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HomeMy WebLinkAbout01 DESIGN REVIEW 2012-002MEETING DATE: TO: FROM: SUBJECT: SUMMARY: Agenda Item 1 AGENDA REPORT Reviewed City Manager Finance Director JULY 17. 2012 JEFFREY C. PARKER, CITY MANAGER COMMUNITY DEVELOPMENT DEPARTMENT DESIGN REVIEW 2012 -002 AND CONDITIONAL USE PERMIT 2012 -06 FOR A NEW MIXED USE BUILDING AT 125 W. MAIN STREET Design Review (DR) 2012 -002 and Conditional Use Permit (CUP) 2012 -06 are requests to demolish an existing building and construct a new three story mixed use building consisting of restaurant/retail on the ground floor, office use on the second floor, and residential uses on the third floor with a request for an on -site parking exception at 125 W. Main Street. The project is located within the Central Commercial (C -2) zone with the Combining Parking (P) and Cultural Resources (CR) Overlay Districts. Approval of a Design Review is required for site planning and building design. Approval of a Conditional Use Permit is required for the establishment of a mixed use building, joint use parking, and sales of alcoholic beverages within the proposed restaurant. The parking agreement for a parking exception is also included for Council consideration (Applicant is Chris Miller of PMR Construction). On June 12, 2012, the Planning Commission approved Resolution No. 4197 recommending approval of DR 2012 -002 and CUP 2012 -06. RECOMMENDATION: That the City Council adopt Resolution No. 12-69 approving Design Review (DR) 2012- 002 and Conditional Use Permit (CUP) 2012 -06 authorizing the construction of a mixed - use development (restaurant, office and residential), joint use parking among the proposed uses, the sales of alcoholic beverages in conjunction with a restaurant use and parking exception and agreement for the project at 125 W. Main Street. FISCAL IMPACT: The proposed Conditional Use Permit and Design Review applications are applicant - initiated projects. There is no fiscal impact to the General Fund. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 2 ENVIRONMENTAL: This project is categorically exempt from further environmental review pursuant to the California Environmental Quality Act (CEQA) Section 15332, Class 32, "In -fill development projects." APPROVAL AUTHORITY: The property is located within the Central Commercial (C -2), the Combining Parking (P) and Cultural Resources (CR) Zoning Districts. The General Plan designation is Old Town Commercial, which allows for retail, professional office, and service- oriented business activities to serve Old Town and surrounding areas. Pursuant to the Tustin City Code, the proposed project requires approval of the following entitlements by the City Council following a recommendation by the Planning Commission: 1) Design Review — Pursuant to Tustin City Code Section 9272, a Design Review is required for site planning and design. According to Tustin City Code Section 9272, the Planning Commission is authorized to review and act on Design Review applications; however, because the Conditional Use Permit requires City Council approval, the Planning Commission reviewed the projects and provided a recommendation to the City Council to approve Design Review 2012 -002 and Conditional Use Permit 2012 -06. In addition, according to Tustin City Code Sections 9252j1, the City Council may establish design criteria and standards through issuance of a Certificate of Appropriateness on a case -by -case basis, for projects located within the Cultural Resources Overlay District. Therefore, the Design Review requires City Council approval, following a recommendation by the Planning Commission. 2) Conditional Use Permit — Pursuant to Tustin City Code Section 9252j3, a Conditional Use Permit is required to permit a non - listed use such as a mixed -use development (restaurant, offices, and residential). Further, the proposal includes a request for the sale of alcoholic beverages in conjunction with a proposed restaurant use and joint use parking. Tustin City Code Section 9233c1 (Uses Conditionally Permitted in TCC 9232b3) allows alcoholic beverage sales establishments subject to the provision set forth in Section 9271dd and Tustin City Code Section 9264a allows for parking facilities to be used jointly subject to the approval of a Conditional Use Permit. 3) Parking Exception and Parking Exception Agreement - Pursuant to TCC 93252J3(d) (Ordinance No. 1416), on -site parking requirements may be modified under one or a combination of provisions. Specifically, development proposed within both the Central Commercial District (C -2) and the Old Town Commercial General Plan land use designation (the commercial portion of Old Town Tustin), may satisfy all or a portion of the required number of on -site parking spaces through the payment of a fee, in an amount determined by a Fee Resolution upon a determination of the Tustin Planning Commission that the proposed project meets the following findings: CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 3 • The proposed project is an infill project located within the commercial district of Old Town. • That the proposed project is considered to be relatively small. • That the proposed project has incorporated building or site design enhancements that make it an outstanding addition to Old Town Tustin. • That the proposed project provides some onsite parking, but is aesthetically superior to one that provided all required parking on site. • That the project applicant shall agree to pay an annual fee for each public space not provided on site. • Other findings that may be adopted from time to time by the City Council including Resolution No. 12 -69 for Parking Exception Agreement. BACKGROUND: Project Site and Surrounding Uses The project site at 125 W. Main Street consists of two parcels (A Lot Line Adjustment to combine the two lots is being processed by the Engineering /Public Works Department) which front along Main Street and abuts an alley in the rear (Attachment A — Location Map). The existing warehouse building was built in 1946 and was previously utilized as an automobile repair and parts sales shop which was established in 1969. However, the use ceased and the building has been vacant for the past several years. The surrounding uses include retail uses to the north and east of the site, office and church uses to the west, and commercial and restaurant uses to the south across Main Street. PROP - >ITF Tustin Hardwan 1tS w M,,in Sr 791z rvnu.n wa.n Pxq. Old Town Tustin is an area centered around a group of historic buildings located on Main Street and El Camino Real which date back to the 1880s. Among the early businesses and structures in Tustin were a blacksmith shop, a combined grocery store /meat market, a business and feed store building, churches and school buildings. Throughout the history of Tustin, buildings have been reused and rebuilt. Several older buildings have been replaced with newer, more functional buildings which provide a much needed commercial opportunity and are more economically vibrant for the Old Town Area. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 4 �r Myr, JUICE co ��Mmlnft � - s Utt Juice Building Prospect Village For example, the former Utt Juice Company building was replaced by the mixed -use commercial, office and residential uses of Prospect Village at the corner of Main Street and Prospect Avenue. The new buildings have provided the opportunity for multi -level uses while encouraging walking and shopping in the Old Town Area. DISCUSSION: PROPOSAL The applicant, Chris Miller of PMR Construction, is proposing to replace the existing warehouse building which has been vacant for several years and was previously used as a machine shop and auto parts retail store with a new three -story mixed use building. The building is proposed to be situated fronting Main Street with restaurant and retail uses at the first level, office uses on the second level, and two residential units at the third level. The first floor area would open onto a new covered terrace area located on the west side of the building. This area may be used as a seating area for a restaurant or cafe use and includes an outdoor fireplace and landscaping as a buffer from the parking area which is located at the north side of the lot and is accessible from the alley which extends from Third Street to El Camino Real. The parking area, which is accessible from the rear alley, includes eleven (11) parking stalls, one of which is a tandem parking stall. The existing driveway along Main Street is proposed to be closed to accommodate the new building frontage. The proposal also includes a request for the sale of alcoholic beverages in conjunction with a proposed restaurant use, a joint use parking among the proposed uses, and a parking exception for required parking spaces not provided on the site. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 5 Site Plan /First Floor Plan DESIGN REVIEW Architecture The applicant has designed the building in a modern version of the neo- classical style which emphasizes simplicity and can be seen throughout Old Town along Main Street and El Camino Real. The proposed project includes a brick veneer along the Main Street frontage and a plaster finish both painted dark gray on the north, east and west elevations with a foam molding stucco finish at the flat -roof fagade. The first floor storefronts include operable and fixed glass swinging doors which are set back beneath canvas awnings fronting Main Street. The second level full - length vertical plate glass windows are accented by decorative wrought iron railings and topped with a brick band. The third -floor residential level provides a small deck area with decorative wrought iron railings and living area set back from the fagade. A decorative wrought iron trellis with climbing vines is proposed at the southwest comer of the building and a decorative wrought iron gate is proposed at the access point along the east side of the building. The side patio also includes raised planters and a focal -point fireplace located at the far north end of the patio. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 6 Floor Area Ratio and Building Mass The Old Town Commercial Land Use development intensity and density standards include retail, professional office and service- oriented business activities serving Old Town and the surrounding areas. This designation also includes high density residential. The maximum dwelling units per acre or maximum floor area ratio (FAR) for this designation is 1.0:1. The FAR or "intensity" refers to the degree of development based on building characteristics such as height, bulk, floor area ratio and /or percent of lot coverage. Floor area ratio is the relationship of total gross floor area of all buildings on a lot to the total land area of that lot expressed as a ratio. 0 ryN Sri ;„ iaa... RN h 15 II NT � N II N u El 0 0 ® 0 n • o The lot area for the project site at 125 W. Main Street is 10,832 square feet. The proposed floor area for the new three -story building is as follows: TABLE 1 First Floor Retail: 3,931 square feet Second Floor Office: 4,064 square feet Third Floor Residential: 2,837 square feet TOTAL: 10,832 square feet The project proposal is consistent with the floor area ratio of the Tustin General Plan with a total floor area ratio of 1.0:1. Old Town has a history of multi -level buildings located street front with retail and office uses. For example, the former First National Bank of Tustin building that was located at the corner of El Camino and Main Street was a multilevel building with ornate Italianesque design. It was demolished in the 1960's after earthquake damage and lack of funding for retrofit. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 7 'f ,4 yS i First National Bank of Tustin Prospect Village mixed use Several buildings in Old Town have been designed as three -story mixed uses including Prospect Village and 170 El Camino Real which was just completed. These buildings have a zero- setback along the front elevation and both include retail and residential uses. Table 2 The proposal for the new building at 125 W. Main Street will incorporate multiple uses and is designed consistent and compatible with existing historic and new buildings located in Old Town Tustin. The project proposal is consistent with the district site development standards. Overall, the height, setbacks, and massing of the building is consistent with existing and previous projects approved in Old Town. CONDITIONAL USE PERMIT A Conditional Use Permit is required to authorize the construction of a mixed -use development (restaurant, office and residential), joint use parking among the proposed uses, the sale of alcoholic beverages in conjunction with a restaurant use and parking exception for the project. Mixed Use The proposal for mixed use which include a restaurant/retail on the first floor, office use on the second floor and residential units on the third floor requires approval of a Conditional Use Permit for a use that is consistent with and compatible to surrounding uses. Height Front Rear Yard Side Yard Lot FAR Setback Setback Setback Coverage Required 50' max Zero Zero Zero 100% 1:1 Proposed 39'8'/x" Zero 31' and 82' Zero (east) 36% 1:1 to alley and 20 ft west The proposal for the new building at 125 W. Main Street will incorporate multiple uses and is designed consistent and compatible with existing historic and new buildings located in Old Town Tustin. The project proposal is consistent with the district site development standards. Overall, the height, setbacks, and massing of the building is consistent with existing and previous projects approved in Old Town. CONDITIONAL USE PERMIT A Conditional Use Permit is required to authorize the construction of a mixed -use development (restaurant, office and residential), joint use parking among the proposed uses, the sale of alcoholic beverages in conjunction with a restaurant use and parking exception for the project. Mixed Use The proposal for mixed use which include a restaurant/retail on the first floor, office use on the second floor and residential units on the third floor requires approval of a Conditional Use Permit for a use that is consistent with and compatible to surrounding uses. