HomeMy WebLinkAboutPC RES 4205RESOLUTION NO. 4205
The Planning Commission does hereby resolve as follows:
The Planning Commission finds and determines as follows:
A. That a proper application for Development Agreement (DA) 2012 -002,
Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density
Transfer, Density Bonus, and Concessions or Incentives authorized
under Tustin City Code Section 9123, has been submitted by St. Anton
Partners, LLC, related to the provision of 225 affordable residential
apartment housing units in compliance with California Government
Code Section 65915(1) required for the proposed development of
Tustin Legacy Disposition Package 1A- North, Tustin Legacy, to be
implemented by St. Anton Partners or its affiliate as may be approved
by the City of Tustin.
B. That the site is zoned as Planning Area 15, Residential Core,
Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and
designated MCAS Tustin (MCAS) by the Tustin General Plan. In
addition, the project has been reviewed for consistency with the Air
Quality Sub - element of the City of Tustin General Plan and has been
determined to be consistent with the Air Quality Sub - element.
C. That MCAS Tustin Specific Plan Section 4.2.9 requires all private
development at MCAS Tustin to obtain a Development Agreement in
accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code. In compliance with Tustin
City Code Section 9611, the Tustin Planning Commission must make a
recommendation on the proposed Development Agreement to the City
Council. After consideration of the proposed project, the Tustin Planning
Commission supports Tustin City Council approval of the proposed
Development Agreement with the following findings that the project:
A RESOLUTION OF THE PLANNING COMMISSION OF THE
r
CITY OF TUSTIN, RECOMMENDING THAT THE CITY
COUNCIL APPROVE DEVELOPMENT AGREEMENT (DA)
2012 -002, CONCEPT PLAN (CP) 2012 -003, DESIGN
REVIEW (DR) 2012 -005, DENSITY TRANSFER, DENSITY
BONUS, AND CONCESSIONS OR INCENTIVES
AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123
RELATED TO THE PROVISION OF AFFORDABLE
HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA
GOVERNMENT CODE SECTION 65915(1) FOR 225
AFFORDABLE RESIDENTIAL APARTMENTS AT
DISPOSITION PACKAGE 1A- NORTH, TUSTIN LEGACY (ST.
ANTON PARTNERS, LLC).
The Planning Commission does hereby resolve as follows:
The Planning Commission finds and determines as follows:
A. That a proper application for Development Agreement (DA) 2012 -002,
Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density
Transfer, Density Bonus, and Concessions or Incentives authorized
under Tustin City Code Section 9123, has been submitted by St. Anton
Partners, LLC, related to the provision of 225 affordable residential
apartment housing units in compliance with California Government
Code Section 65915(1) required for the proposed development of
Tustin Legacy Disposition Package 1A- North, Tustin Legacy, to be
implemented by St. Anton Partners or its affiliate as may be approved
by the City of Tustin.
B. That the site is zoned as Planning Area 15, Residential Core,
Neighborhood G in the MCAS Tustin Specific Plan (SP -1); and
designated MCAS Tustin (MCAS) by the Tustin General Plan. In
addition, the project has been reviewed for consistency with the Air
Quality Sub - element of the City of Tustin General Plan and has been
determined to be consistent with the Air Quality Sub - element.
C. That MCAS Tustin Specific Plan Section 4.2.9 requires all private
development at MCAS Tustin to obtain a Development Agreement in
accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code. In compliance with Tustin
City Code Section 9611, the Tustin Planning Commission must make a
recommendation on the proposed Development Agreement to the City
Council. After consideration of the proposed project, the Tustin Planning
Commission supports Tustin City Council approval of the proposed
Development Agreement with the following findings that the project:
Resolution No. 4205
Page 2
1.
Is consistent with the objectives, policies, general land uses and
programs specified in the General Plan and the MCAS Tustin
Specific Plan (except for any Concessions and Incentives
authorized for the project by the Tustin City Council).
2.
Is compatible with the uses authorized in the district in which the
real property is located (Planning Area 15). Note: the proposed
apartment project complies with the uses authorized by the MCAS
Tustin Specific Plan.
3.
Is in conformity with the public necessity, public convenience,
general welfare, and good land use practices. Note: the proposed
provision of 225 affordable apartment units meets this goal.
4.
Will not be detrimental to the health, safety, and general welfare.
Note: compliance with the MCAS Tustin Specific Plan, Tustin City
Code, and other regulations will ensure that the project will not be
detrimental in any way.
5.
Will not adversely affect the orderly development of property. Note:
the proposed project is orderly and well designed.
6.
Will have a positive fiscal impact on the City. Note: the provisions of
the proposed DDA, DA and conditions of approval will ensure that
the project will have a positive fiscal impact on the City.
D. That MCAS Tustin Specific Plan Section 4.2.2.A requires the submission
of a Concept Plan prior to or concurrent with the submission of a new
development proposal within Planning Area 15. The project has been
found to comply with the requirements of the MCAS Tustin Specific
Plan (except as authorized by any approved Concessions and
Incentives). After consideration of the proposed project, the Tustin
Planning Commission has determined that the proposed project
complies with the following MCAS Tustin Specific Plan Concept Plan
review criteria. Specifically, the proposed project depicts:
1. Continuity and adequacy of all circulation systems, such as roads,
access points, trails, pedestrian ways, and other infrastructure
systems needed to serve the project;
2. Continuity and design quality of architecture and renovations
proposed, as well as landscape and hardscape theme and
treatments;
3. Satisfactory response to the urban design features specified in
Chapter 2 and under each Planning Area in Chapter 3 (Note: the
proposed project is not changing master planned circulation, utility,
traffic and related assumptions provided in Chapter 2 of the MCAS
Tustin Specific Plan. No specific design features are provided for
multi- family developments in Chapter 3);
Resolution No. 4205
Page 3
4. Conformity with the Non-Residential Land Use/Trip Budget,
including authorized adjustments (Note: this criteria is not
applicable since the project is a multi-family residential use); and,
5. Compliance with other Specific Plan provisions (Note: project
compliance with MCAS Tustin development requirements is
documented within the October 9, 2012 staff report provided to the
Tustin Planning Commission, (except as authorized by any
approved Concessions and Incentives)).
