. The City and the Developer hereby declare their understanding and intent that the burden of the covenants and restrictions set forth herein touch and concern the Property in that the Developer's legal interest in the Property is rendered less valuable thereby. The Developer hereby further declares its understanding and intent that the benefit of such covenants and restrictions touching and concerning the land is the enhancement and enjoyment and use of the Project by Very Low Income Households, Low Income Households and Moderate Income Households, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Housing Agreement was entered into with Developer. 10. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Property in order to establish and carry out a common plan for the use, development and improvement of the Project Site. 11. Default Enforcement. 11.1 Default. Developer shall be in Default under this Regulatory Agreement if any of the following occur: 11.1.1 A Default occurs under the Housing Agreement as it relates to the Property; 11.1.2 A Default occurs under any deed of trust or mortgage against the Property; 11.1.3 The Developer or its successor in interest fails to perform fully any of its obligations set forth in this Regulatory Agreement within thirty (30) days following receipt of written notice regarding such other default; provided, that if such failure is capable of being remedied but not capable of being remedied within thirty (30) days, then the defaulting party shall have an additional period of time within which to remedy such failure, not in any event to exceed sixty (60) days. The failure of a City representative or the Program Administrator to notify Developer or its successor in interest of any such default shall not be deemed a waiver of the default, and the City shall have no obligation to notify the defaulting party of the default. 11.2 Remedies. Following a Default described in Subsection 11.1, the City may pursue all of its rights and remedies set forth in the Housing Agreement or this Regulatory Agreement or otherwise available at law, in equity or by statute. The City's rights and remedies shall be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any right or remedy at law or in equity which the City might otherwise have by virtue under this Agreement and the exercise of one such right or remedy by the City shall not impair the City's standing to exercise any other right or remedy. The parties agree that this Regulatory Agreement maybe specifically enforced: -16- 11.2.1 In the event of a Default by the Developer or its successor in interest, under any mortgage or deed of trust, the City shall have the right, but not the obligation, to perform the unperformed obligations at the expense of Developer, and all expenditures by City to cure such default shall accrue interest from the date such sums are actually spent by City at a default rate equal to the then "prime rate" specified by Wells Fargo Bank or its successor plus three percent (3%), but not in excess of such rate as may be permitted under applicable law. Payment shall be made by Developer to City within thirty (30) days after written request thereof. If payment is not made by Developer within thirty (30) days after such demand is made then City shall have the right to add such amount, to any sums then due or thereafter becoming due from Developer under the this Regulatory Agreement. In addition, the amount due to the City shall constitute a lien and charge upon the fee interest of Developer to Property and City shall have the right to record a notice (a "Delinquency Notice") against the Property, which states the amount due from the Developer. The aforesaid lien shall attach immediately upon recordation of the Delinquency Notice. A copy of the Delinquency Notice shall be delivered to Developer pursuant to Section 14.4. The lien may be foreclosed by appropriate action in court or in the manner prescribed law. Upon such event, the Developer shall be required to pay all attorney fees and costs and expenses of City in connection with the preparation, recordation and foreclosure of such lien. Any such lien shall be prior to all encumbrances, liens, or charges on the Property except (a) taxes which are by law prior thereto; (b) the rights of tenants pursuant to bona fide leases; and (c) any permitted mortgage and advances thereunder made in good faith and for value and recorded prior to the Delinquency Notice. The transfer of the Property shall not affect the aforesaid lien. 11.2.2 Non-Complying Affordable Housing Units. In addition to and without limitation of any other rights and remedies set forth in this Regulatory Agreement or otherwise available to any party legally entitled to enforce this Regulatory Agreement, if a Default with respect to Section 3 occurs, and (i) if the Default is not cured within thirty (30) days after notice by City is provided to Developer, or (ii) if such Default cannot reasonably be cured within the thirty (30) day period and Developer has not commenced the curing of such Default, or if Developer is not otherwise diligently prosecuting such cure to completion, then City shall have the right to lease and Developer shall lease to City on demand for a rental of $1.00 per Unit per year any and all of the "Non-Complying