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 8 Other mixed uses have recently been approved within the Old Town area of Tustin. These include the property at 170 El Camino Real (retail, office and residential) and Prospect Village (retail, service and restaurant uses, office and residential). This proposal is consistent with the proposal in the surrounding area and is anticipated to bring economic vitality to the area with the design and uses. Alcoholic Beverage Sales The proposal for the project includes a restaurant use on the first floor with adjacent outdoor seating area on the west side of the buildings. In accordance with Tustin City Code, the establishment of on -site sale of alcoholic beverages in conjunction with a restaurant requires approval of a Conditional Use Permit. The restaurant is subject to the City's Alcoholic Beverage Sales Establishment Guidelines which provide specific requirements for a bona -fide restaurant use. The proposal for restaurant use with alcoholic beverage sales is consistent with other restaurant uses in the Old Town area. Findings to support the use and conditions of approval to ensure consistency with the City's Guidelines and Tustin City Code requirements have been provided in Resolution No. 12-69 (Attachment F). Parking Exception /Joint Use Parking Ordinance No. 1416 sets forth parking exceptions for the commercial portion of the CR District. This Ordinance provides an exception to the on -site parking requirements under one or a combination of provisions. The applicant has provided a parking exception request (to pay fees for a portion of the parking not provided on- site), along with a shared parking study for a joint use of parking facilities for the proposed project. The parking study was conducted to determine the adjusted parking demand based on a shared parking analysis of the proposed uses (Attachment C). The proposed mixed -use development includes a retail and /or restaurant use (3,931 sq. ft.) on the first floor, professional offices (4,064 sq. ft.) on the second floor, and two residential units (2,836 sq. ft.) on the third floor. The parking lot of the proposed project provides 11 panting spaces including one tandem space which is accessed through the existing alley at the rear of the project site. The parking study provided a time -of -day analysis which considered the impact of parking demand based on a 30% reduction of the City's off - street parking requirements in order to factor in walk -in trips and other common parking areas as well as on- street parking. The study indicates that a restaurant use on the first floor, office use on the second floor and residential on the third floor would require 31 parking spaces. In this scenario, an additional 20 spaces are required. In accordance with Ordinance 1416, TCC Section 93252J3(d)(3)(d) allows a parking exception for on -site parking requirements for development proposed within both the Central Commercial District (C -2) and the Old Town Commercial General Plan land use designation of the commercial portion of Old Town Tustin. All, or a portion of, the required number of on -site parking spaces may be satisfied through the payment of a fee, in an amount determined by Fee Resolution of the City Council, upon a CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 9 determination that the proposed project meets specific findings. The applicant has opted to pay for 20 parking stalls at $60 per space annually in lieu of providing parking spaces on -site. Participation in the City's program will require an annual fee of $1,200 which reimburses the City for parking maintenance fees (as determined by City Council Resolution No. 12 -27). A parking agreement has been drafted and is attached hereto in Exhibit D for City Council consideration. Table 3 shows the following: (1) the required findings necessary to authorize the parking exception, (2) indicates whether it meets the intent of the finding, and (3) supporting comments based on staff's analysis of the project. TABLE 3 Finding required Meets Intent Comment The proposed project is an Yes The project is located within infill project located within the the Central Commercial Commercial District of Old District (C -2) and the Old Town Town. Commercial General Plan land use designation. That the proposed project is Yes The project site is less than a considered to be relatively quarter of an acre. small. That the proposed project has Yes The project incorporates high incorporated building or site quality materials and design enhancements that enhancements including a full make it an outstanding brick veneer and plaster finish addition to Old Town Tustin. painted dark gray with foam molding stucco finish at the flat -roof fagade, storefronts with operable and fixed glass swinging doors set back beneath canvas awnings, and second level full - length vertical plate glass windows accented by decorative wrought iron railings. That the proposed project Yes The project provides 11 on -site provides some onsite parking, parking stalls which are but is aesthetically superior to accessed from the rear alley one that provided all required allowing the lot frontage to be parking on site. developed with a high quality multi -use building. That the project applicant Yes As a condition of approval, the shall agree to pay an annual applicant shall agree to pay an fee for each public space not annual fee for parking not provided on site. rovided on -site. Other findings that may be Yes The Old Town Parking adopted from time to time by Exception Fee was established the City Council. at $60 per space through City Council Resolution No. 12 -27. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 10 The parking exception for this project is consistent with the City's goal of introducing customer - attracting commercial uses, replacing underutilized and vacant parcels, generating jobs, increasing the number of persons shopping and working in Old Town Tustin, and fostering economic development of the surrounding areas. Furthermore, the City has prepared the Old Town Parking Study that concluded that there is a significant amount of available parking in the area. Therefore, the recommendation to waive on -site parking requirements can be considered appropriate for this proposal. FINDINGS In determining whether to recommend approval of the Conditional Use Permit and Design Review for the project, the City Council must determine whether or not the proposed use will 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; and that the location, size, architectural features, and general appearance of the proposal will not impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole. A decision to approve this request may be supported by the following findings: 1) The project is consistent with and compatible to the Old Town uses in that the proposal is similar to other mixed uses which have recently been approved within the Old Town area of Tustin and is anticipated to bring economic vitality to the area with the design and uses. 2) The subject site is located along the Main Street in the center of Old Town and has remained unoccupied for the past several years. The proposed building massing, orientation, and architecture of the new mixed use building will serve to enhance the subject site and augment the Old Town commercial district. 3) The restaurant use is consistent with uses in the Old Town area where a variety of retail, office, and restaurant uses are located. The proposed hours of operation are limited until 11:00 PM on weekdays and 12:00 AM on weekends. The characteristics of the restaurant use and hours of operation of the restaurant would be similar to other restaurants in the center and in the vicinity. 4) The restaurant will provide sit -down meals typical of restaurant uses. Bona fide restaurants with on -site alcoholic beverage sales are exempt from distance separation requirements to residential uses, sensitive uses and other alcoholic beverage sales establishments. 5) The on -site consumption of alcoholic beverages would be in conjunction with a restaurant where food will be served at all times when alcoholic beverages are served. 6) The proposed sale of on -site alcoholic beverages in conjunction with an existing restaurant use is allowed within the C -2 zoning district with the approval of a Conditional Use Permit. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 11 7) As conditioned, the proposed on -site consumption of general alcoholic beverages is consistent with the Alcoholic Beverage Sales Establishment Guidelines as amended by the Planning Commission and adopted by the City Council on May 21, 2001. 8) The Tustin Police Department has reviewed the application and has no immediate concerns. 9) The City's Public Works Department, Police Department, Building Division and the Orange County Fire Authority have reviewed and support the development of the proposed project, as conditioned. 10) The proposed structures and associated improvements are harmonious with the highest standards of improvements in the surrounding area and Tustin community. The location, size, architectural features, and general appearance of the proposed development will not impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole in that: a. Height, bulk, and area of buildings: The proposed height of the three -story structure is within the maximum permitted height in the zoning district. The height and bulk of the building also hold the street edge well and help to create a well- defined streetscape along Main Street. b. Setbacks and site planning: The site design was oriented to maximize the street frontage by locating the building at the front property line with access and parking located behind the building. The uses such as the parking lot, and trash enclosure have been oriented away from Main Street. C. Exterior materials and colors: The proposed materials (brick, stucco, wrought iron, glass, and wood) are of a high quality, will serve to enhance the architecture of the building, and are compatible with the nearby commercial buildings in Old Town. The proposed color scheme will also accentuate the building's architecture and give a clean look to the fagade. The proposed brick veneer features a subdued gray color and flat stucco texture variation that will provide a modern dimension to the building. d. Type and pitch of roofs: The proposed flat roof with parapet and extended parapet walls create a modern version of the neo- classical style which emphasizes simplicity and can be seen throughout Old Town along Main Street and El Camino Real. e. Size and spacing of windows, doors, and other openings: The proposed building has been designed to reflect a classic Old Town commercial building with a contemporary emphasis using modern materials. The first floor storefronts include operable and fixed glass swinging doors which are set back beneath canvas awnings fronting Main Street. The second level full - length vertical plate glass windows are accented by decorative wrought iron railings and are topped with a brick band above. The third- CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 12 floor residential level provides a small deck area with decorative wrought iron railings and living area set back from the fagade. f. Landscaping, parking area design and traffic circulation: The parking area has been designed to accommodate access from the rear alley which eliminates the view of parked cars from Main Street. Landscaping has been incorporated throughout the parking area consistent with landscape requirements. A decorative wrought iron trellis with climbing vines are proposed at the southwest corner of the building and a decorative wrought iron gate is proposed at the access point along the east side of the building. The side patio also includes raised planters and a focal -point fireplace located at the far north end of the patio. g. Physical relationship of proposed structures to existing structures in the neighborhood: The proposed three story building is a stand -alone building that has been designed with a massing and form that is similar to other existing buildings in Old Town Tustin. Old Town has a history of multi -level buildings located street front with retail and office uses. The project will incorporate multiple uses and is designed consistent and compatible with existing historic and new buildings located in Old Town Tustin. 11) The Parking Study was conducted and the Study indicates that the proposed project could be supported with eleven (11) onsite parking spaces and twenty (20) off -site parking spaces located throughout Old Town Tustin and has been found to be consistent with Ordinance No. 1416 which allows all or a portion of a project's required on -site parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking based upon the Planning Commission's determination that the project meets the following findings: a. The proposed project is an infill project located within the commercial district of Old Town. b. The proposed project is considered to be relatively small. c. The proposed project has incorporated building or site design enhancements that make it an outstanding addition to Old Town Tustin. The proposed project provides some onsite parking, but is aesthetically superior to one that provided all required parking on site. e. The project applicant is conditioned to pay an annual fee for each public space not provided on site. CC Report July 17, 2012 DR 2012 -002 and CUP 2012 -06 Page 13 CONCLUSION: The proposed project is consistent with the proposal in the surrounding area and is anticipated to bring economic vitality to the area with the proposed design and uses. In addition, the project provides the opportunity for multi -level uses while encouraging walking and shopping in the Old Town Area. The Planning Commission considered the proposal and, on June 12, 2012, approved Resolution No. 4197 recommending approval of Design Review 2012 -002 and Conditional Use Permit 2012 -06. Therefore, staff recommends that the City Council adopt Resolution No. 12-69 (Attachment F) approving Design Review (DR) 2012 -002 and Conditional Use Permit (CUP) 2012 -06. Amy Stonich, AICP Elizabeth A. Binsack Senior Planner Director of Community Development Attachments: A. Location Map B. Land Use Fact Sheet C. Shared Parking Study dated March 22, 2012 D. Old Town Parking Agreement E. Submitted Plans F. Resolution No. 12 -69 ATTACHMENT A 111414 -Al IOUN TU City of Tustin CITY OF TUSTIN - [Created: 6/5/2012 2:53:12 PM] [Scale: 386.38] [Page: 8.5 x 11 / Portrait] Overview Map Legend Street Names 4 City Limits r� FVVY Railroad DRIVEWAY iJ HCRAINP ROW Easement Private Parcel Lines Street& Thin Map Display m m x SECOND ST. S. PROSPECT AV. 12.2 !AG — TUSTIN AREA SENIOR CENTER A y ADMIN. &DG. nr -- THIRD ST. r m _ L I' m r- m TUSTIN N y ZO PLAZA ST. (G) 2002.2 I I .Ga&Pri&sNEi — 13 01 13M / (C) 2002.2 GeoPriee.nel(GeoVec, Inc.)