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HomeMy WebLinkAboutSA 02 FIRST AMENDMENTAgenda Item SA 2 Reviewed: '~ AGENDA ~;EPORT City Manager _, '~~ Finance Director ~/A. MEETING DATE: MARCH 20, 2Q12 TO: JEFFREY C. PARKER, CITY MANAGER FROM: CITY MANAGER'S OFFICE SUBJECT: FIRST AMENDMENT TO REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS AND FIRST AMENDMENT TO SUPPLEMENTAL REGULATORY AGREEMENT FOR THE TUSTIN LEGACY COVENTRY COURT PROJECT SUMMARY Authorization is requested for amendments to the Regulatory Agreement and Supplemental Regulatory Agreement for the Tustin Coventry Court Project at Tustin Legacy with Tustin Coventry Seniors, LP. RECOMMENDATION It is recommended that the City Council take the following actions: A. Approve and authorize the City Manager, or his designee, to execute the First Amendment to Regulatory Agreement and Declaration of Restrictive Covenants. B. Approve and authorize the City Manager, or his designee, to execute the First Amendment to Supplemental Regulatory Agreement. 2. It is recommended that the City Council Acting as the Successor Agency to the Tustin Community Redevelopment Agency approve and authorize the Executive Director, or his designee, to execute the First Amendment to Regulatory Agreement and Declaration of Restrictive Covenants. 3. It is recommended that the Tustin Housing Authority approve and authorize the Executive Director, or his designee, to execute the First Amendment to Regulatory Agreement and Declaration of Restrictive Covenants. FISCAL IMPACT There are no additional fiscal impacts anticipated beyond those identified in the original Regulatory Agreement and Supplemental Regulatory Agreement. Agenda Report March 20, 2012 Page 2 BACKGROUND On September 30, 2010, the City, the Tustin Community Redevelopment Agency and Tustin Coventry Seniors, LP. ("Developer") entered rota a Regulatory Agreement and Declaration of Restrictive Covenants ("Regulatory Agreement") and a Supplemental Regulatory Agreement ("Supplemental Regulatory Agreement") related to the anticipated issuance by California Statewide Communities Development Authority ("CSCDA") of multi-family revenue bonds for the development of one hundred fifty-three (153) very-low, low and moderate income affordable units within the senior citizen Coventry Court project at Tustin Legacy. On December 1, 2010, the Developer entered into a Regulatory Agreement and Declaration of Restrictive Covenants (State Regulatory Agreement) with CSCDA and Wells Fargo Bank, National Association as Trustee, relating to the issuance of 2009 Series A-8 Affordable Multifamily Housing Revenue Bonds to construct Coventry Court. The Developer subsequently entered into a First Amendment to the State Regulatory Agreement on January 1, 2011. In reviewing requirements set forth in the agreements executed between the City and the Developer and the Developer and CSCDA, an issue has arisen with conflicting requirements between the agreements and IRS guidance since tax credits are involved in the development. The issue is related to circumstances under which eviction of a tenant would be required or a requirement to increase rents that might be authorized after initial occupancy if a tenant's income eligibility changes over time. It has, therefore, become necessary to amend the Regulatory Agreement and Supplemental Regulatory Agreement to clarify when an affordable household, who is no longer income eligible for the unit they are occupying, is required to move. Section 3.7 of the Regulatory Agreement is being amended to add language further defining the circumstances as to when an affordable household is required to move. The passage of Assembly Bill 1 X 26 ("Dissolution Act") and AB 1 X 27 and the State Supreme Court's December 29, 2011 decision to uphold the Dissolution Act and to invalidate AB 1X 27 resulted in the Tustin Community Redevelopment Agency (Agency) becoming dissolved, effective February 1, 2012. On January 17, 2012, the City chose to become and serve as the "successor agency" to the dissolved Agency under the Dissolution Act. In addition, the City Council declined the assumption of housing assets and functions of the Agency and selected the Tustin Housing Authority to assume the assets and functions. The parties to the original Regulatory Agreement were the City, the Agency and the Developer. As a result of the Dissolution Act, an amendment is necessary to the Regulatory Agreement ("First Amendment to Regulatory Agreement") to modify the parties to include the City of Tustin, the City of Tustin Acting as the Successor Agency to the Tustin Community Redevelopment Agency, the Tustin Housing Authority and the Developer. The parties to the First Amendment to Supplemental Regulatory Agreement Agenda Report March 20, 2012 Page 3 will not change and will remain as the City and the Developer. Staff will be available to answer any questions the City Council may have. Christine A. Shingleton Assistant Executive Director Attachments: 1. First Amendment to Regulatory Agreement 2. First Amendment to Supplemental Regulatory Agreement CITY OF TUSTIN OFFICIAL BUSINESS DOCUMENT EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTIONS 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Clerk --- (Space above this line for Recorder's Office Use Only) FIRST AMENDMENT TO REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This FIRST AMENDMENT TO REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS ("First Amendment to Regulatory Agreement") is made and entered into as of March 20, 2012, by and among the CITY OF TUSTIN, a municipal corporation ("City"), and the CITY OF TUSTIN ACTING AS THE SUCCESSOR AGENCY TO THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY ("Successor Agency"), and the TUSTIN HOUSING AUTHORITY, a public body corporate and politic ("Authority" or "Successor Housing Agency"), and TUSTIN COVENTRY SENIORS, LP, a California limited partnership ("Developer"). Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings assigned to them in the hereinafter defined Regulatory Agreement. RECITALS A. City, Developer and the Tustin Community Redevelopment Agency, a public body, corporate and politic ("Agency"), entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of September 30, 2010 and recorded in the Official Records of Orange County on October 12, 2010 as Document No. 20 1 0-0005 1 4068 ("Regulatory Agreement"). B. Further, City, Developer and Agency entered into that certain Supplemental Regulatory Agreement and Declaration of Restrictive Covenants dated as of September 30, 2010 and recorded in the Official Records of Orange County on October 12, 2010 as Document No. 2010-000514067 ("Supplemental Regulatory Agreement"). C. The Agency was established as a community redevelopment agency that was previously organized and existing under the California Community Redevelopment Law, Health and Safety Code Sections 33000, et seq. {"CRL"), and previously authorized to transact business and exercise the powers of a redevelopment agency pursuant to action of the City Council ("City Council") of the City. D. The Authority is a housing authority pursuant to the California Housing Authority Law, Health and Safety Code Section 34200, et seq. ("HAL"). DOCSOC/1539560v4/200350-0003 E. Assembly Bill xl 26 added Parts 1.8 and 1.85 to Division 24 of the California Health & Safety Code, which laws cause the dissolution and wind down of all redevelopment agencies ("Dissolution Act"). F. On December 29, 2011, in the petition California Redevelopment Association v. Matosantos, Case No. 5194861, the California Supreme Court upheld the Dissolution Act and thereby all redevelopment agencies in California are subject to the Dissolution Act and were dissolved as of and on February 1, 2012. G. The Agency is now a dissolved community redevelopment agency pursuant to the Dissolution Act. H. By a resolution considered and approved by the City Council at an open public meeting an January 17, 2012 the City chose to become and serve as the "successor agency" to the dissolved Agency under the Dissolution Act. I. As of and on and after February 1, 2012, the City serves as the "Successor Agency" and will perform its functions as the successor agency under the Dissolution Act to administer the enforceable obligations of the Agency and otherwise unwind the Agency's affairs, all subject to the review and approval by aseven-member Oversight Board farmed thereunder. J, By a resolution considered and approved by the City Council at an open public meeting on January 17, 2012 pursuant to Section 34176 of the Dissolution Act, the City declined to assume the housing assets and functions of the Agency and selected the Authority to so assume such housing assets and functions, and on such date also pursuant to Section 34176 the Authority accepted and assumed the housing assets and functions of the Agency and as of February 1, 2012 became and serves as the "Successor Housing Agency" of the former Agency pursuant to the Dissolution Act. K. The Regulatory Agreement is an asset of the former Agency transferred and assumed by the Authority, and the Authority will act and perform the duties and obligations of the former Agency under the Regulatory Agreement and has all rights and benefits of the former Agency under the Regulatory Agreement subject to the provisions of the Dissolution Act, including Sections 34176 and 34181 thereof. L. The Regulatory Agreement provides that, in certain circumstances, apartment units in the Project must be rented at an Affordable Rent that is lower than the rent the Developer would otherwise be able to charge to tenants of such apartment units. M. City, Successor Agency, Authority, and Developer desire to enter into this First Amendment to Regulatory Agreement to limit the apartment units in the Project subject to such provisions, as more fully set forth herein. NOW THEREFORE, in consideration of the foregoing and the mutual covenants and undertakings set forth in the Regulatory Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows: 2 DOCSOCl1539560v4/200350-0003 2. Amendment to Section 3.7 of the Regulatory Agreement. (a) Section 3.7.I of the Regulatory Agreement is hereby amended to add the following sentence at the end of Section 3.7.1: "Notwithstanding the foregoing, the Developer's obligations pursuant to the preceding sentence shall apply only with respect to those Low Income Units (from among the 61 