Affordable Housing Units" at such time as the Non- complying Affordable Housing Unit(s) is vacated. Notwithstanding any term or condition of the lease under which the City leases aNon-Complying Affordable Housing Unit pursuant to this Subsection 11.2, Developer hereby consents to and grants City the right to assign such lease or sublet such Unit(s) to a Very Low Income Household, Low Income Household or Moderate Income Household at the Affordable Rent for Very Low Income Unit(s), Low Income Unit(s) or Moderate Income Unit(s), or to any non-profit housing provider qualified as a 501 (c)(3) entity under the Internal Revenue Code (a "Provider") in the community for $1.00 per year. The assignment or sublet to a Provider shall be on the condition that such Provider subleases such Affordable Housing Unit(s), or assigns such lease(s) to a Very Low Income Household, Low Income Household or Moderate Income Senior Citizen Tenant at the Affordable Rent. If the City assigns or sublets to any Provider, notwithstanding any term or condition of the lease between the Developer and the City, the Developer hereby consents to and grants such Provider the right to assign such lease or sublet such Affordable Housing Unit to any Very Low Income Household, Low Income Household or Moderate Income Household at an Affordable Rent. If -i~- the City leases any Affordable Housing Unit(s) or a Provider subleases any Affordable Housing Unit(s) or is the assignee of any lease(s) from the City, the City or Provider, as the case may be, to the extent necessary to ensure compliance with Section 3 hereof, shall sublease such Assisted Unit(s) or assign such lease(s) to any Very Low Income Household, Low Income Household or Moderate Income Household at the Affordable Rent. Any rent paid under such a sublease or assignment shall be paid to the Developer after the City or Provider, as the case maybe, has been reimbursed for any reasonable expenses incurred by it in connection with exercising the rights and remedies set forth in this Subsection 11.2.2; provided however, if the Developer is in Default under any Permitted Mortgage representing Senior Obligations, the Deeds of Trust and/or any other City approved encumbrance under the DDA in connection with the financing of the Property or any Improvements thereon, such rent shall be paid to the party legally entitled thereto under the terms of the applicable loan. 12. Recording and Filing. The Developer shall cause this Regulatory Agreement, and all amendments and supplements hereto and thereto, to be recorded and filed in the Official Records and in such other places as the Program Administrator may reasonably request. The Developer shall pay all fees and charges incurred in connection with any such recording. Written evidence of the recorded Regulatory Agreement shall be provided to the Program Administrator. 13. Indemnification Developer shall defend, indemnify and hold harmless City and their respective officers, officials, agents, employees, representatives, and volunteers from and against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to Developer performance under this Agreement, except to the extent cause by the sole gross negligence or willful misconduct of City. 14. Miscellaneous. 14.1 Governing Law. This Regulatory Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California. 14.2 Amendments This Agreement shall be amended only by written instrument executed by the parties hereto, or their successors in title and duly recorded in the Official Records. 14.3 Waiver. No waiver of any provision or consent to any action under this Regulatory Agreement shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested. -18- 14.4 Notices. All notices, demands, consents, requests and other communications required or permitted to be given under this Regulatory Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other party; (b) three (3) business days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other party as set forth below; or (c) the next business day after such notice has been deposited with a national overnight delivery service reasonably approved by the parties (Federal Express and Airborne Express are deemed approved by the parties), postage prepaid, addressed to the party to whom notice is being sent as set forth below with next-business-day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows: Developer: Tustin Coventry Seniors, LP, a California limited partnership 1640 Sepulveda Blvd. Suite 425 Los Angeles, CA 90025 City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Assistant City Manager With copy to: Douglas Holland City Attorney Woodruff, Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, California 92626 14.5 Severability. Any provision of this Regulatory Agreement that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from this Regulatory Agreement. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of this Regulatory Agreement. If any provision or part thereof of this Regulatory Agreement is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. -19- 14.6 Authorit~of Signatories to Regulatory Agreement. Each person executing this Regulatory Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Regulatory Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Regulatory Agreement and the performance of such party's obligations hereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. 