- (869)422-2505 ATTACHMENT B LAND USE FACT SHEET LAND USE APPLICATION FACT SHEET 1 LAND USE APPLICATION Conditional Use Permit 2012 -006 (CUP 2012 -006), Design NUMBER(S) Review 2012 -002 (DR 2012 -002), Lot Line Adjustment 2012 -002 (LLA 2012 -002) 2 LOCATION: Located on the north side of Main Street west of El Camino Real and east of C Street 3 ADDRESS: 4 LOT: TRACT 5 APN(S): 6 PREVIOUS OR CONCURRENT APPLICATION RELATING TO THIS PROPERTY: 125 W. Main Street, Tustin Lot 2 and Lot 3 793 401 - 573- 05,401- 573 -06 7 SURROUNDING LAND USES: North: Retail Commercial 8 SURROUNDING ZONING DESIGNATION: 9 SURROUNDING GENERAL PLAN DESIGNATION: 10 SITE LAND USE: 1 South: Retail and Restaurant Commercial East: Retail Commercial West: Church, office and commercial North: Central Commercial (C -2) Zoning and the Combining Parking (P) and Cultural Resources (CR) Overlay Districts South: Central Commercial (C -2) Zoning and the Combining Parking (P) and Cultural Resources (CR) Overlay Districts East: Central Commercial (C -2) Zoning and the Combining Parking (P) and Cultural Resources (CR) Overlay Districts West: Central Commercial (C -2) Zoning and the Combining Parking (P) and Cultural Resources (CR) Overlay Districts North: Old Town Commercial South: Old Town Commercial East: Old Town Commercial West: Old Town Commercial Existing: Vacant warehouse building (formerly auto parts sales /service) Proposed: Mixed Use (restaurant/retail, office and residential) LAND USE APPLICATION FACT SHEET General Plan: Old Town Commercial Zoning: C2 Central Commercial PROPOSED GP: Same PROPOSED ZONING: Same DEVELOPMENT FACTS: 11 SITE AREA 10,832 square feet 12 BUILDING LOT COVERAGE MAX. PERMITTED: 100% less parking and landscaping requirements, subject to general provisions PROPOSED: 36% 13 SITE LANDSCAPING 5% 14 OPEN SPACE: Less setbacks 15 PARKING 31 spaces based on parking demand with a 30% reduction of the City's off - street parking requirements (per TCC 93252J3(d)(3)(d)) PROPOSED: 11; Parking agreement with an annual fee of $1,200 which reimburses the City for parking maintenance fees (as determined by City Council Resolution No. 12 -27) 16 BUILDING HEIGHT: MAXIMUM: 50 feet PROPOSED: 40 feet 17 BUILDING SETBACKS REQUIRED PROPOSED FRONT: None Zero SIDE: None Zero east side & 20 ft west side REAR: None 31 ft and 82 ft to alley 18 OTHER UNIQUE CONDITIONS Abandoned alley in Block 14 of "A Portion of Tustin City' in the ASSOCIATED TO THE City of Tustin, County of Orange, State of California (10 ft wide x PROPERTY (I.E. SPECIAL 140 ft long along the west property line) STUDY ZONES, EASEMENTS, ETC.) 2 ATTACHMENT C SHARED PARKING STUDY DATED MARCH 22, 2012 Vn K2 TRAFFIC ENGINEERING, Inc. IKL ... , March 22, 2012 Chris Miller PMR Construction, Inc. 125 W. Main Street Tustin, CA 92780 Re: Shared Parking Study for Mixed Use Building 125 W. Main Street, Tustin Dear Chris, RECEIVEr` MAY 622012 COMMUNITY DEVELOPMENT BY: Per your request, we have conducted a shared parking study for the proposed mixed - use development. The purpose of this study is to determine the adjusted parking demand based on shared parking analysis of various land uses. PROJECT INFORMATION The site is located in the Central Commercial District (C -2) and the Combining Parking Overlay District (P) in the City of Tustin. The project plans to demolish the existing /vacant building and parking lot at 125 W. Main Street. The proposed mixed -use development includes a restaurant or retail store (3;931 sq. ft.) on the first floor, professional offices (4,064 sq. ft.) on the second floor, and two residential units (total 2,836 sq. ft.) on the third floor. The proposed parking lot provides 11 parking spaces including one tandem space. The site plan is shown in Exhibit 1, SHARED PARKING According to the Municipal Codes of the City of Tustin, off - street parking requirements for the project's land uses are show in Table 1. K2 Traffic Engineering, Inc. 1442 Irvine Elvd. Suite 235, Tustin. CA 92790 '1 .714- 832 -2116 F.949- 266 -5875 Email: kav Gk2tranic.com Shared Parking Study for Mixed- Use Bailding 125 W. Main Street, Tustin Table 1. Off - Street Parking Requirement March 22, 2012 Page 2 of 3 Central Commercial District C -2 Par inq Overla P Residential Land Use Restaurant Retail Office (Duplex) 1 space for each 1 space for each 1 space for each 2 spaces, within Off Street Parking 100 sq. ft. of 250 sq. ft. of 300 sq. ft. of a garage, for Requirement ross floor area gross Floor area gross floor area each unit Gross Floor Area 3,931 S . Ft. 3,931 S . Ft. 4,064 S . Ft. 2 Units Required Parking Spaces 39.3 15.7 13.5 4 SHARED PARKING ANALYSIS Shared parking considers a mix of several compatible land uses within close vicinity to a common parking area. The City of Tustin has encouraged mixed -use developments to make better use of the prevalently underused parking in Old Town. Exhibit 2 shows the shared parking analysis with time -of -day consideration of the project's land uses. For the first floor, both potential uses of restaurant and retail are included in the calculation. The calculation adapted a 30% reduction of parking demand to factor in walk -in trips and common parking in the project vicinity. For a retail store on the first floor, the site would require 22 parking spaces. For a restaurant use on the first floor, the site would require 31 parking spaces. SUMMARY Under -used public parking and roadside parking in Old Town are evident in the project vicinity. The proposed uses requires 22 and 31 parking spaces for retail and restaurant use on the first floor, respectively. The site provides 11 parking spaces including a tandem space. The project development appears fitting in the master plan that encourages mixed -use developments to make better use of the generally under - parked conditions in Old Town. Parking in -lieu fees may be required by the City or a Parking District in -lieu of providing privately constructed parking facility. K2 Traffic Engineering Inc. 1442 Irvine Blvd. Suite 210. Tustin. CA 92780 T.714- 832 -2116 F.949- 266 -5875 Email: kavnk2traffic.com Shared Parking Study for Mixed -Use Building March 22, 1011 125 W. Main Street, Tastin Page 3 of 3 However, the study suggests further discussions with the agencies to authorize applicable waivers of the fees. Regards, K22 Traffic Engineering, Engineering, Inc. Jende Kay Hsu, P.E., T.E. California License # TR2285 JENDE KAY HSU No, T2285 Exp.6 /30 12 rr�RAFF\�a? K2 Traffic Engineering inc 1442 Irvine Blvd. Suite 210. Tustin. CA 92780 F.714- 832 -2116 F.949- 2665875 Enwi1: ka0vk2trafticcotn li III Ar LL W Z xw .2 ea li III Ar LL W Z xw EXHIBIT 1 a81 R .2 --mop. m OvK 7:177-1-7 OTA." Ja, LW to Lr) oLL 0 c EXHIBIT 1 a81 R Exhibit 2. Shared Parking Analvsis P609O - Mixed Use Building Parking 125 W. Main Street, Tustin Land Use Without Shared Parking 2 o 2 N CL 2 N 2 2 (0 2 00 2 o With Shared Parkin Parking Reduction' Total Residential 3F Time-of-Day Factor 39.3 80% 60% 1 50% 80% 1 100%1100%1 39 100% 30% Parking Demand 4 1 3 1 2 1 2 3 1 4 J 4 1 4 44 13 31 ' Office (2F Time-of-Day Factor 100% 90% 100% 90% 1 25% 1 7% 1 1 Parking Demand 1 13.5 1 14 1 12 14 1 12 1 3 1 1 1 0 Retail (IF) Time-of-Day Factor 1 60% 1100%1100%1 90% 1 90% 1 80% 1 30% Parking Demand 15.7 9 16 16 14 14 13 5 1 1 30% BUILDING TOTAL 34 26 30 32 29 21 18 9 1 32 1 10 22 Alternative: Fine Dining 1F Time -of -Da Factor 15% 75% 65% 50% 95% 100% 95% Parki ng Demand 39.3 6 1 29 26 20 37 39 37 30% BUILDING TOTAL 57 23 1 43 42 35 44 44 41 44 13 31 ' ' Parking reduction includes walk -in trips and common parking within project vicinity ATTACHMENT D OLD TOWN PARKING AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Director of Community Development 300 Centennial Way Tustin, CA 92780 -3767 Space Above This Line For Recorder's Use Fee Exempt per Govt. Code Section 6103 CITY OF TUSTIN OLD TOWN PARKING EXCEPTION AGREEMENT This Old Town Parking Exception Agreement ( "Agreement "), dated this _ day of 2012 is entered into by and between the City of Tustin ( "City'), and PJ Jahangiri of Pacific Maintenance and Repair, Inc., owner of the property located at 125 W. Main Street, Tustin ( "Owner ") RECITALS WHEREAS, the Owner owns certain Property as more particularly described in Exhibit V to this Agreement, attached hereto and incorporated by reference as if fully set forth herein (the "Property "); and WHEREAS, Property is located within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C -2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council; and WHEREAS, the development planned for the Property (the development is hereinafter referred to as "Project ") requires a certain number of parking spaces to satisfy the off - street parking requirements of the City of Tustin Zoning Code in effect as of the date of this Agreement (hereinafter referred to as "Zoning Code "); and WHEREAS, on February 19, 2008, the Tustin City Council approved a comprehensive Parking Study for Old Town Tustin which determined that Old Town had a significant amount of available public parking and that modern parking standards were an impediment to the area's economic development; and WHEREAS, on April 3, 2012, the Tustin City Council adopted Ordinance No. 1416 establishing a new parking exception option in the Zoning Code, applicable to development in the commercial area of Old Town Tustin, that allows all or a portion of a project's required onsite parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking ( "Old Town Parking Exception "); and WHEREAS, Owner submitted an application for Design Review 2012 -002 and Conditional Use Permit 2012 -06 proposing development of the Property which included a proposal to utilize the Old Town Parking Exception, for twenty (20) parking spaces required by the Zoning Code, but which will not be provided onsite. WHEREAS, on June 12, 2012, the Tustin Planning Commission considered Design Review 2012 -002 and Conditional Use Permit 2012 -06, determined that the Project met certain findings established by Ordinance No. 1416, and adopted Resolution No. 4197 recommending approval of the Project and the use of the Old Town Parking Exception as satisfying the parking requirements set forth in the Zoning Code; and WHEREAS, on July 17, 2012, the City Council approved Resolution No. 12 -69 approving Design Review (DR) 2012 -002 and Conditional Use Permit (CUP) 2012 -06 to authorize the construction of a mixed -use development (restaurant, office and residential), joint use parking among the proposed uses, the sales of alcoholic beverages in conjunction with a restaurant use and parking exception and agreement for the project at 125 W. Main Street.. WHEREAS, Condition No. 1.9 of Resolution No. 12 -69 requires the Owner to execute and record an agreement requiring the payment of an annual fee in accordance with the Old Town Parking Exception for each Project parking space not provided onsite. WHEREAS, the Old Town Parking Exception program is granted as a privilege and not as a matter of right; and Page 2 of 11 WHEREAS, the execution of a valid written Agreement as described above, and the satisfaction of certain other conditions, would allow the Project on the Owner's Property to qualify for a Certificate of Occupancy upon completion of the Project; and NOW, THEREFORE, the City and the Owner hereby agree as follows: GENERAL PROVISIONS Section 1.00 Conferring Parking Exception to Owner Section 1.01 Location of Project Site The Project site is located at 125 W. Main Street, within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C -2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council, and as described in the legal description set forth in "Exhibit 1" hereof; Section 1.02 Designation of Parking Exception Spaces The City hereby designates twenty (20) parking spaces generally located within the Old Town commercial area as available for Parking Exception Spaces purposes for the uses proposed and approved for Design Review 2012 -002 and Conditional Use Permit 2012- 06. The final number of Parking Exception Spaces confirmed by this Agreement may be adjusted in accordance with Section 1.06, below. The City reserves the right to redesignate, by subsequent written notice to Owner, the location of the Parking Exception spaces. Section 1.03 Conferring of Parking Exception Spaces The City hereby confers all rights and obligations for use of the Parking Exception Spaces on the terms and conditions provided herein. In consideration thereof, the Owner agrees to the terms and conditions set forth in this Agreement. Section 1.04 Rights and Obligations Pertaining to Parking Exception Spaces. The City hereby provides, and the Owner hereby acknowledges, that the Parking Exception Spaces are being conferred on the Property in order to satisfy the parking Page 3 of 11 requirements for the specific use approved by Design Review 2012 -002 and Conditional Use Permit 2012 -06. Neither the Old Town Parking Exception program nor this Parking Exception Agreement grants Owner any right or privilege to use the Parking Exception Spaces greater than those rights and privileges enjoyed by the public generally. No property interest in the actual spaces themselves is being transferred, granted, or conveyed to Owner. In addition, the location of employee parking shall be determined by the City. Section 1.05 Parking Exception Spaces to Remain with the Property The convenants, terms, conditions, and restrictions of this Agreement shall be binding upon, and inure to the benefit of the Parties to this Agreement and their respective successors, representatives, heirs and assigns, and shall continue as a servitude running in perpetuity with the property. Owner agrees to notify the City in writing prior to any conveyance of the