E. That MCAS Tustin Specific Plan Section 4.2.4 requires the submission of
a Design Review application following or concurrently with submittal of a
concept plan, individual development and reuse projects within Planning
Area 15. After consideration of the proposed project, the Tustin Planning
Commission has determined that the proposed project's design satisfies
the following general architectural and site design principles in that:
In addition, the proposed project's location, size, architectural features
and general appearance will not impair the orderly and harmonious
development of the area, the present or future development therein,
the occupancy thereof, or the community as a whole, based upon a
consideration of the following criteria:
1. Height, bulk and area of buildings.
2. Setbacks and site planning.
3. Exterior materials and colors.
4. Type and pitch of roofs.
5. Size and spacing of windows, doors and other openings.
1.
The buildings define and relate to the street edge, with architecture
to face the streets.
2.
The buildings interface with adjacent residential uses.
3.
The architecture is technically sophisticated in detailing.
4.
There is a rich palette of natural materials and textures.
5.
The architecture proposes visually interesting fagade treatments
M—MM"
with distinctive architectural elements and design details.
6.
The project utilizes varied setbacks, projections, roof lines, windows
and reveals, and elements that minimize the impact of the building
mass.
7.
The buildings are designed with traditional forms, accented by
unique architectural shapes and details.
8.
The buildings reflect high quality design through the incorporation
of coordinated architecture utilizing elements, materials, and colors
that complement the relaxed, informal style.
9.
The buildings incorporate smaller-scale architectural details such
as porches, bays, recessed or projecting balconies, and dormers to
visually reduce the height and scale of the building.
10.
The buildings utilize varied building heights.
11. Building fagade articulation is implemented.
In addition, the proposed project's location, size, architectural features
and general appearance will not impair the orderly and harmonious
development of the area, the present or future development therein,
the occupancy thereof, or the community as a whole, based upon a
consideration of the following criteria:
1. Height, bulk and area of buildings.
2. Setbacks and site planning.
3. Exterior materials and colors.
4. Type and pitch of roofs.
5. Size and spacing of windows, doors and other openings.
Resolution No. 4205
Page 4
6. Towers, chimneys, roof structures, flagpoles, radio and television
antennas.
7. Landscaping, parking area design and traffic circulation.
8. Location, height and standards of exterior illumination.
9. Location and appearance of equipment located outside of an
enclosed structure.
10. Location and method of refuse storage.
11. Physical relationship of proposed structures to existing structures in
the neighborhood.
12.Appearance and design relationship of proposed structures to
existing structures and possible future structures in the
neighborhood and public thoroughfares.
13. Proposed signing (to be submitted for staff review following project
approval)
14. Development guidelines and criteria as may be adopted by the City
Council.
Also, the project applicant has proposed community gates for the
project. After consideration of the proposed project, the Tustin Planning
Commission has determined that the proposed use of gates at the
project is supportable since the project is of a higher density, is in
close proximity to the park, is surrounded by streets on all sides, and
will not impact the parking demand, usage, or the vehicular circulation
on the site.
F. That MCAS Tustin Specific Plan Section 3.2.3 permits the transfer of
residential units (density transfer) between parcels subject to review and
approval. After consideration of the proposed project, the Tustin Planning
Commission has determined that the requested Density Transfer is an
innovative approach to providing a significant number of affordable units
at Tustin Legacy and supports City Council approval of the request with a
condition that St. Anton Partners and The Irvine Company enter into an
Affordable Housing/Regulatory Agreement with the City of Tustin to
ensure availability of the 225 and 37 affordable apartment units
(respectively) for 55 years.
G. That Tustin City Code Section 9141(b) authorizes the submission of an
application for a Density Bonus and/or Concession or Incentive to be
processed concurrently with any other permit application(s) which require
entitlements. The City must support density bonus requests, concessions
or incentives when projects provide affordable housing units in
compliance with California Government Code Section 65915(1), as
authorized under Tustin City Code Section 9123. After consideration of
the proposed project, the Tustin Planning Commission finds that there is
no substantial evidence that:
ON I
Resolution No. 4205
Page 5
1. The concession(s) or incentive(s) is not required in order to provide
for affordable housing costs or for affordable housing rent for the
target units.
2. The concession(s) or incentive(s) would have a specific adverse
impact, as defined in Government Code Section 65589.5, subdivision
(d), paragraph (2), upon public health and safety or the physical
environment or on any real property that is listed in the California
Register of Historical Resources and for which there is no feasible
method to satisfactorily mitigate or avoid the specific adverse impact
without rendering the development unaffordable to low- and
moderate- income households.
3. The concession or incentive would be contrary to state or federal law.
Consequently, the Tustin Planning Commission supports Tustin City
Council approval of the requested Density Bonus, Concessions and
Incentives including:
Parking
Authorization to:
1. Provide 434 parking spaces on site instead of
the 467 spaces required by the MCAS Tustin
Specific Plan.
2. Utilize 88 compact spaces when compact
parking is not allowed within the MCAS Tustin
Specific Plan.
3. Authorize 225 covered parking spaces instead of
the 372 carports and garages required by the
code.
Common
Authorization to provide 87,822 square feet of common
Open Space
open space instead of the 90,000 square feet required
by the MCAS Tustin Specific Plan. Note: the
developer is being required to improve the adjacent
4.706 acre site for use as a public park (204,993
square feet of common open space) which should be
considered a part of the project).