14.7 Consent to Jurisdiction. The parties hereto agree that all actions or proceedings arising in connection with this Regulatory Agreement shall be tried and litigated exclusively in the state and federal courts located in the County of Orange, State of California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among the parties with respect to or arising out of this Regulatory Agreement in any jurisdiction other than that specified in this Section. Each party hereto waives any right that it may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this section, and stipulates that the state and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of this Regulatory Agreement. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this section by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Regulatory Agreement, or in the manner set forth in the section of this Regulatory Agreement pertaining to notice. Any final judgment rendered against the party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. 14.8 Recitals. The recitals set forth at the beginning of this Regulatory Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof and the terms and conditions set forth in the recitals, if any, shall be deemed a part of this Regulatory Agreement. 14. 9 Captions. All captions, titles or headings of the articles, sections, paragraphs or subparagraphs of this Regulatory Agreement are inserted solely as a matter of convenience of the parties hereto, and for reference, shall not be deemed to be a part of this Regulatory Agreement, and shall not define, limit, extend or describe the scope of this Regulatory Agreement nor be used or construed in the interpretation or determination of the validity of this Regulatory Agreement or any provision hereof. IN WITNESS WHEREOF, the City of Tustin and the Developer have executed this Regulatory Agreement and Declaration of Restrictive Covenants by duly authorized representatives, all as of the date first written above. -20- CITY OF TUSTIN: Dated: By: William A. Huston, City Manager TUSTIN COMMUNITY REDEVELOPMENT AGENCY By: William A. Huston Executive Director APPROVED AS TO FORM By: Doug Holland, City Attorney -21- DEVELOPER: TUSTIN COVENTRY SENIORS, LP, a California limited partnership By: TUSTIN COVENTRY SENIORS, LLC, a California limited liability company Its: Administrative General Partner By: Kasey Burke Title: Manager By: Title: -22- EXHIBIT A LEGAL DESCRIPTION PROJECT SITE That certain real property located in the City of Tustin, County of Orange, State of California, and legally described as follows: Lot 265 of Tract No. 16581, in the City of Tustin, County of Orange, State of California, as shown on the map recorded in Book 877 Pages 33 through 50 inclusive Miscellaneous Maps, in the office of the county recorder of Orange County. Excepting therefrom all oil, oil rights, mineral rights, natural gas rights, and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the parcel of land hereinabove described, together with the perpetual right of drilling, mining or exploring and operating therefore and storing in and removing same from said land or any other land, including the right to whipstock or directionally drill or mine from lands other than those hereinafter described, oil or gas wells, tunnels and shafts into, through or across the subsurface of the land hereinabove described, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and operate any such wells or mines without, however, the right to drill, mine, store, explore or operate through the surface or the upper 500 feet of the subsurface of the land, as reserved by Moffett Meadows Partners, LLC, by deed recorded July 25, 2005 as Instrument Nos. 2005000590846, 2005000591024 and 2005000591381, all of Official Records. EXHIBIT B GLOSSARY OF DEFINED TERMS For purposes of this Regulatory Agreement, the following initially capitalized terms shall mean the following: "Act" means Chapter 8 (commencing with Section 33750) of Part 1 of Division 24 of the Health and Safety Code of the State of California, as amended. "Affordable Housing Agreement" shall mean the agreement entered into between the Developer and City as required by the Housing Agreement which identified specific restrictions to insure affordability of rental and for-sale Affordable Housing Units at Tustin Legacy and as required by the Regulatory Agreement. "Affordable Housing Units" means the units to be rented to, occupied by or held available for Very Low, Lower or Moderate Income Households at an Affordable Rent as described in Section 3 and in the Regulatory Agreement. "Affordable Rent" shall mean for any for-rent Affordable Housing Unit, a maximum monthly rent or lease price that does not exceed the Affordable Rent for a Very Low Income Household, a Low or Lower Income Household, or a Moderate Income Household, as specifically applicable. The Affordable Rent shall be calculated as of the date of rent of the unit and shall take into account and include a reasonable allowance for utilities and in an amount not in excess of: (a) For "Very Low Income Units," as more particularly defined in Health and Safety Code Section 50053 (b)(2) and as generally