Property. Section 1.06 Adjustments to Number of Parking Exception Spaces In the event that the actual use of the Property requires a number of Parking Exception Spaces different from the number assigned by Section 1.01, then the actual number of Parking Exception Spaces conferred shall be agreed to in writing by the City and Owner as provided in Section 3.07 (Written Amendment). Section 1.07 Time for Obtaining Certificate of Occupancy The Owner shall have two (2) years from the date of this Agreement to obtain a n Certificate of Occupancy for the Project from the City of Tustin, unless the Director of Community Development extends such period in writing based on a finding that the delay was due primarily to factors outside the control of Owner. If a Certificate of Occupancy is not issued by the Community Development Department by this date, this Agreement shall terminate and all Parking Exception Spaces shall automatically revert to the City. A copy of the Certificate of Occupancy shall be appended to this Agreement and shall be recorded by the City. Page 4 of 11 Section 1.08 Use of the Property The Owner agrees to use and otherwise operate the Property in conformance with the Design Review 2012 -02 and Conditional Use Permit 2012 -006 and this Agreement. Section 2.00 Payments by Owner Section 2.01 Parking Exception Fee The "Parking Exception Fee" shall be the amount of $60.00 for each Parking Exception Space, per year, as may be modified at any time by Resolution of the Tustin City Council. The Parking Exception Fee shall be due and payable in full by July 15' of each year and every portion of a year when the Agreement is in effect and, therefore shall not be prorated. As an alternative, the City may arrange to collect the Parking Exception Fee through an annual assessment collected by the County Tax Assessor at the same time and in the same manner as County taxes are collected, and all laws providing for the collection and enforcement of County taxes shall apply to the collection and enforcement of the assessments. The Parking Exception Fee shall remain in effect until such time that the Parking Exception Spaces are no longer conferred by the City. The Owner or successor of interest shall not oppose and shall participate in any and all efforts by the City to establish a Vehicle Parking Assessment District or Business Improvement Area intended to supplement public parking in the area. Section 2.02 Amount of Parking Exception Fee to be paid by Owner Based upon the number of Parking Space Exceptions conferred by this Agreement, the Owner agrees to the following annual payments ( "Owner Payments "): $60.00 X 20 Parking Exception Spaces = $1,200.00 total initial annual payment. If the number of Parking Exception Spaces is ever adjusted pursuant to Section 1.06, then the total amount of Parking Exception Fees due shall be adjusted accordingly. Page 5 of 11 Said Owner Payments are due and payable as stipulated in Section 2.01. There shall be a late fee of twenty percent (20 %) for each month payment is not made in addition to any other collection fees for payments not received by the City by the due date set forth in this Agreement. Failure of the Owner to make payment of the annual Owner Payments installment by the due date shall be considered a default and shall entitle the City to exercise the remedies stated in Section 3.01. If County Assessor Owner Payment collection is not implemented as stipulated in Section 2.01, the City will send the Owner a written notice stating the amount of Owner Payments due, including any adjustment made by Resolution of the City Council, no less than thirty (30) days before the due and payable date for each annual Owner Payment. Such notice shall be provided to the Owner for the Owner's convenience only. Failure of the City to provide such notice does not relieve Owner from fulfilling its obligation to pay such Owner Payment. Section 2.03 Adjustments to Owner Payments As stipulated in Section 2.01, and pursuant to the Mitigation Fee Act (Government Code § 66001(a) et al), the Tustin City Council may modify the Parking Exception Fee at any time by Resolution of the Tustin City Council. Further, in accordance with Section 1.06 of this Agreement, the amount of Owner Payments may be increased or decreased to reflect the actual number of Parking Spaces required for the use of the Property. Section 3.00 Miscellaneous Provisions Section 3.01 Default In the event Owner materially defaults in any of its obligations hereunder, the City may declare a default and terminate this Agreement by written notice to the Owner. The notice shall specify the basis for the default. The Agreement shall terminate unless such default is cured before the effective date of the termination stated in such notice, which date shall be no sooner than twenty -one (21) days after the date of the notice. Upon termination, the Page 6 of 11 City may then take any action under the procedures then in effect to revoke Design Review 2012 -002 and Conditional Use Permit 2012 -06, Certificate of Occupancy, building permit or other authorization applicable to the Property if the parking requirements are not otherwise met. The City shall be entitled to retain all Owner Payments due to and through the termination date (and any applicable late fees). Section 3.02 No Assignment Other than any conveyance to a successor in interest to the Property, as set forth in Section 1.05, Owner shall not assign or transfer this Agreement or any rights hereunder without the prior written consent and approval of the City, which may be withheld in the City's sole discretion. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach by the Owner of its obligations under this Agreement. No assignment shall release the original parties or otherwise constitute a novation. Section 3.03 Proceeds of This Agreement All Parking Exception Fees collected shall be deposited into the General Fund for use in performing maintenance of the public right -of -way and parking facilities in the Old Town commercial area. Section 3.04 Attorney's Fees If any action at law or in equity is brought to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable costs and attorney's fees. Section 3.05 Laws Owner shall comply with all Federal, State and City laws applicable to the uses contemplated on the Property which is the subject of this Agreement. Section 3.06 Applicable Law Page 7 of 11 This Agreement, and the rights and duties of the parties hereunder (both procedural and substantive), shall be governed by and construed according to the laws of the State of California. Section 3.07 Written Amendment This Agreement may only be changed by written amendment signed by Owner and the authorized representative of the City, subject to any requisite authorization by the City Council. Any oral representations or modifications concerning this Agreement shall be of no force or effect. Section 3.08 Severability If any provision in this Agreement is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Agreement. Section 3.09 Choice of Forum The parties hereby agree that this Agreement is to be enforced in accordance with the laws of the State of California, is entered into and /or is to be performed in the City of Tustin and that all claims or controversies arising out of or related to performance under this Agreement shall be submitted to and resolved in a forum within the County or Orange at a place to be determined by the rules of the forum. Section 3.10 Duplicate Originals There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. Section 3.11 Time Time is of the essence in this Agreement Page 8 of 11 Section 3.12 Notices Any notice or demand to be given by one party to the other shall be given in writing and by personal delivery or prepaid first - class, registered or certified mail, addressed as follows. Notice simply to the City of Tustin or any other City department is not adequate notice. TO CITY: DIRECTOR OF COMMUNITY DEVELOPMENT 300 Centennial Way Tustin, California 92780 TO OWNER PJ Jahangiri PMR Construction 125 W. Main Street Tustin, CA 92780 Any such notice shall be deemed to have been given upon delivery, if personally delivered, or, if mailed, upon receipt or upon expiration of three (3) business days from the date of posting, whichever is earlier. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other party. Section 3.13 No Estate. Nothing contained in this Agreement, nor the acts of the parties hereto, nor the acts of any third party shall be deemed or construed to create the relationship of principal and agent, or a partnership, or a joint venture, or of any association between the parties to this Agreement. Owner agrees that it will not claim at any time any vested right, property right, interest, title, leasehold, or estate in the Parking Space Exceptions or the public parking within the Old Town commercial area by virtue of this Agreement or by virtue of Owner's occupancy, use or expenditures under this Agreement. Section 3.14 Destruction of Premises The Owner and City agree that, if the Project approved by Design Review 2012- 002 and Conditional Use Permit 2012 -06 is ever wholly or partially destroyed, and the Project is considered conforming, the Project may be rebuilt and the provisions of this Agreement shall remain in full force as described herein. In the event that the Project approved by Design Page 9 of 11 Review 2012 -002 and Conditional Use Permit 2012 -06 is considered a legal, nonconforming structure, any reconstruction shall be governed by the City's nonconforming provisions of the Tustin City Code. If either the City or the Owner determine that the destroyed Project cannot or will not be rebuilt, then either party may terminate this Agreement by 15 days written notice to the other. As of the date of termination, the Parking Exception Spaces shall no longer be used by the Owner to meet any Zoning Code requirement or to support the parking requirement underlying Design Review 2012 -002 and Conditional Use Permit 2012 -06, Certificate of Occupancy, or other permit. Upon such termination, neither Owner no City shall have any liability to the other, either on account of the unavailability of the Project or the unavailability of the Parking Exception Spaces. The liability of the Owner for payments properly due prior to termination shall survive any termination of this Agreement pursuant to this paragraph. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below. DATED: ATTEST: Pamela Stoker City Clerk APPROVED AS TO FORM: la CITY OF TUSTIN Jeffrey C. Parker City Manager M PJ Jahangiri (For 125 W. Main Street) Page 10 of 11 David E. Kendig City Attorney EXHIBIT 1 All that certain real property situated in the County of Orange, State of California, described as follows: PARCEL 1: Lots 3 and 13 in Block 14 of "A Portion of Tustin City" together with the East half of the 20.00 foot alley abutting said Lots 3 and 13 on the West, lying Southerly of the Westerly prolongation of the South line of the Northerly 10.00 feet of said Lot 3, all in the City of Tustin, County of Orange, State of California, as per map recorded in Book 4, Pages 218 and 219 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California. Except the East 10.00 feet of said Lot 13. Also except the North 10.00 feet of said Lot 3. Also except the East 100.00 feet of said Lot 3. PARCEL 2: Lot 2 and the East 10.00 feet of Lot 13 in Block 14 of "A Portion of Tustin City", in the City of Tustin, County of Orange, State of California, as per map recorded in Book 4, Pages 218 and 219 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California. Except the North 10 feet thereof. Also except the East 10 feet of Lot 2. Assessor's Parcel Number: 401 - 573 -05 and 401 - 573 -06 Page 11 of 11 ATTACHMENT E SUBMITTED PLANS Angeleno Associates, Inc. ,acgrwall SV&A.,aGros MV9"WWASM T*M4W e P E R S P E C T I V E R E N D E R I N G T U S T I N M I X E D U S E B U I L D I N G 1 2 5 W M A IN S T TUSTIN, CALIFORNIA FOR: P MR CONSTRUCTION, INC. 1110441m M A T E R I A L L E G E N D O FlAL SMR VENHEER. PARTED IOARK GMh O EXTERIOR RASTER -DARK GRAY O FOAM MOULDING STUCCO FINRH. GRAY TO NATUI STUCCO Q PRECASTSVRROLNO O STOREFRIXR- OPERABLE ANO FVED- lWWNEER' OR EOVAL O WRDOWS�E ❑r KT= SHUTTER WITH OECOGKTNE WROUGHT IRON NAROWARE O CANVAS AWNING WRH WROUGHT IRON SUPPORT BRACKET +� WROUGHT IRON FAILING- WROUGHT IRON LATTICE- D WROUGHTIRON RATE O METAL TRELL6 WTH POST, BE. 6 CRQSB MEMSERS O BRICK BAND O BRICK GAP O BRICK SILL o UGHT1.RE '❑ SIGN AREA L E F T E L E V A T I O N Angeleno Associates, Inc. 147 City Place Ali+e, Santa Ana, Ca 9270.5 ..aV*mwdda0.cmn Tat (714) 2W8% 1101 N11© Angeleno kaodBi Inc. R E A R E L E V A T I O N 0 4' 16' 2' 2' A' T U S T I N M I X E D U S E B U I L D I N G 125 W. MAIN, TUSTIN R I G H T E L E V AT I ON OWNER: P M R Construction Inc. 04.27., 2 T H I R D F L O O R P L A N R E S I D E N T I A L A R E A 2, 8 3 7 s f h 4 Angeleno Associates, Inc. 147 City Place Drive, Santa Ana, Ca 92705 ..VQWKoud� Td: 1714PBa 1818 1101 2011© Ng*w Acmden Im. S E C O N D F L O O R P L A N O F F I C E A R E A 4, 0 6 4 s f T U S T I N *LP F I R S T F L O O R P L A N 0� 4' 16 RETAIL AREA 3, 9 3 1 s f 2' 8' M I X E D U S E B U I L D I N G 125 W. MAIN, TUSTIN I_ MAIN ST. 2 S 3.931 SF a.. SF 837SF 10..2 SF 3,931 SF12W - 15.72 SPACES 4OS9 S'm- 13.55 SPACES 2,S37SF 4.W SPACES l2 W UM1 TOTAL: 33273PACES 30 SPACES REWIRED LDTOWN HCE: 10 SPACES PROVIDED 11 TANDEM SPACE NOT( OWNER: P M R Construction Inc. 04.27.12 IANDSC E MCHREC M MD]A Pl NNING DESIGN ALLEY P R E L I M I N A R Y L A N D S C A P E P L A N 0 2' B' m6rm%� 1' 4' TUSTIN MIXED USE BUILDING 125 W. MAIN, TUSTIN OWNER: P M R Construction Inc. 4.27.12 41 N A R Y L A N D S C A P E P L A N 0 2 8' m6pm%� 1' 4' MIXED USE BUILDING 125 W. MAIN, TUSTIN OWNER: P M R Construction Inc. 4.27.12 i D e Z U N u p F rql H 125 W. MAIN STREET TUSTIN, CALIFORNIA CONCEPTUAL GRADING PLAN 1 rtONNANS,_, al SECTION 'C' 1A6 °D 2 JOi /6 D r fn S (ax) ii0.ri u o [; a IM v Fyp 61 6e 0E1 IS SICINI n MAP LfX ENO A' ASPIG/SCO.X'RLTE WBIE EL. ex mnouo£Lwvlwa•x E. Sr. M' MGLTOMGFR'.VJ. CCONSTRUCNON4NOTES: cR carte /eavry QI roc MITTEN, Q [wsmrtr wart nwnnr nm nnD� rtt uq. auu LY fG {IFi EOh PNFJ[FA] F/MSHEOGRADE p !'