Setbacks
Authorization to allow proposed buildings and
structures to encroach 4 -12 feet into the MCAS Tustin
S ecific Plan required 30 foot building setback.
Building
Authorization to exceed the 45 foot maximum building
Height
height for Planning Area 15 with one structure that is
62 feet in height.
H. That a public hearing was duly called, noticed, and held for DA 2012-
002, CP 2012 -003, DR 2012 -005, Density Transfer and Density
Bonus, Concessions or Incentives on October 9, 2012 by the Planning
Commission.
That on January 16, 2001, the City of Tustin certified the Program
Final Environmental Impact Statement/Environmental Impact Report
Resolution No. 4205
Page 6
(FEIS/EIR) for the reuse and disposal of MCAS Tustin. On December
6, 2004, the City Council adopted Resolution No. 04-76 approving a
Supplement to the FEIS/EIR for the extension of Tustin Ranch Road
between Walnut Avenue and the future alignment of Valencia North
Loop Road. On April 3, 2006, the City Council adopted Resolution
No. 06-43 approving an Addendum to the FEIS/EIR. The FEIS/EIR
along with its Supplemental and Addendum is a program EIR under
the California Environmental Quality Act (CEQA). The FEIS/EIR,
Supplemental and Addendum considered the potential environmental
impacts associated with development on the former Marine Corps Air
Station, Tustin.
An environmental checklist was prepared for the proposed project that
concluded no additional environmental impacts would occur from
approval of the project (Attachment 3 of Exhibit A). The
Environmental Analysis Checklist concludes that it can be seen with
certainty that there is no possibility that the activity in question may
have a significant effect on the environment because all potentially
significant effects 1) have been analyzed adequately in an earlier EIR
pursuant to applicable standards, and 2) have been avoided or
mitigated pursuant to that earlier EIR, including revisions or mitigation
measures that are imposed upon the proposed project.
Further, Government Code Section 65457, subdivision (a), establishes a
statutory CEQA exemption for any residential development project,
including any subdivision, or zoning change that is undertaken to
implement and is consistent with a specific plan for which an EIR was
certified after January 1, 1980. the City has alternatively determined
that the proposed project is exempt from further CEQA review pursuant
to Government Code Section 65457.
II. The Planning Commission hereby recommends that the City Council
approve DA 2012-002, CP 2012-003, DR 2012-005, Density Transfer, and
Density Bonus, Concessions or Incentives authorized under Tustin City
Code Section 9123 for 225 affordable residential apartment units at
Disposition Package 1A-North, Tustin Legacy, with the findings noted above
and subject to the conditions contained within Exhibit A attached hereto.
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a
regular meeting on the 9th day of October, 2012.
--�ft—EVE`-"K-0ZAK
Chairperson
ELIZABETH A. BINSACK
Planning Commission Secretary
Resolution No. 4205
Page 7
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
1, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California; that Resolution No. 4205 was duly passed and
adopted at a regular meeting of the Tustin Planning Commission, held on the gth day of
October, 2012.
o
ELIZABETH A. BINSACK
Planning Commission Secretary
11111-1-1111
I
EXHIBIT A
RESOLUTION NO. 4205
DEVELOPMENT AGREEMENT (DA) 2012-002, CONCEPT PLAN (CP) 2012-003,
DESIGN REVIEW (DR) 2012-005, DENSITY TRANSFER, AND DENSITY BONUS,
CONCESSIONS OR INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE
SECTION 9123 RELATED TO THE PROVISION OF AFFORDABLE HOUSING UNITS
IN COMPLIANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65915(1).
CONDITIONS OF APPROVAL
GENERAL
1.1 The proposed project shall substantially conform with the submitted
plans for the project date stamped October 9, 2012, on file with the
Community Development Department, 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
subsequent minor modifications to plans during plan check if such
modifications are consistent with provisions of the Tustin City Code.
1.2 Unless otherwise specified, the conditions contained in this Exhibit shall be
complied with as specified, subject to review and approval by the
Community Development Department.
1.3 This approval shall become null and void unless the use is established
within twelve (12) months of the date of this Exhibit. Time extensions
may be granted if a written request is received by the Community
Development Department within thirty (30) days prior to expiration.
(1) 1.4 Approval of DA 2012-002, CP 2012-003, DR 2012-005, Density
Transfer, and Density Bonus, Concessions or Incentives in compliance
with California Government Code Section 65915(1) is contingent upon the
applicant and property owner signing and 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.
This condition shall serve as a pre-citation and to inform the responsible
person(s) of the compliance requirements pursuant to the Tustin City
SOURCE CODES
(1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT
(2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES
(3) UNIFORM BUILDING CODEIS (7) PC/CC POLICY
(4) DESIGN REVIEW *** EXCEPTION
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 2
Code (TCC) and /or other applicable codes, laws, and conditions.
Failure to comply with the conditions of approval set forth herein shall
result in the issuance of an administrative citation pursuant to TCC
1162(a).
(1) 1.6 Approval of DA 2012 -002, CP 2012 -003, DR 2012 -005, Density
Transfer, and Density Bonus, Concessions or Incentives in compliance
with California Government Code Section 65915(1), including the Housing
Agreement and Regulatory Agreement, may be reviewed on an annual
basis, or more often if necessary, by the Community Development
Director. The Community Development Director shall review the use to
ascertain compliance with conditions of approval. If the use is not operated
in accordance with the approvals affecting the surrounding tenants or
neighborhood, the Community Development Director shall take any action,
or may initiate any proceedings permitted by law to enforce the conditions
of approval or Agreements and covenants associated with this approval.