described herein as a monthly rent which does not exceed one-twelfth of the product of thirty percent (30%) times fifty percent (50%) of the annual Orange County Median Income, adjusted for family size appropriate for the unit, including a reasonable utility allowance. (b) For "Low or Lower Income Units," as more particularly defined in Health and Safety Code Section 50053 (b)(3) and as generally described herein as applicable to those low income or Lower Income Households whose gross incomes exceed the maximum income for Very Low Income Households as the product of thirty percent (30%) times sixty percent (60%) of the annual Orange County Median Income, adjusted for family size appropriate for the units, including a reasonable utility allowance. (c) For "Moderate Income Units," as more particularly defined in Health and Safety Code Section 50053 (b)(4), and as generally described herein as the product of thirty percent (30%) times one hundred and ten percent (110%) of the annual Orange County Median Income adjusted for family size appropriate for the units, including a reasonable utility allowance Notwithstanding the foregoing, in accordance with Health and Safety Code Section 50053 (b) (4), the City has determined and hereby agrees that, for a Moderate Income Household with annual gross incomes that exceed one hundred and ten percent (110%) of the annual Orange County Median Income, adjusted for family size appropriate for the unit, a maximum monthly rent shall be calculated as not to exceed one twelfth of thirty percent (30%) times one hundred and twenty percent (120%) of the annual Orange County Median Income, adjusted for family size. "Certificate of Continuing Program Compliance" means the annual report of occupancy for the Affordable Housing Units including the verification of income provided by Developer to Agency as described in Section 3.10.6 hereof or such other form as may be prescribed by the Agency. "Completion Certificate" means the notice of completion of construction filed by Developer, a copy of which shall also be concurrently delivered to the City and Agency by the Developer. "Developer" means Marble Mountain Partners, LLC, and its permitted successors and assigns. "Gross Income" means as it is defined by California Code of Regulations Title 25, §6914 as the anticipated income of a person or family for the twelve-month period following the date of determination of income. To make the projection, "a 'snapshot' of the household's current circumstances is used to project future income. Today's circumstances should be assumed to continue for the next 12 months unless there is verifiable evidence to the contrary. Income, as defined in §6914, shall include, but not be limited to: 1) The gross amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses: 2) The net income from operation of a business or profession or from rental or real or personal property (for this purpose, expenditures for business expansion or amortization of capital indebtedness shall not be deducted to determine the net income from a business); 3) Interest and dividends; 4) The full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts; 5) Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay (but see subdivision (b)(3)). 6) Public Assistance. If the public assistance payment includes an amount specifically designated for shelter and utilities which is subject to adjustment by the public assistance agency in accordance with the actual cost of shelter and utilities, the amount of public assistance income to be included as income shall consist of: a. The amount of the allowance or grant exclusive of the amount specifically designated for shelter and utilities, plus b. The maximum amount which the public assistance agency could in fact allow for the family for shelter and utilities, 7) Periodic and determinable allowances such as alimony and child support payments, and regular contributions or gifts received from persons not residing in the dwelling; and 8) All regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is head of the family or spouse (but see subdivision (b)(5)). The following items, as defined in §6914, shall not be considered as gross income: 1) Casual, sporadic and irregular gifts (includes casual, sporadic and irregular income under this exclusion); 2) Amounts which are specifically for or in reimbursement of the cost of medical expenses; 3) Lump-sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; 4) Amounts of educational scholarships paid directly to the student or to the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes of which are available for subsistence are to included in income; 5) The special pay to a serviceman head of a family away from home and exposed to hostile fire; 6) Relocation payments made pursuant to federal, state, or local relocation law; 7) Foster child care payments 8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; and 9) Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: a. National Volunteer Antipoverty Programs which include VISTA, Service Learning Programs and Special Volunteer Programs. b. National Older American Volunteer Programs for persons aged 60 and over which include Retired Senior Volunteer Programs, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience, Service