/' FIMSHEO F]ODR QQ [ [s tun - v2 xodl E, STICIANDS, ITS • xma FL hll' Q q n 1 d u¢ x m[ [ww[rt nwn•r ra T[O�ms ur•s fT £1/ FINRIIlD.4 /RtiKC kIRE IIYDRAM' '+m ntrzn asxr la sqt[ •5 Q ew GM f. q.UIEflRGU" •5 x D 1r HIS w [ o[[I wa /p. a u M S{. 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CALMONA,A PER OF 'A REMITTED IN BWN 4. F THE 218 AND 219 OF MSWCEILLANEWS RECORDS IN {NE OFFICE Of ME CWNTY RECORDER OF LOS ANGELES COUNTY, EXCEPT ME NORM TOM EEET THEREOF. AL50 EXCEPT THE EAST IOW FEEL OF LOT 3. ML vi Jl UIN I BENCH MARK: I AST I Cp1TRA1. PREPARED BY: PREPARED BY NOT : sA -DJR -W HAVTl W - E¢s 1MINTS CONCEPTUAL GRADING gNCELENO AND ASSOC ATES, INC PMR CpJSTRUCPp1 GAMBINO IS I.w IT xW ttp CpSmuc{Iw_ ST7T AINSIISS rcsana0 8 - MAND X OCTT µuu rrvu ta7 EYE PACE DRIVE 2109 SE SKY.T f ENGINEERING, INC MY 0.m N[aS¢o{yµ p xAils Ax ARx qY STATISTICS SA -JM -W IF M [ SANTA ANA, CA 92705 SANTA ANA, CA 9$JOS µO15 E LRr ¢ {AAS [d P+A?x1 I25 W. MAIN STREET 91EEL 1 OF 1 SOUTH IT COMPLY 8 FWT • FCOi CATCH yr �'W 1•m °RW D CT'SIRO<Rp. AXIN uwu LOCATED THE NOR RsT CHRISTINE LY, Ala CHITS MILLER a /x15 mE WTERSECOM 'C 5R[[i Axo T1RSi RrKxggppy OFT COVC[➢O1AL MATING SCAlE: 1'�8' DRAW BY. FG CxECNEO BT: STPE, HE QEr HOiMCTE E ¢HTEROHE aF TIHSr (71e) zas -tePE (>t A) 7sa -on9 I N°°' CA RM SIT. MOIST 1CC[SSARr SONY AND T a GENE CExrt1111xE ¢ •c• ExgnR[Ex Ti AND RAxNNG OEFARnExr LEVEL TMEr NIH ME SCCVAAK r.L 171.1 A.9 -n1a n. tnq ..a -1w. APmwus rLON THE ILY ¢ LDSRx. CITY OF TUSTIN, CA ® IM 74' 4ICBIID w 50p3l5, 4 R c H I TECTURAL IMAGERY T U S T I N M I X E D U S E B U I L D I N G 1 2 5 W MAIN ST. TUSTIN, CALIFORNIA FOR: P M R CONSTRUCTION, INc. ❑ ,01 I TIP VIM - - I-L Brick Fmcing d Wrought iron Details Painted Brick Details at Adjment Historic Store Front ill Tustin Presbyterian Church PROJECT SITE 12S W Main St 1912 Tug. yam Tustin Hardware El Camino Real Allev S Prospect Are t 912 ® AIg818T10 * SO ft a mm k. R UrPO his Sass. G � E X I S T I N G C O N T E X T T U S T I N M I X E D U S E B U I L D I N G 1 2 5 W M A I N S T. TUSTIN, CALIFORNIA im P MR CONSTRUCTION, nc. ie 10 n ATTACHMENT F RESOLUTION NO. 12 -69 RESOLUTION NO. 12 -69 A RESOLUTION OF THE TUSTIN CITY COUNCIL APPROVING DESIGN REVIEW 2012 -002 AND CONDITIONAL USE PERMIT 2012 -06 AUTHORIZING THE DEMOLITION OF AN EXISTING BUILDING AND CONSTRUCTION OF A MIXED -USE DEVELOPMENT, JOINT USE PARKING AND A PARKING EXCEPTION AND AGREEMENT, AND SALES OF ALCOHOLIC BEVERAGES IN CONJUNCTION WITH A RESTAURANT USE FOR THE PROJECT AT 125 W. MAIN STREET LOCATED WITHIN THE CENTRAL COMMERCIAL (C -2) ZONING AND THE COMBINING PARKING (P) AND CULTURAL RESOURCES (CR) OVERLAY DISTRICTS. 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 2012 -002 and Conditional Use Permit 2012 -06 have been submitted by Chris Miller of PMR Construction, on behalf of PJ Jahangiri, property owner, requesting authorization to construct a mixed use project at 125 W. Main Street (APN 401 - 573 -05 and 401 - 573 -06); B. That pursuant to Tustin City Code Section 9272, a Design Review is required for site planning and design. According to Tustin City Code Section 9272, the Planning Commission is authorized to review and act on Design Review applications; however, because the Conditional Use Permit requires City Council approval, the Planning Commission considered and provided recommendation to the City Council for Design Review 2012 -002 and Conditional Use Permit 2012 -06. In addition, according to Tustin City Code Sections 9252j1 and 9252j3, the City Council may establish design criteria and standards and authorize a non - listed use, on a case -by -case basis, for projects located within the Cultural Resources Overlay District. Therefore, the Design Review will require City Council approval, following a recommendation by the Planning Commission; C. That pursuant to Tustin City Code Section 9252j3, a Conditional Use Permit is required to permit non - listed uses such as a mixed -use development (restaurant, offices, and residential). Further, the proposal includes a request for the sale of alcoholic beverages in conjunction with a proposed restaurant use and joint use parking. Tustin City Code Section 9233c1 (Uses Conditionally Permitted in TCC 9232b3) allows alcoholic beverage sales establishments subject to the provision set forth in Section 9271dd and Tustin City Code Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 2 Section 9264a allows for parking facilities to be used jointly subject to the approval of a Conditional Use Permit; D. That pursuant to TCC 9252J3(d) (Ordinance No. 1416), on -site parking requirements may be modified under one or a combination of provisions as set forth in the City Code. Specifically, development proposed within both the Central Commercial District (C -2) and the Old Town Commercial General Plan land use designation (the commercial portion of Old Town Tustin), may satisfy all or a portion of the required number of on -site parking spaces through the payment of a fee, in an amount determined by Fee Resolution upon a determination of the Tustin Planning Commission that the proposed project meets the certain findings; E. That the site is located in the Central Commercial District (C -2), Cultural Resources District (CR), and the Combining Parking District (P) and is consistent with the development standards of those districts; F. That Design Review 2012 -002 and Conditional Use Permit 2012 -06 was noticed, and considered, on June 12, 2012, by the Planning Commission at which time Resolution No. 4197 was adopted which recommended City Council approval of Design Review 2012 -002 and Conditional Use Permit 2012 -06; G. That the project was duly noticed, and considered at a public hearing on July 17, 2012, by the Tustin City Council; H. That the proposed project is consistent with the policies of the General Plan "Old Town Commercial' designation which allows for retail, professional offices and service - oriented business activities as well as residential uses which support this land use subject to the discretion of the City. The project has also been determined to be consistent with the Air Quality Sub - element; I. That the proposal for mixed use which include a restaurant/retail on the first floor, office use on the second floor and residential units on the third floor requires approval of a Conditional Use Permit by the Planning Commission for a use that is consistent with and compatible to surrounding uses. The project is consistent with and compatible to the Old Town uses in that the proposal is similar to other mixed uses that have recently been approved within the Old Town area of Tustin and is anticipated to bring economic vitality to the area with the design and uses; Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 3 J. That the establishment, maintenance, and operation of the proposed use will not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use, 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. The proposed sale of on -site alcoholic beverages in conjunction with an existing restaurant use is allowed within the C -2 zoning district with the approval of a Conditional Use Permit. 2. As conditioned, the proposed on -site consumption of general alcoholic beverages is consistent with the Alcoholic Beverage Sales Establishment Guidelines as amended by the Planning Commission and adopted by the City Council on May 21, 2001. 3. The on -site consumption of alcoholic beverages would be in conjunction with a restaurant where food will be served at all times when alcoholic beverages are served. 4. The restaurant will provide sit -down meals typical of restaurant uses. Bona fide restaurants with on -site alcoholic beverage sales are exempt from distance separation requirements to residential uses, sensitive uses and other alcoholic beverage sales establishments. 5. The restaurant use is consistent with uses in the Old Town area where a variety of retail, office, and restaurant uses are located. The proposed hours of operation are proposed to be limited for consistency with the City's policy on alcoholic beverage establishment hours of operation. The characteristics of the restaurant use and hours of operation of the restaurant would be similar to other restaurants in the center and in the vicinity. 6. The Tustin Police Department has reviewed the application and has no immediate concerns. K. That a Parking Study was conducted and the Study indicates that the proposed project could be supported with eleven (11) onsite parking spaces and twenty (20) off -site parking spaces located throughout Old Town Tustin and has been found to be consistent with Ordinance No. 1416 which allows all or a portion of a project's required on -site parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking based upon the Planning Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 4 Commission's determination that the project meets the following findings: 1. The proposed project is an infill project located within the commercial district of Old Town. 2. The proposed project is considered to be relatively small. 3. The proposed project has incorporated building or site design enhancements that make it an outstanding addition to Old Town Tustin. 4. The proposed project provides some onsite parking, but is aesthetically superior to one that provided all required parking on site. 5. The project applicant is conditioned to pay an annual fee for each public space not provided on site. L. The Old Town Parking Exception Fee was established at $60 per space through City Council Resolution No. 12 -27 and the applicant has requested a parking exception and agreed to pay an annual fee for spaces not provided on -site; M. That a Parking Exception Agreement has been prepared in accordance with Ordinance No. 1416 for City Council consideration and is attached hereto as Exhibit B; N. That in determining whether to recommend approval of the Design Review, the City Council must determine whether or not the location, size, architectural features, and general appearance of the proposed development will impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole. In making such findings, the Commission has considered at least the following items: 1. The subject site is located along Main Street in the center of Old Town and has remained unoccupied for the past several years. The proposed building massing, orientation, and architecture of the new mixed use building will serve to enhance the subject site and augment the Old Town commercial district. 2. The proposed structures and associated improvements are harmonious with the highest standards of improvements in the surrounding area and Tustin community. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 5 3. The City's Public Works Department, Police Department, Building Division and the Orange County Fire Authority have reviewed and support the development of the proposed project, as conditioned. 4. The location, size, architectural features, and general appearance of the proposed development will not impair the orderly and harmonious development of the area, the present or future development therein, or the occupancy as a whole. a. Height, bulk, and area of buildings: The proposed height of the three -story structure is within the maximum permitted height in the zoning district. The height and bulk of the building also hold the street edge well and help to create a well - defined streetscape along Main Street. b. Setbacks and site planning: The site design was oriented to maximize the street frontage by locating the building at the front property line with access and parking located behind the building. The uses such as the parking lot, and trash enclosure have been oriented away from Main Street. c. Exterior materials and colors: The proposed materials (brick, stucco, wrought iron, glass, and wood) are of a high quality, will serve to enhance the architecture of the building, and are compatible with the nearby commercial buildings in Old Town. The proposed color scheme will also accentuate the building's architecture and give a clean look to the fagade. The proposed brick veneer features a subdued gray color and flat stucco texture variation that will provide a modern dimension to the building. d. Type and pitch of roofs: The proposed flat roof with parapet and extended parapet walls create a modern version of the neo- classical style which emphasizes simplicity and can be seen throughout Old Town along Main Street and El Camino Real. e. Size and spacing of windows, doors, and other openings: The proposed building has been designed to reflect a classic Old Town commercial building with a contemporary emphasis using modern materials. The first floor storefronts include operable and fixed glass swinging Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 6 doors which are set back beneath canvas awnings fronting Main Street. The second level full - length vertical plate glass windows are accented by decorative wrought iron railings and are topped with a brick band above. The third -floor residential level provides a small deck area with decorative wrought iron railings and living area set back from the fagade. f. Landscaping, parking area design and traffic circulation: The parking area has been designed to accommodate access from the rear alley which eliminates the view of parked cars from Main Street. Landscaping has been incorporated throughout the parking area consistent with landscape requirements. A decorative wrought iron trellis with climbing vines are proposed at the southwest corner of the building and a decorative wrought iron gate is proposed at the access point along the east side of the building. The side patio also includes raised planters and a focal -point fireplace located at the far north end of the patio. g. Physical relationship of proposed structures to existing structures in the neighborhood: The proposed three story building is a stand -alone building that has been designed with a massing and form that is similar to other existing buildings in Old Town Tustin. Old Town has a history of multi -level buildings located street front with retail and office uses. The project will incorporate multiple uses and is designed consistent and compatible with existing historic and new buildings located in Old Town Tustin. In. Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares: The proposed building adapts a contemporary commercial building into the historic commercial district by incorporating a variety of traditional architectural elements and forms similar to other existing three -story mixed uses including Prospect Village and 170 El Camino Real. These buildings have a zero- setback along the front elevation and both include retail and residential uses O. That the project is determined to be categorically exempt categorically exempt from further environmental review pursuant to the California Environmental Quality Act (CEQA) Section 15332, Class 32, "In -fill development projects." Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 7 II. The City Council hereby adopts Resolution No. 12 -69 approving Design Review (DR) 2012 -002 and Conditional Use Permit (CUP) 2012 -06 to authorize the demolition of an existing building and construction of a mixed - use development, joint use parking, a parking exception and agreement, and the sale of alcoholic beverages in conjunction with a proposed restaurant use for the project at 125 W. Main Street located within the Central Commercial (C -2) Zoning and the Combining Parking (P) and Cultural Resources (CR) Overlay Districts, subject to conditions contained in Exhibit A attached hereto. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 17th day of July, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) 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. 12 -69 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 17th day of July, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK EXHIBIT A TO RESOLUTION NO. 12 -69 EXHIBIT A DR 2012 -002 AND CUP 2012 -06 RESOLUTION NO. 12 -69 CONDITIONS OF APPROVAL GENERAL 1.1 The proposed project shall conform with the Tustin City Code and standards and be consistent with submitted plans for the project date stamped July 17, 2012, 2012, on file with the Community Development Department, except as herein modified, or as modified 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. 1.2 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. 1.3 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 the expiration date. 1.4 Approval of Design Review 2012 -002 and Conditional Use Permit 2012 -06 are 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 prior to issuance of building permits. 1.5 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 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. 1.6 Conditional Use Permit 2012 -06 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director. The Community Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 2 Development Director shall review the use to ascertain compliance with conditions of approval. If the use is not operated in accordance with Conditional Use Permit 2012 -06, or is found to be a nuisance or negative impacts are affecting the surrounding tenants or neighborhood, the Community Development Director shall impose additional conditions to eliminate the nuisance or negative impacts, or may initiate proceedings to revoke the Conditional Use Permit. 1.7 Any violation of any of the conditions imposed is subject to the issuance of an Administrative Citation pursuant to Tustin City Code Section 1162(a). 1.8 Prior to issuance of any permits, approval of a Lot Line Adjustment to combine the two existing lots into shall be obtained and recorded. 1.9 Prior to the issuance of a Building Permit, the applicant shall comply with Ordinance No. 1416 and established by City Council Resolution No. 12 -27 by executing and recording an agreement requiring the payment of an annual fee per space not provided on site that would compensate the City for the project's proportional use of public street and lot parking spaces. 1.10 The applicant shall obtain the appropriate license from the State Department of Alcoholic Beverage Control for the type of alcoholic sales authorized for the site (Type 47). A copy shall be provided to the City prior to operating the upgraded alcoholic sales. 1.11 Approved uses shall operate within all applicable State, County, and the Tustin City Code. Any violations of the regulations of the Department of Alcoholic Beverage Control as they pertain to the subject location, or of the City of Tustin, as they relate to the sale of alcoholic beverages, may result in the revocation of the subject Conditional Use Permit, as provided for the Tustin City Code. BUILDING DIVISION 2.1 At the time of building permit application, the plans shall comply with the latest edition of the codes (2010 Building Codes, 2011 Green Building Code), City Ordinances, State, Federal laws, and regulations as adopted by the City Council of the City of Tustin. The applicant shall demonstrate on plans compliance with the State of California Title 24 accessibility regulations including but not limited to; signage, interior path of travel, work stations, and sanitary facilities. ORANGE COUNTY FIRE AUTHORITY 3.1 Prior to issuance of a building permit, the applicant or responsible party shall submit the fire master plan (service code PR145). Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 3 3.2 Prior to issuance of a building permit, the applicant or responsible party shall submit the architectural (service codes PR200- PR285), when required by the OCFA "Plan Submittal Criteria Form ". 3.3 Prior to issuance of a building permit, the applicant or responsible party shall submit the underground piping for private hydrants and fire sprinkler systems (service code PR470- PR475). 3.4 Prior to concealing interior construction, the applicant or responsible party shall submit the sprinkler monitoring system (service code PR500) 3.5 Prior to concealing interior construction, the applicant or responsible party shall submit the fire sprinkler system (service codes PR430- PR455). Specific submittal requirements may vary from those listed above depending on actual project conditions identified or present during design development, review, construction, inspection, or occupancy. Standard notes, guidelines, submittal instructions, and other information related to plans reviewed by the OCFA may be found by visiting www.ocfa.org and clicking on "Fire Prevention" and then 'Planning & Development Services." GRADING CONDITIONS: 4.1 Prior to issuance of a Grading Permit, a final grading plan, prepared by a California Registered Civil Engineer, shall be submitted and approved. The plan shall be consistent with the approved site and landscaping plans. 4.2 Prior to issuance of a Grading Permit, a grading bond (on a form acceptable to the City) will be required. The engineer's estimate, which covers the cost of all work shown on the grading plan, including grading, drainage, water, sewer and erosion control, shall be submitted to the City for approval. 4.3 Preparation of a sedimentation and erosion control plan for all work related to this development shall be required. WQMP CONDITIONS: 5.1 Prior to issuance of any permits, the applicant shall submit for approval by the Community Development and Public Works Departments, a final Water Quality Management Plan (WQMP). If the WQMP has been determined to be a Priority WQMP, it shall identify Low Impact Development (LID) principles and Best Management Practices (BMPs) that will be used on -site to retain storm water and treat predictable pollutant run -off. The Priority WQMP shall identify: the implementation of BMPs, the assignment of long -term maintenance Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 4 responsibilities (specifying the developer, parcel owner, maintenance association, lessees, etc.), and reference to the location(s) of structural BMPs. 5.2 Prior to submittal of a final Water Quality Management Plan (WQMP), the applicant shall submit a deposit of $2,700.00 to the Public Works Department for the estimated cost of reviewing the final WQMP. 5.3 Prior to issuance of any permits, the applicant shall record a "Covenant and Agreement Regarding O & M Plan to Fund and Maintain Water Quality BMPs, Consent to Inspect, and Indemnification ", with the County Clerk- Recorder. This document shall bind current and future owner(s) of the property regarding implementation and maintenance of the structural and non - structural BMPs as specified in the approved final WQMP. 5.4 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. PUBLIC IMPROVEMENT CONDITIONS: 6.1 The proposed awnings along Main Street shall be reviewed and approved by the City of Tustin Community Development Department: 6.2 The applicant shall provide a four (4) foot wide minimum walkway clear of above ground obstructions along the project frontage at all times. All projecting awnings in the public rights -of -way shall be designed and constructed a minimum of seven (7) feet above the sidewalk grade. 6.3 Prior to any construction of the planters and awnings in the public rights -of -way, the property owner shall submit an encroachment permit application, two (2) sets of City of Tustin Community Development approved site plans with exterior elevation plan, and the applicable encroachment permit fees to the Public Works Department for review and permit issuance. 6.4 Prior to issuance of an encroachment permit, the permittee shall submit a certificate of insurance evidencing that a liability insurance policy in the amount of $1,000,000.00 (minimum) has been issued, naming the City as an additional named insured, and containing a provision that the policy will not be canceled, coverage materially modified, or limits of liability reduced or changed without such notice to the Public Works Director. The permittee shall maintain insurance for the duration of the encroachment permit. 6.5 The encroachment permit and liability insurance shall be renewed every year by the permittee. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 5 6.6 Any damage done to existing public street improvements (including public alley) and utilities shall be repaired to the satisfaction of the City Engineer before issuance of a Certificate of Occupancy. 6.7 Current Federal Americans with Disabilities Act (ADA) requirements shall be met at all driveways and sidewalks adjacent to the site. City of Tustin standards shall apply, unless otherwise approved by the City Engineer. Depending on the applicable City standard, an easement on private property for pedestrian access may be required. In this case, a legal description and sketch of the dedication area, as prepared by a California Registered Civil Engineer or California Licensed Land Surveyor, shall be submitted to the Public Works Department for review and approval. 6.8 Prior to any work in the public right -of -way, an Encroachment Permit must be obtained from and applicable fees paid to the Public Works Department. 6.9 Existing sewer, domestic water, reclaimed water, and storm drain service laterals shall be utilized whenever possible. 6.10 Removal of existing driveways along Main Street and replacement with curb, gutter and sidewalk Avenue shall conform to City of Tustin Public Works standards and current federal Americans with Disability Act (ADA) requirements. 6.11 The applicant shall relocate the existing underground drain pipe away from the existing street light per the City of Tustin Public Works Department Standards. 6.12 The applicant shall replace in kind all brick pavers damaged in the public alley caused by the construction of the project and /or undergrounding of utilities. 6.13 The applicant shall design and reconstruct the drive approach along 145 W. Main Street to the most current City of Tustin's Public Works Standard and meet the most current ADA requirements. Written permission from property owner(s) shall be required for any work located on adjacent property. 6.14 Prior to issuance of a building permit, the applicant shall obtain approval of the design for all construction within the public right -of -way (along Main Street and within the public alley). These improvements shall be completed prior to issuance of Certificate of Occupancy. A separate 24" x 36" street improvement plan, as prepared by a California Registered Civil Engineer shall be prepared. Said plan shall include, but not be limited to, the following: a) Curb and gutter d) Domestic water facilities b) Sidewalk, including curb ramps e) Sanitary sewer facilities for the physically disabled f) Landscape /irrigation c) Drive aprons g) Underground utility connections Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 6 6.15 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. 6.16 In addition to the normal full -size map and plan submittal, all final maps and 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 shall be submitted to the Public Works Department in computer aided design and drafting (CADD) format to the satisfaction of the City Engineer. 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 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. 6.17 An adequate size trash enclosure with solid metal, self - closing, self - latching gates is required to be located on the property and maintained in a clean and sanitary condition. Said enclosure shall be screened by a solid wall at a minimum height of six (6) feet. The actual location of the enclosure and types of screening and details of the enclosure shall be submitted at building plan check and are subject to approval by the Community Development Department. The location of the bin, size, and quantity shall be reviewed and accepted in writing by Public Works. WATER SERVICES CONDITIONS: 7.1 In accordance with the plans, a backflow prevention device may be required to protect the public water system from cross connections. 7.2 If a double check detector assembly (DCDA) is required, an easement for public utility access purposes must be dedicated to the City of Tustin. The easement shall start from the public right -of -way up to the DCDA with a minimum distance of five (5) feet all around the DCDA to allow for unobstructed access, inspection, testing, and maintenance. 7.3 If a building sprinkler system is required by the Orange County Fire Authority (OCFA), the applicant shall be required to provide a backflow prevention device at his or her expense to prevent cross contamination with the public water system. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 7 7.4 If the applicant proposes to use an irrigation system, then a separate water meter may be required. If this is the case, a reduced pressure principle assembly (RPPA) shall be required to prevent cross - connection with the public water system. 