(1) 1.7 As a condition of approval of DA 2012 -002, CP 2012 -003, DR 2012 -005,
Density Transfer, and Density Bonus, Concessions or Incentives in
compliance with California Government Code Section 65915(1), the
a�t
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 the defense of any such action under
this condition.
(1) 1.8 The applicant shall be responsible for costs associated with any necessary
code enforcement action, including attorney's fees, subject to the
applicable notice, hearing, and appeal process as established by the City
Council by ordinance.
(1) 1.9 At the time of plan check submittal, the applicant shall clearly
demonstrate compliance with all applicable development standards of
the MCAS Tustin Specific Plan and the Tustin City Code on construction
drawings.
(1) 1.10 Unless otherwise specified, the conditions contained in this Exhibit shall
be complied with prior to the issuance of any building permits for the
Exhibit A
Resolution No. 4205
DA 2012-002, DR 2012-005, CP 2012-003, Density Transfer, and Density Bonus
Page 3
project, subject to review and approval by the Community Development
Department.
USE RESTRICTIONS
(1) 2.1 St. Anton Partners has partnered with The Irvine Company, LLC (a
respondent-developer approved by the City of Tustin to develop 533
apartments within Disposition Package 2A in Planning Area 13,
Neighborhood D of Tustin Legacy) in this effort. The St. Anton/Irvine
Company proposal requests the transfer of 120 of 157 affordable
housing units from Disposition Package 2A to Disposition Package 1A-
North with 120 market rate units to be transferred from Disposition
Package 1A-North to Disposition Package 2A. If the request to transfer
units is approved by the Tustin City Council, Disposition Package 1A-
North would ultimately result in the development of 225 affordable
residential apartment units (88 very low income, 73 low income, and 64
moderate income) and Disposition Package 2A would ultimately result
in the development of 533 residential apartment units, including 37
moderate income units and 496 market rate units. Prior to the issuance
of a first building permit, the applicant (St. Anton) shall enter into a
Housing Agreement with the City in a form and substance satisfactory to
the City consistent with the requirements of the Specific Plan, the City's
Density Bonus Ordinance, the City approved Affordable Housing Plan,
Density Bonus Application, and the City's Affordable Housing Policy and
compliance with California Health and Safety Code. The Agreement
shall contain additional terms and conditions related to the provision of
the affordable units required of the project, including but not limited to:
1) identification of the distribution of the affordable units; 2) provisions
permitting rental of qualifying affordable households at applicable
affordable rents; 3) provisions for maintenance and continued
affordability; 4) affordable units will be rented and income restricted for
the project for a period of 55 years from the issuance of a certificate of
occupancy for the rental project; 5) other governmental requirements.
The Affordable Housing Agreement shall be recorded against the
development site and the applicant shall be required to covenant and
agree for itself, its successors, its assigns, and every successor in
interest that no fewer than the required number of residential units shall
be constructed and available for rental to and occupancy by very low,
low and moderate income households in the amount by income
category identified above. A Regulatory Agreement shall also be
executed ensuring that the affordable housing units are maintained as
approved on each site.
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 4
(1) 2.2 That St. Anton Partners, LLC, execute and record Development
Agreement 2012 -002 provided as approved by the City Attorney (draft
provided as Attachment 1), to ensure that the project related to DA 2012-
002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus,
Concessions or Incentives in compliance with California Government
Code Section 65915(1) is implemented as proposed.
(1) 2.3 That St. Anton Partners, LLC, execute and record the Housing and
Regulatory Agreement provided as approved by the City Attorney (draft
provided as Attachment 2), to ensure that the affordable housing units
are available as approved on each site.
(2) 2.4 The project shall comply with all applicable mitigation and
implementation measures of the Final EIS /EIR, as amended by the
Supplement and Addendum.
(1) 2.5 That St. Anton Partners, LLC, execute and record the Disposition and
Development Agreement (DDA) with the City of Tustin. Any failure to
execute the DDA may result in the City pursuing revocation of DA 2012 -
10110 002, CP 2012 -003, DR 2012 -005, Density Transfer, and Density Bonus,
001 Concessions or Incentives in compliance with California Government
E Code Section 65915(1).
(1) 2.6 Pursuant to the Disposition and Development Agreement (DDA), the
project applicant has agreed to construct a public park adjacent to the
development. Park design and programming shall be the subject of
future review and discussion between the City of Tustin and the
developer, consistent with the approved and executed DDA.
COMMUNITY DEVELOPMENT — PLANNING DIVISION
(1) 3.1 Project construction plans shall comply with the Tustin Noise Ordinance
to address any potential interior and /or exterior noise. Noise attenuation
measures as recommended by the attached Noise Report (Exhibit 1)
shall be included in the project's construction drawings at plan check.
(1) 3.2 At the time of plan check submittal, provide hardscape /landscape plans
to include the quantity, species, and size of all trees and planting
materials for consistency with Specific Plan and City's Landscape and
Irrigation Standards. The landscape plan must comply with the City's
new water efficiency ordinance (Ordinance No. 1376).
(1) 3.3 Prior to issuance of building permits, provide 15 "x 22" set of plans
consistent with plans approved on October 9, 2012.
Exhibit A
Resolution No. 4205
DA 2012-002, DR 2012-005, CP 2012-003, Density Transfer, and Density Bonus
Page 5
1. Technical Site Plan Product
2. Parking Plan Product
3. Conceptual Grading/Utility Plan. Include cross-sections and
direction of drainage flow with slope in percentage
4. Architectural drawings (street scene, floor plan, elevations,
enhanced elevations)
5. Specific information regarding the quantity of private open space
being provided.
(1) 3.4 At the time of plan check submittal, the applicant shall submit all exterior
materials, colors, and other architectural treatments including details for
mailboxes. Indicate color and exterior treatment for review and approval
by the Community Development Director and subject to field inspection
verification.