Low Income Units in Project) and Moderate Income Units (from among the S6 Moderate Income Units in Project) that contain the same number of bedrooms as the apartment unit occupied by the household no longer qualifying as a Very Low Income Household." (b) Section 3.7.2 of the Regulatory Agreement is hereby amended to add the following sentence at the end of Section 3.7.2: "Notwithstanding the foregoing, the Developer's obligations pursuant to the preceding sentence shall apply only with respect to those Moderate Income Units (from among the 56 Moderate Income Units in Project) that contain the same number of bedrooms as the apartment unit occupied by the household no longer qualifying as a Very Low Income Household." (c) Section 3.7.3 of the Regulatory Agreement is hereby amended to add the following sentence at the end of Section 3.7.3: "Notwithstanding the foregoing, the Developer's obligations pursuant to the preceding sentence shall apply only with respect to those Moderate Income Units (from among the 56 Moderate Income Units in Project) that contain the same number of bedrooms as the apartment unit occupied by the household no longer qualifying as a Low Income Household." (d) Section 3.7.4 of the Regulatory Agreement is hereby amended to add the following sentence at the end of Section 3.7.4: ``Notwithstanding the foregoing, the Developer's obligations pursuant to this Section 3.7.4 shall apply only with respect to those apartment units in the Project that contain the same number of bedrooms as the apartment unit occupied by the household no longer qualifying as a Very Low Income Household, Low Income Household or Moderate Income Household, as applicable." 3. Miscellaneous. (a) No Other Modifications. Except as amended by this First Amendment to Regulatory Agreement, the Regulatory Agreement shall remain in full force and effect. (b) Defined Terms. Capitalized terms not defined in this First Amendment to Regulatory Agreement shall have the meanings given to them in the Regulatory Agreement (or as applicable the Supplemental Regulatory Agreement.) (c) Recording and Filing. City, Successor Agency, Authority, and Developer shall cause this First Amendment to Regulatory Agreement to be recorded against the Property in the Official 3 DOC S OG 1539560v4/2o03 50-0003 Records of Orange County in conformity with Section 12 of the Regulatory Agreement and in accordance therewith Developer shall pay all fees and charges incurred in connection with such recording. (d) Governing_Law. This First Amendment to Regulatory Agreement shall be governed by the laws of the State of California. (e) Interpretation. In the event there is a conflict between the terms of the Regulatory Agreement and/or the Supplemental Regulatory Agreement and this First Amendment to Regulatory Agreement, the terms of this First Amendment to Regulatory Agreement shall control. References to "Regulatory Agreement" from and after the date that this First Amendment to Regulatory Agreement is recorded in the Official Records of Orange County shall mean and include the Regulatory Agreement as amended by this First Amendment to Regulatory Agreement. (f) Severability. If any provision of this First Amendment to Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this First Amendment to Regulatory Agreement shall not in any way be affected or impaired thereby. (g) Counterparts. This First Amendment to Regulatory Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument. (h) Cost Reimbursement. Pursuant to City Council Resolution No. 0&-60 that establishes the City's Comprehensive Schedule of Fees and as a condition precedent to execution and recordation of this First Amendment to Regulatory Agreement, Developer shall reimburse and pay to the City the actual costs and fees incurred by the City, Successor Agency, and/or Authority in connection with negotiation, preparation and completion of this First Amendment to Regulatory Agreement and any and all related documents far services provided by the City Attorney, Special Counsel, City, Successor Agency, and/or Authority staff, and outside consultant casts. jremainder of page left intentionally blank; signature page follows) 4 DOCSOG 1539560v4J2003 50-0003 IN WITNESS WHEREOF, City, Successor Agency, Authority, and Developer have executed this First Amendment to Regulatory Agreement by duly authorized representatives, all on the date first written above. ATTEST: CITY CLERK Pamela Stoker APPROVED AS TO FORM: WOODRUFF SPRADLIN & SMART David E. Kendig, Esq., City Attorney ATTEST: AUTHORITY SECRETARY Pamela Stoker APPROVED AS TO FORM: WOODRUFF SPRADLIN & SMART David E. Kendig, Esq., Authority Legal Counsel CITY: CITY OF TUSTIN, a California municipal; corporation By: Jeffrey C. Parker, City Manager or Authorized Designee AUTHORITY: TUSTIN HOUSING AUTHORITY, a public body, corporate and politic By: Jeffrey C. Parker, Executive Director or Authorized Designee 5 DOCSOC/ 1539560v4l2003 50-0003 [Signatures for continue on next page] By: ATTEST: CITY CLERK TO SUCCESSOR AGENCY Pamela Stoker APPROVED AS TO FORM: Stradling Yocca Carlson & Rauth, Special Counsel SUCCESSOR AGENCY: CITY OF TUSTIN ACTING AS SUCCESSOR AGENCY TO TUSTIN COMMUNITY REDEVELOPMENT AGENCY Jeffrey