7.5 Any easements for construction and maintenance of public water facilities within private property shall be reviewed and approved by the Public Works Department prior to recordation with the Orange County Clerk- Recorder. The applicant shall submit a legal description and sketch of the area to the Public Works Department for review and approval, as prepared by a California Registered Civil Engineer or California Licensed Land Surveyor. 7.6 The applicant is responsible for all costs related to the installation, upgrade, alteration, relocation or abandonment of all existing City of Tustin public water facilities affected by the proposed project. 7.7 Prior to issuance of an encroachment permit or receiving water service from the City of Tustin, the applicant shall provide a written release /approval from the East Orange County Water District ( EOCWD). The applicant shall submit a water permit application to EOCWD, and is responsible for all application, connection and other EOCWD fees. 7.8 The adequacy of a proposed water system plan for a proposed development project, including the number, size and distribution of fire hydrants, must be reviewed by the Orange County Fire Authority (OCFA). Plans meeting OCFA fire protection requirements must be stamped and approved by that agency. 7.9 The proposed domestic water system plans must conform to all applicable regulations enforced by the Orange County Health Department. MISCELLANEOUS CONDITIONS: 8.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). A. The applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least 50% of the project waste material. B. The applicant will be required to submit a $50.00 application fee and a cash security deposit. Based on the review of the submitted Waste Management Plan, the cash security deposit will be determined by the Public Works Department in an amount not to exceed 5% of the project's valuation. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 8 C. Prior to issuance of any permit, the applicant shall submit the required security deposit in the form of cash, cashier's check, personal check, or money order made payable to the "City of Tustin ". 8.2 Prior to issuance of a Building Permit, payment of the most current Major Thoroughfare and Bridge Fees (for the Foothill /Eastern Transportation Corridor Agency (TCA)) to the City of Tustin (through the Public Works Department) shall be required. The fee rate schedule automatically increases on July 15` of each year. 8.3 Prior to issuance of a Building Permit, the applicant shall provide written approval from the Orange County Sanitation District (OCSD) for service connections to the Public Works Department. ARCHITECTURE 9.1 All final exterior colors and textures shall be subject to review and approval of the Community Development Department and final inspection. All colors, materials, and textures shall be noted in construction plans and are subject to field verification prior to issuance of Certificate and Occupancy. 9.2 All rooftop mechanical and electrical fixtures and equipment shall be adequately screened subject to review and approval by the Community Development Department. The screen shall be included as an element of the overall design of the project and blend with architectural design of the building. All electrical, mechanical, and electrical fixtures shall be depicted and noted on the construction drawings. 9.3 All exterior on -site light fixtures shall consist of decorative fixtures compatible with the Old Town theme and architecture of the building. Colored cut - sheets shall be submitted for review and approval. All light fixtures shall be subject to review and approval of the Community Development Director. 9.4 The applicant shall obtain a permit for future installation of signs on the building. Any sign proposal shall conform to Section 9401 of the Tustin Sign Regulations. In addition, the location, placement, size, number, and sign details shall be subject to the discretion of and approval by the Community Development Director. 9.5 Prior to the issuance of building permits, the applicant shall ensure that the final treatment/details of all building elevations and architectural plan details shall be subject to review and approval by the Community Development Department. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 9 LANDSCAPING/ HARDSCAPE 10.1 Submit at plan check complete detailed landscaping and irrigation plans for all landscaping areas consistent with adopted City of Tustin Landscaping requirements. The plans shall include the following: A. Several small specimen trees shall be planted in the landscape planter along the easterly property line. Planting size, number, and type shall be subject to review and approval by the Community Development Director. B. All landscaping must be irrigated and maintained in perpetuity for the lifetime of the project. Final planting size, number, and type for the plant materials along the south property line shall be subject to review and approval by the Community Development Director. C. The applicant shall submit a revised materials board identifying the type, color and texture of the proposed decorative pavers subject to review and approval of the Community Development Director. D. Include a summary table identifying plant materials. The plant table shall list botanical and common names, sizes, spacing, location, size and quantity of the plant materials proposed. Planters should not include grass, but shrubs, groundcover and trees. Shrubs shall be a minimum of five (5) gallon size and shall be placed a maximum of five (5) feet on center. E. Show all property lines on the landscaping and irrigation plans, public right -of- way areas, sidewalk widths, parkway areas, and wall locations. F. The Community Development Department may request minor substitutions of plant materials or request additional sizing or quantity of materials during plan check. G. Add a note that coverage of landscaping and irrigation materials is subject to inspection at project completion by the Community Development Department. H. 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, weeding, removal of litter, fertilizing, regular watering, and replacement of diseased or dead plants. 10.2 The applicant shall make every effort to retain the existing ficus tree located in the City right -of -way. In the event the trees cannot be saved, any proposal for replacement shall be a size and specimen (i.e. Tabebula Avellanedae) acceptable to the City Engineer /Public Works Director. Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 10 USE RESTRICTIONS 11.1 In the event that the City implements programs and regulations to create a parking assessment district(s), the property owner and all successors in interest shall not contest and must participate in the implementation of such programs and regulations. 11.2 No outdoor storage is permitted, except as approved by the Tustin Community Development Director. 11.3 The authorization to serve alcoholic beverages on -site is subject to the use remaining as a restaurant. Any change to the use shall require review and approval by the Community Development Director. This approval authorizes a Type 47 ABC License (on -site general sales) in conjunction with a bona fide public eating place. Any changes and /or upgrades to the Alcoholic Beverage Control License shall be reviewed and approved by the Community Development Director. 11.4 Business hours are limited to the following: 11:00 PM during weekdays and until 12:00 AM on weekends Sales of alcohol shall be limited to the hours when food is available. Modifications to the hours of operation may be approved by the Community Development Director if it is determined that no impacts to the surrounding tenants or properties will occur. 11.5 No off -site sale or consumption of alcohol is authorized, except partially consumed bottles of wine as authorized in Business and Professions Code Section 23396.5. 11.6 The menu of the restaurant shall consist of foods that are prepared on the premises. 11.7 Any cocktail lounge or bar area within the restaurant shall function as a food and beverage service bar. 11.8 Any live entertainment provided at the project site shall comply with TCC Section 3231 et seq. regarding Live Entertainment. 11.9 All persons serving alcoholic beverages within a restaurant establishment must be 18 years of age or older and supervised by someone 21 years of age or older. The supervisor shall be present in the same area as point of sale. 11.10 The gross annual sales receipts shall be provided upon request to the Community Development Department. To verify that the gross annual sale of food exceeds the Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 11 gross annual sales, an audited financial statement shall be provided for review and approval by the Community Development Director annually. If the audited financial statement demonstrates that the sale of alcohol exceeds the sale of food, the sale of alcoholic beverages shall cease immediately. 11.11 "No Loitering" signs shall be placed near the entrance on the outside of the premises or in other specified locations where alcoholic beverages are sold. 11.12 Business operations shall be conducted in a manner that does not create a public or private nuisance. Any such nuisance must be abated immediately upon notice by the City of Tustin. FEES 12.1 Prior to the issuance of any building permits, payment shall be made for all applicable fees, including but not limited to, those listed below. 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. B. Orange County Fire Authority plan check and inspection fees to the Community Development Department. C. Private improvement plan check and permit fees to the Community Development Department. D. Written approval from the Orange County Sanitation District No. 7 for Sewer Connection Fees. E. New development tax to the Community Development Department based upon the most current schedule. F. School facilities fee to Tustin Unified School District based upon the most current schedule. Proof of payment shall be provided to the Community Development Department prior to issuance of building permits. G. Payment of the Major Thoroughfare and Bridge Fees in effect at the time of issuance of a building permit to the Tustin Public Works Department. H. Applicable parking fees as required by Ordinance No 1416. Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a Resolution No. 12 -69 DR 2012 -002 and CUP 2012 -06 Page 12 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 the 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. EXHIBIT B TO RESOLUTION NO. 12 -69 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Director of Community Development 300 Centennial Way Tustin, CA 92780 -3767 Space Above This Line For Recorder's Use Fee Exempt per Govt. Code Section 6103 CITY OF TUSTIN OLD TOWN PARKING EXCEPTION AGREEMENT This Old Town Parking Exception Agreement ( "Agreement "), dated this _ day of 2012 is entered into by and between the City of Tustin ( "City'), and PJ Jahangiri of Pacific Maintenance and Repair, Inc., owner of the property located at 125 W. Main Street, Tustin ( "Owner'). RECITALS WHEREAS, the Owner owns certain Property as more particularly described in Exhibit "1" to this Agreement, attached hereto and incorporated by reference as if fully set forth herein (the "Property "); and WHEREAS, Property is located within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C -2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council; and WHEREAS, the development planned for the Property (the development is hereinafter referred to as "Project ") requires a certain number of parking spaces to satisfy the off - street parking requirements of the City of Tustin Zoning Code in effect as of the date of this Agreement (hereinafter referred to as "Zoning Code'); and WHEREAS, on February 19, 2008, the Tustin City Council approved a comprehensive Parking Study for Old Town Tustin which determined that Old Town had a significant amount of available public parking and that modern parking standards were an impediment to the area's economic development; and WHEREAS, on April 3, 2012, the Tustin City Council adopted Ordinance No. 1416 establishing a new parking exception option in the Zoning Code, applicable to development in the commercial area of Old Town Tustin, that allows all or a portion of a project's required onsite parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking ( "Old Town Parking Exception "); and WHEREAS, Owner submitted an application for Design Review 2012 -002 and Conditional Use Permit 2012 -06 proposing development of the Property which included a proposal to utilize the Old Town Parking Exception, for twenty (20) parking spaces required by the Zoning Code, but which will not be provided onsite. WHEREAS, on June 12, 2012, the Tustin Planning Commission considered Design Review 2012 -002 and Conditional Use Permit 2012 -06, determined that the Project met certain findings established by Ordinance No. 1416, and adopted Resolution No. 4197 recommending approval of the Project and the use of the Old Town Parking Exception as satisfying the parking requirements set forth in the Zoning Code; and WHEREAS, on July 17, 2012, the City Council approved Resolution 'No. 12 -69 approving Design Review (DR) 2012 -002 and Conditional Use Permit (CUP) 2012 -06 to authorize the construction of a mixed -use development (restaurant, office and residential), joint use parking among the proposed uses, the sales of alcoholic beverages in conjunction with a restaurant use and parking exception and agreement for the project at 125 W. Main Street.. WHEREAS, Condition No. 1.9 of Resolution No. 12 -69 requires the Owner to execute and record an agreement requiring the payment of an annual fee in accordance with the Old Town Parking Exception for each Project parking space not provided onsite. WHEREAS, the Old Town Parking Exception program is granted as a privilege and not as a matter of right; and Page 2 of 11 WHEREAS, the execution of a valid written Agreement as described above, and the satisfaction of certain other conditions, would allow the Project on the Owner's