(1) 3.5 Prior to the issuance of the first building permit, the applicant shall
provide the City with details and plans for all signage proposed for the
project.
(1) 3.6 Prior to the issuance of the first building permit, a Parking Management
Plan consistent with the applicant's submitted parking analysis (Exhibit
2) shall be submitted for approval by the Chief of Police and Director of
Community Development. The Parking Management Plan shall identify
parking management techniques that will be implemented to minimize
the potential for off-site parking issues that would result in an increase in
police or code enforcement service calls.
(1) 3.7 The applicant or responsible party shall screen or enclose all potentially
visible fire sprinkler standpipes and backflow assemblies, devices and
valves to the satisfaction of the Community Development Department.
(1) 3.8 The Developer shall not oppose or contest any future creation or
establishment by the City of Tustin of a landscape and lighting district,
master maintenance association, assessment district, or any other
method or means consistent with the DDA determined by the City
necessary for funding of the maintenance of the public right-of-way,
landscape easements, public parks or of the various municipal services
and operating expenses associated with Tustin Legacy.
COMMUNITY DEVELOPMENT - BUILDING DIVISION
(1) 4.1 Plans submitted for building permits must show compliance with the
State of California Title 24 accessibility regulations. Site, buildings and
swimming pool decks must comply with the appropriate accessibility to
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 6
persons with disabilities. Dwelling units shall be served by an
accessible route and shall be adaptable as required.
(1) 4.2 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.
CITY MANAGERS OFFICE
(1) 5.1 At the time of plan check submittal, the applicant shall submit all plans,
exterior materials, colors, and other architectural treatments for review
for conformance to the DDA.
PUBLIC WORKS DEPARTMENT - ENGINEERING
(1) 6.1 The following plants shall be removed from the proposed Tustin Ranch
Road and park site plant pallet: pinus canariensis tree .
PUBLIC WORKS DEPARTMENT - GRADING
(1) 6.2 This development shall comply with all applicable provisions of the City
of Tustin Water Quality Ordinance and all Federal, State, and Regional
Water Quality Control Board rules and regulations.
(1) 6.3 Preparation of a sedimentation and erosion control plan for all work
related to this development shall be required.
(1) 6.4 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.
(1) 6.5 Prior to issuance of a Grading Permit, a grading bond (on a form
acceptable to the City) shall 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.
(1) 6.6 Prior to issuance of any permits, the applicant shall submit for approval
by the Community Development and Public Works Departments, a
Water Quality Management Plan (WQMP).
Exhibit A
Resolution No. 4205
DA 2012-002, DR 2012-005, CP 2012-003, Density Transfer, and Density Bonus
Page 7
(1) 6.7 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.
(1) 6.8 The Priority WQMP shall identify: the implementation of BMPs, the
assignment of long-term maintenance responsibilities (specifying the
developer, parcel owner, maintenance association, lessees, etc.), and
reference to the location(s) of structural BMPs.
(1) 6.9 Prior to submittal of a 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 WQMP.
(1) 6.10 Prior to issuance of any permits, the applicant shall record a "Covenant
and Agreement Regarding 0 & 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 was specified in the approved
WQMP. MEMO
6.11 Prior to issuance of a Grading Permit, the applicant shall submit a copy
of the Notice of Intent (NOI) indicating that coverage has been obtained
under the National Pollutant Discharge Elimination System (NPDES)
State General Permit for Storm Water Discharges Associated with
Construction Activity from the State Water Resources Quality Control
Board.
PUBLIC WORKS DEPARTMENT — PUBLIC IMPROVEMENTS
(1) 6.12 The applicant shall design and construct parkway landscape and
irrigation facilities on Tustin Ranch Road from property boundary to
Legacy Road, Legacy Road from Tustin Ranch Road to Park Avenue
and Park Avenue from Legacy Road to property boundary for all public
areas adjacent to and within this project.
(1) 6.13 Existing sewer, domestic water, reclaimed water and storm drain
service laterals shall be utilized whenever possible.
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 8
(1) 6.14 The proposed storm drain lateral and manhole along the community
entrance shall be designed and constructed within Lot 20 of Tract Map
17404. A manhole shall be constructed to distinguish the limit of public
storm drain and private storm drain system.
(1) 6.15 Any damage done to existing public street improvements and /or utilities
shall be repaired to the satisfaction of the City Engineer before issuance
of a Certificate of Occupancy for the development.
(1) 6.16 All utility lines shall be placed underground by the developer.
(1) 6.17 The applicant shall design and install stop sign(s) and restripe the
community entrance at Park Avenue.
(1) 6.18 The applicant shall design and construct median
improvements /hardscape within the raised median on Legacy Road and
sidewalks on the south side of Legacy Road adjacent to project site
from Tustin Ranch Road to Park Avenue.
(1) 6.19 The applicant shall be responsible for connection from the project to the
new backbone utility systems unless the new connections are not
available until the main portion of the MCAS Tustin is developed. The
applicant shall provide easements for any new utilities.
(1) 6.20 The applicant shall enter into a landscape maintenance agreement with
the City of Tustin for maintenance of parkway improvements within
public rights -of -way adjacent to the project along Tustin Ranch Road,
Park Avenue and Legacy Road, and the landscape median with callbox
and decorative pavers at community entrance.
(1) 6.21 The applicant shall design and construct the park and related facilities,
and dedicate in fee title Lot MMM of Tract Map 17404 and facilities to
the City of Tustin, at no cost to the City.