C. Parker, Executive Director or Authorized Designee DEVELOPER: TUSTIN COVENTRY SENIORS, LP, a California limited partnership By: Western Community Housing, Inc., a California nonprofit public benefit corporation, its Managing General Partner By: Graham Espley-Jones, President By: Tustin Coventry Seniors, LLC, a California limited liability company, its Administrative General Partner By: Kasey Burke, Manager 6 DOC SOC/ 1539560v4/200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2412, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in hislherltheir authorized capacity(ies), and that by hisfher/their signature(s) an the instrument the persons}, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOCSOC/ 1539560v4/200350-0003 STATE OF CALIFORNIA COUNTY OF On ss 2Q I2, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity{ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal} Notary Public D4C SOG 1539560v4/200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2012, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herltheir authorized capacity(ies), and that by his/herltheir signature(s) on the instrument the persons}, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOCSOC/ t 5395{Ov41200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2012, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the persons} whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/herltheir authorized capacity(ies}, and that by his/herltheir signatures} an the instrument the person(s), or the entity upon behalf of which the persons} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOCSOC/ 1539560v4/200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2012, before me, , Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/herltheir authorized capacity(ies), and that by his/herltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOC SOC/1539560v4/2003 50-0003 EXHIBIT A LEGAL DESCRIPTION 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 staring in and removing same from said land or any other (and, 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 ar across the subsurface of the land hereinabove described, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath ar 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. A-1 DOCSOC/ 1539560v4/200350-0003 CITY OF TUSTIN OFFICIAL BUSINESS DOCUMENT EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTIONS 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Clerk (Space above this line for Recorder's Office Use Only) FIRST AMENDMENT TO SUPPLEMENTAL REGULATORY AGREEMENT This FIRST AMENDMENT TO SUPPLEMENTAL REGULATORY AGREEMENT ("First Amendment to Supplemental Regulatory Agreement"} is made and entered into as of March 20, 2012, by and between the CITY OF TUSTIN, a municipal corporation ("City"} and TUSTIN COVENTRY SENIORS, LP, a California limited partnership ("Developer"}. Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings assigned to them in the hereinafter defined Supplemental Regulatory Agreement. RECITALS A. City, Developer, and the Tustin Community Redevelopment Agency, a public body, corporate and politic ("Agency"}, entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of September 30, 2010 and recorded in the Official Records of Orange County on October 12, 2010 as Document No. 2010-000514068 ("Regulatory Agreement"). B. Further, City and Developer entered into that certain Supplemental Regulatory Agreement and Declaration of Restrictive Covenants dated as of September 30, 2010 and recorded in the Official Records of Orange County on October 12, 2010 as Document No. 2010-000514067 ("Supplemental Regulatory Agreement"). C. The Regulatory Agreement is an asset of the Tustin Housing Authority, a public body corporate and politic, ("Authority"), which entity serves as the successor housing agency pursuant to Assembly Bill xl 26 as codified in Division 24, Parts 1.8 and 1.85 of the California Health and Safety Code ("Dissolution Act"). Pursuant to the Dissolution Act (i) the Agency became a dissolved redevelopment agency, (ii) the City elected to become, serve, and act as the "Successor Agency" to the former Agency, (iii} the Authority assumed the housing assets and function of the former Agency. The City, Authority, and Successor Agency, as applicable, will act and perform the duties and obligations of the former Agency under the Regulatory Agreement and has all rights and benefits of the former Agency under the Regulatory Agreement subject to the provisions of the Dissolution Act, including Sections 34176 and 34181 thereof. D. Of even date herewith the City, Successor Agency, Authority and Developer entered into that certain First Amendment to Regulatory Agreement and based on the provisions of that DOCSOC(1541582v2(2003 50-0003 amendment it is necessary for the City and Developer to amend the Supplemental Regulatory Agreement by this First Amendment to Supplemental Regulatory Agreement. E. City and Developer desire to enter into this First Amendment to Supplemental Regulatory Agreement cause the Supplemental Regulatory Agreement to track and follow the Regulatory Agreement as amended by the First Amendment to Regulatory Agreement. NOW THEREFORE, in consideration of the