Property to qualify for a Certificate of Occupancy upon completion of the Project; and NOW, THEREFORE, the City and the Owner hereby agree as follows: GENERAL PROVISIONS Section 1.00 Conferring Parking Exception to Owner Section 1.01 Location of Project Site The Project site is located at 125 W. Main Street, within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C -2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council, and as described in the legal description set forth in "Exhibit 1" hereof; Section 1.02 Designation of Parking Exception Spaces The City hereby designates twenty (20) parking spaces generally located within the Old Town commercial area as available for Parking Exception Spaces purposes for the uses proposed and approved for Design Review 2012 -002 and Conditional Use Permit 2012- 06. The final number of Parking Exception Spaces confirmed by this Agreement may be adjusted in accordance with Section 1.06, below. The City reserves the right to redesignate, by subsequent written notice to Owner, the location of the Parking Exception spaces. Section 1.03 Conferring of Parking Exception Spaces The City hereby confers all rights and obligations for use of the Parking Exception Spaces on the terms and conditions provided herein. In consideration thereof, the Owner agrees to the terms and conditions set forth in this Agreement. Section 1.04 Rights and Obligations Pertaining to Parking Exception Spaces The City hereby provides, and the Owner hereby acknowledges, that the Parking Exception Spaces are being conferred on the Property in order to satisfy the parking Page 3 of 11 requirements for the specific use approved by Design Review 2012 -002 and Conditional Use Permit 2012 -06. Neither the Old Town Parking Exception program nor this Parking Exception Agreement grants Owner any right or privilege to use the Parking Exception Spaces greater than those rights and privileges enjoyed by the public generally. No property interest in the actual spaces themselves is being transferred, granted, or conveyed to Owner. In addition, the location of employee parking shall be determined by the City. Section 1.05 Parking Exception Spaces to Remain with the Property The convenants, terms, conditions, and restrictions of this Agreement shall be binding upon, and inure to the benefit of the Parties to this Agreement and their respective successors, representatives, heirs and assigns, and shall continue as a servitude running in perpetuity with the property. Owner agrees to notify the City in writing prior to any conveyance of the Property. Section 1.06 Adjustments to Number of Parking Exception Spaces In the event that the actual use of the Property requires a number of Parking Exception Spaces different from the number assigned by Section 1.01, then the actual number of Parking Exception Spaces conferred shall be agreed to in writing by the City and Owner as provided in Section 3.07 (Written Amendment). Section 1.07 Time for Obtaining Certificate of Occupancy The Owner shall have two (2) years from the date of this Agreement to obtain a Certificate of Occupancy for the Project from the City of Tustin, unless the Director of Community Development extends such period in writing based on a finding that the delay was due primarily to factors outside the control of Owner. If a Certificate of Occupancy is not issued by the Community Development Department by this date, this Agreement shall terminate and all Parking Exception Spaces shall automatically revert to the City. A copy of the Certificate of Occupancy shall be appended to this Agreement and shall be recorded by the City. Page 4 of 11 Section 1.08 Use of the Property The Owner agrees to use and otherwise operate the Property in conformance with the Design Review 2012 -02 and Conditional Use Permit 2012 -006 and this Agreement. Section 2.00 Payments by Owner Section 2.01 Parking Exception Fee The "Parking Exception Fee" shall be the amount of $60.00 for each Parking Exception Space, per year, as may be modified at any time by Resolution of the Tustin City Council. The Parking Exception Fee shall be due and payable in full by July 1" of each year and every portion of a year when the Agreement is in effect and, therefore shall not be prorated. As an alternative, the City may arrange to collect the Parking Exception Fee through an annual assessment collected by the County Tax Assessor at the same time and in the same manner as County taxes are collected, and all laws providing for the collection and enforcement of County taxes shall apply to the collection and enforcement of the assessments. The Parking Exception Fee shall remain in effect until such time that the Parking Exception Spaces are no longer conferred by the City. The Owner or successor of interest shall not oppose and shall participate in any and all efforts by the City to establish a Vehicle Parking Assessment District or Business Improvement Area intended to supplement public parking in the area. Section 2.02 Amount of Parking Exception Fee to be paid by Owner Based upon the number of Parking Space Exceptions conferred by this Agreement, the Owner agrees to the following annual payments ( "Owner Payments'): $60.00 X 20 Parking Exception Spaces = $1,200.00 total initial annual payment. If the number of Parking Exception Spaces is ever adjusted pursuant to Section 1.06, then the total amount of Parking Exception Fees due shall be adjusted accordingly. Page 5 of 11 Said Owner Payments are due and payable as stipulated in Section 2.01. There shall be a late fee of twenty percent (20 %) for each month payment is not made in addition to any other collection fees for payments not received by the City by the due date set forth in this Agreement. Failure of the Owner to make payment of the annual Owner Payments installment by the due date shall be considered a default and shall entitle the City to exercise the remedies stated in Section 3.01. If County Assessor Owner Payment collection is not implemented as stipulated in Section 2.01, the City will send the Owner a written notice stating the amount of Owner Payments due, including any adjustment made by Resolution of the City Council, no less than thirty (30) days before the due and payable date for each annual Owner Payment. Such notice shall be provided to the Owner for the Owner's convenience only. Failure of the City to provide such notice does not relieve Owner from fulfilling its obligation to pay such Owner Payment. Section 2.03 Adjustments to Owner Payments As stipulated in Section 2.01, and pursuant to the Mitigation Fee Act (Government Code § 66001(a) et al), the Tustin City Council may modify the Parking Exception Fee at any time by Resolution of the Tustin City Council. Further, in accordance with Section 1.06 of this Agreement, the amount of Owner Payments may be increased or decreased to reflect the actual number of Parking Spaces required for the use of the Property. Section 3.00 Miscellaneous Provisions Section 3.01 Default In the event Owner materially defaults in any of its obligations hereunder, the City may declare a default and terminate this Agreement by written notice to the Owner. The notice shall specify the basis for the default. The Agreement shall terminate unless such default is cured before the effective date of the termination stated in such notice, which date shall be no sooner than twenty -one (21) days after the date of the notice. Upon termination, the Page 6 of 11 City may then take any action under the procedures then in effect to revoke Design Review 2012 -002 and Conditional Use Permit 2012 -06, Certificate of Occupancy, building permit or other authorization applicable to the Property if the parking requirements are not otherwise met. The City shall be entitled to retain all Owner Payments due to and through the termination date (and any applicable late fees). Section 3.02 No Assignment Other than any conveyance to a successor in interest to the Property, as set forth in Section 1.05, Owner shall not assign or transfer this Agreement or any rights hereunder without the prior written consent and approval of the City, which may be withheld in the City's sole discretion. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach by the Owner of its obligations under this Agreement. No assignment shall release the original parties or otherwise constitute a novation. Section 3.03 Proceeds of This Agreement All Parking Exception Fees collected shall be deposited into the General Fund for use in performing maintenance of the public right -of -way and parking facilities in the Old Town commercial area. Section 3.04 Attorney's Fees If any action at law or in equity is brought to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable costs and attorney's fees. Section 3.05 Laws Owner shall comply with all Federal, State and City laws applicable to the uses contemplated on the Property which is the subject of this Agreement. Section 3.06 Applicable Law Page 7 of 11 This Agreement, and the rights and duties of the parties hereunder (both procedural and substantive), shall be governed by and construed according to the laws of the State of California. Section 3.07 Written Amendment This Agreement may only be changed by written amendment signed by Owner and the authorized representative of the City, subject to any requisite authorization by the City Council. Any oral representations or modifications concerning this Agreement shall be of no force or effect. Section 3.08 Severability If any provision in this Agreement is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Agreement. Section 3.09 Choice of Forum The parties hereby agree that this Agreement is to be enforced in accordance with the laws of the State of California, is entered into and /or is to be performed in the City of Tustin and that all claims or controversies arising out of or related to performance under this Agreement shall be submitted to and resolved in a forum within the County or Orange at a place to be determined by the rules of the forum. Section 3.10 Duplicate Originals There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. Section 3.11 Time Time is of the essence in this Agreement Page 8 of 11 Section 3.12 Notices Any notice or demand to be given by one party to the other shall be given in writing and by personal delivery or prepaid first - class, registered or certified mail, addressed as follows. Notice simply to the City of Tustin or any other City department is not adequate notice. TO CITY: DIRECTOR OF COMMUNITY DEVELOPMENT 300 Centennial Way Tustin, California 92780 TO OWNER PJ Jahangiri PMR Construction 125 W. Main Street Tustin, CA 92780 Any such notice shall be deemed to have been given upon delivery, if personally delivered, or, if mailed, upon receipt or upon expiration of three (3) business days from the date of posting, whichever is earlier. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other party. Section 3.13 No Estate. Nothing contained in this Agreement, nor the acts of the parties hereto, nor the acts of any third party shall be deemed or construed to create the relationship of principal and agent, or a partnership, or a joint venture, or of any association between the parties to this Agreement. Owner agrees that it will not claim at any time any vested right, property right, interest, title, leasehold, or estate in the Parking Space Exceptions or the public parking within the Old Town commercial area by virtue of this Agreement or by virtue of Owner's occupancy, use or expenditures under this Agreement. Section 3.14 Destruction of Premises The Owner and City agree that, if the Project approved by Design Review 2012- 002 and Conditional Use Permit 2012 -06 is ever wholly or partially destroyed, and the Project is considered conforming, the Project may be rebuilt and the provisions of this Agreement shall remain in full force as described herein. In the event that the Project approved by Design Page 9 of 11 Review 2012 -002 and Conditional Use Permit 2012 -06 is considered a legal, nonconforming structure, any reconstruction shall be governed by the City's nonconforming provisions of the Tustin City Code. If either the City or the Owner determine that the destroyed Project cannot or will not be rebuilt, then either party may terminate this Agreement by 15 days written notice to the other. As of the date of termination, the Parking Exception Spaces shall no longer be used by the Owner to meet any Zoning Code requirement or to support the parking requirement underlying Design Review 2012 -002 and Conditional Use Permit 2012 -06, Certificate of Occupancy, or other permit. Upon such termination, neither Owner no City shall have any liability to the other, either on account of the unavailability of the Project or the unavailability of the Parking Exception Spaces. The liability of the Owner for payments properly due prior to termination shall survive any termination of this Agreement pursuant to this paragraph. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below. DATE ATTEST: Pamela Stoker City Clerk APPROVED AS TO FORM: CITY OF TUSTIN in Jeffrey C. Parker City Manager OWNER M PJ Jahangiri (For 125 W. Main Street) Page 10 of 11 David E. Kendig City Attorney EXHIBIT 1 All that certain real property situated in the County of Orange, State of California, described as follows: PARCEL 1: Lots 3 and 13 in Block 14 of "A Portion of Tustin City" together with the East half of the 20.00 foot alley abutting said Lots 3 and 13 on the West, lying Southerly of the Westerly prolongation of the South line of the Northerly 10.00 feet of said Lot 3, all in the City of Tustin, County of Orange, State of California, as per map recorded in Book 4, Pages 218 and 219 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California. Except the East 10.00 feet of said Lot 13. Also except the North 10.00 feet of said Lot 3. Also except the East 100.00 feet of said Lot 3. PARCEL 2: Lot 2 and the East 10.00 feet of Lot 13 in Block 14 of "A Portion of Tustin City", in the City of Tustin, County of Orange, State of California, as per map recorded in Book 4, Pages 218 and 219 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California. Except the North 10 feet thereof. Also except the East 10 feet of Lot 2. Assessor's Parcel Number: 401 - 573 -05 and 401 - 573 -06 Page 11 of 11