PUBLIC WORKS DEPARTMENT — GRANTS IN FEE AND DEDICATIONS
(1) 6.22 The applicant shall submit legal descriptions and sketches of the areas
below, current Title Report, applicable back up documents, and plan
check deposit to the Public Works Department for review and approval,
as prepared by a California Licensed Civil Engineer or California
Licensed Land Surveyor.
a. Prior to issuance of any Building Permit, the applicant shall
provide easements for emergency vehicle access and public
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 9
services ingress and egress purposes over the private streets
and driveways, at no cost to the City.
b. The applicant shall dedicate public access and maintenance
easements to the City of Tustin for sidewalks within private
property along Tustin Ranch Road, Park Avenue, and Legacy
Road, at no cost to the City.
c. The applicant shall dedicate public pedestrian and vehicle
ingress and egress on the private portion of the driveway on Park
Avenue, from the street to the private gates, to the City of Tustin,
at no cost to the City.
d. The applicant shall satisfy dedication and /or reservation
requirements as applicable, including but not limited to dedication
of all required street, drainage and flood control right -of -way
easements, pedestrian and vehicular access rights, utility
easements and public parks, defined and approved as to specific
locations by the City Engineer and other agencies, for this
project.
PUBLIC WORKS DEPARTMENT — COORDINATION WITH AFFECTED PROPERTY
OWNER(S) AND AGENCY(S) Y
(1) 6.23 Prior to any work in the public right -of -way, the applicant shall obtain an
Encroachment Permit and pay all the applicable fees to the Public
Works Department.
(1) 6.24 The applicant shall obtain written approval and /or permits form the
applicable utility companies, including but not limited to Southern
California Edison (SCE), The Gas Company, Irvine Ranch Water District
(IRWD), Cox Communications, etc.
PUBLIC WORKS DEPARTMENT — MISCELLANEOUS
(1) 6.25 Payment of the Major Thoroughfare and Bridge Fees to the Tustin
Public Works Department is required at the time a building permit is
issued. The fee rate schedule automatically increases on July 1St of
each year.
(1) 6.26 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 (CARD) format to the satisfaction of the City Engineer. The
Exhibit A
Resolution No. 4205
DA 2012 -002, DR 2012 -005, CP 2012 -003, Density Transfer, and Density Bonus
Page 10
standard file format is AutoCAD Release 2009, 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.
(1) 6.27 The applicant shall execute a Monumentation Agreement and furnish
Improvement Bonds (Faithful Performance Bond, Labor & Material
Bond, and Warranty Bond) and Monumentation Bond, all on forms
acceptable to the City, as required by the City Engineer prior to
issuance of an Encroachment Permit for the park, sidewalks and any
other improvements in the public right -of -way.
(1) 6.28 Prior to submittal of an application for building permits, the applicant
shall obtain new addresses for all buildings from the Engineering
Division.
Foils 1 6.29 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 shall 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.
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 ".
TUSTIN POLICE DEPARTMENT
(1) 7.1 Project gates will be designed and operated in conjunction with the
parking assessment provided as Exhibit 2, as may be amended from
L
time to time with the approval of the Community Development Director.
0 All pedestrian and vehicle gates shall be accessible to emergency and
law enforcement personnel. Please identify and label the location of all
Exhibit A
Resolution No. 4205
DA 2012-002, DR 2012-005, CP 2012-003, Density Transfer, and Density Bonus
Page 11
pedestrian gates on the construction drawings prior to the issuance of
building permit including but not limited to:
(a) Knox key switches, submaster keyed to the Police Department,
must be installed on all vehicle and common area
doors/pedestrian gates controlled by an electronic access control
system. For vehicle gates, the keyswitch must be installed in the
driver's side visitor call box or at a height of 42" and at least 15'
from the gate on the driver's side.
(b) Knox Boxes, submaster keyed to the Police Department, must be
installed on the pool gate and any other common area gate
requiring a mechanical key.
(c) Click2Enter radio access control system must be installed on the
vehicle gates. The units must be programmed to the Tustin
Police Department secondary frequency and the Orange County
Fire Authority frequency established for Click2Enter.
(d) Prior to the issuance of building permits, the applicant must
submit to the police department, an Emergency Access Plan
noting the location and type of emergency access device to be
installed.
(e) Wayfinding - Prior to the issuance of building permits, the
applicant must submit to the Police Department, a wayfinding
plan for both vehicles and pedestrians.
ORANGE COUNTY FIRE AUTHORITY
(1) 8.1 Prior to issuance of a building permit, the applicant or responsible party
shall submit the fire master plan (service code PR145).
(1) 8.2 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".
(1) 8.3 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).
(1) 8.4 Prior to issuance of building permit, the applicant or responsible party
shall submit a gate plan (service code PR1 80).
(1) 8.5 Prior to the issuance of building permit, the applicant or responsible
party shall submit an underground piping for private hydrants and fire
sprinkler systems (service Code PR470-475).
(1) 8.6 Prior to concealing interior construction, the applicant or responsible
Exhibit A
Resolution No. 4205
DA 2012-002, DR 2012-005, CP 2012-003, Density Transfer, and Density Bonus
Page 12
party shall submit:
The sprinkler monitoring system (service code PR500).
The fire alarm system (service code PR500-PR520)
FEES
9.1 Prior
to issuance of building permits, payment shall be made of all
applicable fees, including but not limited to, the following (Payment shall
be required based upon those rates in effect at the time of payment and
are subject to change.):
a.
Building and Planning plan check and permit fees to the
Community Development Department and Engineering plan
check and permit fees to the Public Works Department, based on
the most current schedule;
b.
Orange County Fire Authority (OCFA) fees collected by the
Community Development Department, based on the most current
schedule;
C.
Major Thoroughfare and Bridge Fees to the City of Tustin
collected by the Public Works Department;
d.
Water and sewer connection fees to the Irvine Ranch Water
District;
e.
School facilities fee in the amount as required by Tustin Unified
School District;
f.