foregoing and the mutual covenants and undertakings set forth in the Supplemental Regulatory Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer hereby agree as follows: 1. Supplemental Regulatory Agreement to Track and Conform to Changes to the Re~ulatory Agreement as amended by First Amendment to Regulatory Agreement. Section 2 of Che Supplemental Regulatory Agreement is hereby amended and supplemented to incorporate and conform with all changes to the Regulatory Agreement as modified by the First Amendment to Regulatory Agreement and each all subsequent amendment to such Regulatory Agreement. Attachment No. 4 to the Supplemental Regulatory Agreement is the Regulatory Agreement and such attachment shall be deemed substituted and amended by the Regulatory Agreement as amended by the First Amendment to Regulatory Agreement. 2. Miscellaneous. (a) No Other Modifications. Except as amended by this First Amendment to Supplemental Regulatory Agreement, the Supplemental Regulatory Agreement shall remain in full farce and effect. (e) Defined Terms, Capitalized terms not defined in this First Amendment to Supplemental Regulatory Agreement shall have the meanings given to them in the Supplemental Regulatory Agreement (or as applicable the Regulatory Agreement, as amended.) (f) Recording and Filing. City and Developer shall cause this First Amendment to Supplemental Regulatory Agreement to be recorded against the Property in the Official Records of Orange County in conformity with the Supplemental Regulatory Agreement and in accordance therewith Developer shall pay all fees and charges incurred in connection with such recording. (g} Governing Law. This First Amendment to Supplemental Regulatory Agreement shall be governed by the laws of the State of California. (h} Interpretation. In the event there is a conflict between the terms of the Supplemental Regulatory Agreement and the First Amendment to Supplemental Regulatory Agreement, the terms of the First Amendment to Regulatory Agreement shall control. References to "Supplemental Regulatory Agreement" from and after the date that this First Amendment to Supplemental Regulatory Agreement is recorded in the Official Records of Orange County shall mean and include the Supplemental Regulatory Agreement as amended by this First Amendment to Supplemental Regulatory Agreement. (i) Severability. If any provision of this First Amendment to Supplemental Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the 2 DOCSOC/ 1541582v2/200350-0003 remaining portions of this First Amendment to Supplemental Regulatory Agreement shall not in any way be affected or impaired thereby. (j) Counterparts. This First Amendment to Supplemental Regulatory Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument. (k) Cost Reimbursement. Pursuant to City Council Resolution No. 08-60 that establishes the City's Comprehensive Schedule of Fees and as a condition precedent to execution and recordation of this First Amendment to Regulatory Agreement, Developer shall reimburse and pay to the City the actual costs and fees incurred by the City (and Successor Agency and/or Authority) in connection with negotiation, preparation and completion of this First Amendment to Supplemental Regulatory Agreement and any and all related documents for services provided by the City Attorney, Special Counsel, City staff (and Successor Agency and/or Authority staff), and outside consultant costs. (remainder of page left intentionally blank; signature page follows) DOC SOC/ 1541582v212003 50-0003 IN WITNESS WHEREOF, City and Developer have executed this First Amendment to Supplemental Regulatory Agreement by duly authorized representatives, all on the date first written above. By: ATTEST: CITY CLERK Pamela Stoker APPROVED AS TO FORM: WOODRUFF SPRADLIN & SMART David E. Kendig, Esq., City Attorney CITY: CITY OF TUSTIN, a California municipal; corporation Jeffrey C. Parker, City Manager or Authorized Designee DEVELOPER: TUSTIN COVENTRY SENIORS, LP, a California limited partnership By: Western Community Housing, Inc., a California nonprofit public benefit carporation, its Managing General Partner By: Graham Espley-Jones, President By: Tustin Coventry Seniors, LLC, a California limited liability company, its Administrative General Partner By: Kasey Burke, Manager 4 DOCSOC/ 1541582v2/200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2012, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in histher/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person{s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOCSOC(1541582v2/200350-0003 STATE OF CALIFORNIA COUNTY OF ss On 2012, before me, Notary Public, personally appeared ,who proved to me on the basis .of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public DOC SOC! l 541582v2/200350-0003 STATE OF CALIFORNIA COUNTY OF On ss 2012, before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capacity(ies), and that by his/herltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public (Seal) Notary Public DOCSOC/ 1541582v2l200350-0003 EXHIBIT A LEGAL DESCRIPTION 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 (and, 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. A-1 DOCSOC/ 1541582v2/200350-0003