Corps of Retired Executive (SCORE) and Active Corps of Executives (ACE). "Low Income or Lower Income Household" means Senior Citizen households whose annual gross incomes do not exceed eighty percent (80%) of the annual Orange Median Income with adjustments for smaller and larger families. The determination of a tenant's status as a Low or Lower Income Household shall be made by the Developer upon initial occupancy of a unit in the Project by such tenant and annually thereafter on the basis of a Verification of Income executed by the tenant. "Improvements" means those Project Improvements described in Housing Agreement on the Project Site and included in Approved Plans (the Scope of Development). "Low or Lower Income Units" means the units in the Project required to be rented to, occupied by, and held available for Low or Lower Income Tenants in accordance with the Affordable Housing Agreement and this Regulatory Agreement. "Moderate Income Household" means Senior Citizen households whose annual gross incomes do not exceed one hundred and twenty percent (120%) of the annual Orange County Median Income with adjustments for smaller and larger families. The determination of a tenant's status as a Moderate Income Household shall be made by the Developer upon initial occupancy of a unit in the Project by such tenant and annually thereafter, on the basis of a Verification of Income executed by the tenant. "Moderate Income Units" means the units in the Project required to be rented to, occupied by, or held available for Moderate Income Households in accordance with the Affordable Housing Agreement and this Regulatory Agreement. "Non-Complying Assisted Units" shall mean an Affordable Housing Unit which is occupied and/or leased in violation of Section 3 of the Restriction (excluding the units leased by any Eligible Tenant who loses eligibility between certification dates). Determination of such a violation may be based on information provided in the Annual Report or determined by City in its reasonable discretion based on information otherwise available to it. "Orange County Median Income and AMI" means the median family income for the Orange County Primary Metropolitan Statistical Area as most recently established by official annual publication of the Federal Department of Housing and Urban Development as published, modified and released by the State Department of Housing and Community Development. "Permitted Mortgage (Permitted Mortgagee)" means Developer's interim and permanent financing loan(s) for acquisition, development, and construction, as maybe approved by the City for the entire property and secured by a First Deed of Trust(s). "Project" means Project Site and Improvements including structures and related buildings and other Improvements to be constructed on the Project Site and all fixtures and other property owned by the Developer and located on, or used in connection with, such buildings, structures as described in the Scope of Development. "Project Site" means the real property legally described on Exhibit "A", which is attached hereto and by this reference incorporated herein, and all rights and appurtenances thereunto appertaining. "Program Administrator" means the Assistant City Manager or other representative of the City of Tustin and Tustin Community Redevelopment Agency as may be appointed by the City Manager and/or Assistant City Manager. "Senior Citizen" means persons age 55 and older. "Qualified Project Period" means the period beginning on the first day on which at least 50% of the residential units in the Project are completed and first occupied and ending on the date which is fifty-five (55) years after the date on which at least 50% of the residential units in the Project are completed and first occupied. "Verification of Income and Age Qualification" means the documentation obtained by the Developer from the Very Low Income Households, Lower Income Households and Moderate Income Households of the Verification of Income and age qualification described in Section 3.10 hereof or such other form as may from time to time be provided by the City to the Developer. "Very Low Income Household" means very low income Senior Citizen households whose gross annual incomes do not exceed fifty percent (50%) of the Orange County Median Income with adjustments for smaller and larger families. The determination of a tenant's status as a Very Low Income Household shall be made by the Developer upon initial occupancy of a unit in the Project by such tenant and annually thereafter, on the basis of a Verification of Income executed by the tenant. "Very Low Income Senior Citizen Units" means the units in the Project required to be rented to, occupied by, or held available for Very Low Income Households in accordance with the Housing Agreement and this Regulatory Agreement. EXHIBIT C SCHEDULE OF PERFORMANCE Milestones Date Site Acquisition August 2010 General Contractor Selection August 2010 Plan Check Submittals October 2010 December 2010 thru Jan. Building Permit Issued 2011 December 2010 thru Jan. Construction Start 2011 Construction Completion May 2012 Placed In Service June 2012 Occupancy of All Affordable Units January 2013 Occupancy of All Market Rate June 2013 Units <Attach Notary Certificates for all Signatories>