Transportation System Improvement Program (TSIP) Benefit
Area B fees;
g.
New construction tax fees;
h.
Other applicable Tustin Legacy Backbone Infrastructure Program
fees; and
i.
Within forty-eight (48) hours of approval of the subject project,
the applicant shall deliver to the Community Development
Department, a cashier's check payable to the COUNTY CLERK
in the amount of fifty dollars ($50.00) to enable the City to file the
appropriate environmental documentation for the project. If
within such forty-eight (48) hour period that applicant has not
delivered to the Community Development Department the above-
noted check, the statute of limitations for any interested party to
challenge the environmental determination under the provisions
of the California Environmental Quality Act could be significantly
lengthened.
Attachment 1
illiq
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space above this line for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ("Agreement") is
entered into effective as of the day of _, 2012 by and between the CITY OF
TUSTIN, a California municipal corporation ("CITY"), and ANTON LEGACY TUSTIN
L.P.,, a California limited partnership ("DEVELOPER"). CITY and DEVELOPER are
collectively referred to herein as the "Parties" and individually as a "Party".
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the "Development Agreement Statute," Sections 65864, et seq., of
the Government Code. The Development Agreement Statute authorizes CITY to enter into an
agreement with any person having a legal or equitable interest in real property and to provide for
development of such property and to establish certain development rights therein. In addition,
MCAS Tustin Specific Plan Section 4.2.9 states: "prior to issuance of any permits or approval of
any entitlements within the Specific Plan area, all private development shall first obtain a
Development Agreement in accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the
Development Agreement Statute, CITY has enacted procedures for entering into development
agreements which are contained in Tustin City Code Sections 9600 to 9619.
B. CITY and DEVELOPER entered into that certain Tustin Legacy Disposition and
Development Agreement as of (the "DDA") pursuant to which CITY agreed to sell, and
533339.1533339.1
533339.1
CITY OF TUSTIN OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND BE EXEMPT FROM PAYMENT OF
A RECORDING FEE PER
GOVERNMENT CODE 6103 AND 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attn: City Clerk
Space above this line for Recorder's Use Only
TUSTIN LEGACY DEVELOPMENT AGREEMENT
THIS TUSTIN LEGACY DEVELOPMENT AGREEMENT ("Agreement") is
entered into effective as of the day of _, 2012 by and between the CITY OF
TUSTIN, a California municipal corporation ("CITY"), and ANTON LEGACY TUSTIN
L.P.,, a California limited partnership ("DEVELOPER"). CITY and DEVELOPER are
collectively referred to herein as the "Parties" and individually as a "Party".
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the "Development Agreement Statute," Sections 65864, et seq., of
the Government Code. The Development Agreement Statute authorizes CITY to enter into an
agreement with any person having a legal or equitable interest in real property and to provide for
development of such property and to establish certain development rights therein. In addition,
MCAS Tustin Specific Plan Section 4.2.9 states: "prior to issuance of any permits or approval of
any entitlements within the Specific Plan area, all private development shall first obtain a
Development Agreement in accordance with Section 65864 et seq. of the Government Code and
Sections 9600 to 9619 of the Tustin City Code." Pursuant to the authorization set forth in the
Development Agreement Statute, CITY has enacted procedures for entering into development
agreements which are contained in Tustin City Code Sections 9600 to 9619.
B. CITY and DEVELOPER entered into that certain Tustin Legacy Disposition and
Development Agreement as of (the "DDA") pursuant to which CITY agreed to sell, and
533339.1533339.1
533339.1
DEVELOPER agreed to buy and develop, certain real property, all as more specifically set forth
in the DDA.
C. Pursuant to the DDA, DEVELOPER has an equitable and legal interest in the
Property (as defined below) in that it has the contractual right to purchase from CITY for
development of the Property.
D. Pursuant to Government Code Section 65864, the Legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result in a
waste of resources, escalate the cost of housing and other development to the consumer, and
discourage investment in and commitment to comprehensive planning which would make
maximum efficient utilization of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of the
project, the applicant may proceed with the project in accordance with existing policies, rules
and regulations, and subject to conditions of approval, will strengthen the public planning
process, encourage private participation in comprehensive planning, and reduce the economic
costs of development.
(c) The lack of public facilities, including, but not limited to, streets, sewerage,
transportation, drinking water, school, and utility facilities, is a serious impediment to the
u�M
development of new housing. Whenever possible, applicants and local governments may include
provisions in agreements whereby applicants are reimbursed over time for financing public
facilities."
In accordance with the legislative findings set forth in Government Code Section 65864,
CITY wishes to attain certain public objectives that will be furthered by this Agreement. This
Agreement will provide for the orderly implementation of the General Plan of CITY, and the
phased development and completion of the Project in accordance with the DDA and the Specific
Plan. This Agreement will further a comprehensive planning objective contained within the
City's General Plan, which is:
"To promote an economically balanced community with complimentary and
buffered land uses to include industrial, commercial, professional, multi - family and
single - family development."
E. The DDA, the Specific Plan and the development under the DDA and the Specific
Plan require a substantial early investment of money and planning and design effort by
DEVELOPER. Without the protection provided by this Agreement, uncertainty that the Project
may be completed in its entirety could result in a waste of public resources, escalate the cost of
public improvements, and discourage DEVELOPER's participation in the comprehensive public
improvements in the DDA and the Specific Plan. DEVELOPER's participation in the
implementation of the DDA and the Specific Plan will result in a number of public benefits.
These benefits require the cooperation and participation of CITY and DEVELOPER and could
533339.1
not be secured without mutual cooperation in and commitment to the comprehensive planning
effort that has resulted in the DDA and the Specific Plan.
F. DEVELOPER wishes to avoid certain development risks and uncertainties that
would, in the absence of this Agreement, deter and discourage DEVELOPER from making a
commitment to implement the DDA and the Specific Plan. These are as follows:
1. It is generally the law in California that, absent extraordinary
circumstances or the approval of a vesting subdivision map, an owner of the land does not obtain
a vested right to improve land until the issuance of a building permit for the improvements and
commencement of substantial construction pursuant to that permit. The result is a disincentive
for landowners to invest monies in the early completion of major infrastructure and other public
improvements as part of any project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by DEVELOPER. Uncertainty about
CITY's land use policies, rules and regulations could result in a waste of private resources,
escalate the cost of required public improvements, and escalate costs of proposed housing and
other uses.
G. The following assurances are of vital concern to DEVELOPER to offset or
remove the disincentives and uncertainties set forth in Paragraph F above:
1. Assurance to DEVELOPER that, in return for DEVELOPER's
commitment to the development of the Property that is contained in the DDA , any a pp roved
entitlements, and the Specific Plan, CITY will in turn remain committed to the DDA and the
Specific Plan;
2. Assurances to DEVELOPER that as DEVELOPER becomes obligated for
the costs of designing and constructing the public and private improvements included in the
DDA and the Specific Plan, and makes dedications, DEVELOPER will become entitled to
complete the private development portions of the DDA and the Specific Plan that justify those
obligations; and
3 Assurances to DEVELOPER that in CITY's administration of the DDA
and the Specific Plan, DEVELOPER will be allowed, consistent with the DDA and the Specific
Plan, to develop the housing types and intensities identified in the DDA and the Specific Plan.
These assurances provide for cooperation and participation of CITY and DEVELOPER and
could not be secured without mutual cooperation in and commitment to the comprehensive
planning effort that has resulted in the DDA and the Specific Plan.
H. California Government Code Sections 65864 et seq. authorize local agencies to
enter into binding development agreements with persons having legal or equitable interests in
real property for the development of such property. CITY wishes to enter into a development
agreement with DEVELOPER to secure the public benefits described above, and DEVELOPER
wishes to enter into a development agreement with CITY to avoid the development risks and
uncertainties and to obtain the assurances described above.
3
533339. i
I. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is
intended to augment and further the purposes and intent of the parties in the implementation of
the DDA and the Specific Plan. This Agreement, as a device for the implementation of the DDA
and the Specific Plan, will eliminate uncertainty in planning for and secure the orderly
development of the Project, ensure a desirable and functional community environment, provide
effective and efficient development of public facilities, infrastructure, and services appropriate
for the development of the Project, assure attainment of the maximum effective utilization of
resources within CITY, and provide other significant public benefits to CITY and its residents by
otherwise achieving the goals and purposes of the Development Agreement Statute. In exchange
for these benefits to CITY, DEVELOPER desires to receive the assurance that it may proceed
with development of the Project in accordance with the terms and conditions of this Agreement,
Existing Land Use Regulations, the DDA, and the Development Plan, all as more particularly set
forth herein.
J. CITY has determined that this Agreement and the Project are consistent with the
CITY's General Plan and the CITY's MCAS Tustin Specific Plan/Reuse Plan, as amended, and
as the same maybe further amended from time to time, and that the Development Agreement
complies with the findings established by Tustin City Code Section 9611 in that the Agreement:
(a) Is consistent with the objectives, policies, general land uses and programs
ROME'S
specified in the General Plan and the MCAS Tustin Specific Plan (except for
any Concessions and Incentives authorized for the project by the Tustin City
Council).
(b) Is compatible with the uses authorized in district in which the real property is
located (Planning Area 15). Note: the proposed apartment project complies
with the uses authorized by the MCAS Tustin Specific Plan.
(c) Is in conformity with the public necessity, public convenience, general
welfare, and good land use practices. Note: the proposed provision of 225
affordable apartment units meets this goal.
(d) Will not be detrimental to the health, safety, and general welfare. Note:
compliance with the MCAS Tustin Specific Plan, Tustin City Code, and other
regulations will ensure that the project will not be detrimental in any way.
(e) Will not adversely affect the orderly development of property. Note: the
proposed project is orderly and well designed.
(f) Will have a positive fiscal impact on the City. Note: the provisions of the
proposed DDA, DA and conditions of approval will ensure that the project
will have a positive fiscal impact on the City.
2
533339.1
K. On October 9, 2012, the Planning Commission held a public hearing on this
Agreement, made certain findings and determinations with respect thereto, and recommended to the City Council of CITY that this Agreement be approved. On , the City
�x
Council held a public hearing on this Agreement, considered the recommendations of the
Planning Commission, and adopted Ordinance No. , approving this Agreement and
authorizing its execution.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which are incorporated
herein by this reference, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
DEFINITIONS AND EXHIBITS.
1.1. Definitions. The following terms when used in this Agreement shall be defined as
follows:
Any capitalized word or term used in this Agreement shall have the definition or
meaning ascribed to such word or term as provided in the DDA, unless the word or term is
expressly provided in this Section 1.1 of this Agreement, in which event such word or term shall
have the definition or meaning as provided herein. Any word not specifically defined in the
DDA or this Agreement shall be interpreted by the Director of Community Development.
ROOM
1.1.1 "Agreement" is defined in the introductory paragraph.
L 1.2 "Applications" is defined in Section 3.6.2 below.
1.1.3 "Authority" is defined in the Recital B above.
1.1.4 "CITY" is defined in the introductory paragraph.
1.1.5 "DDA" is defined in the Recital B above.
1.1.6 "DEVELOPER" is defined in the introductory paragraph.
1.1.7 "Development Permits" means all permits, certificates and approvals
which may be required by CITY or other governmental authority for the development and
construction of the improvements for the Project, in each case in accordance with this
Agreement, the DDA, applicable Land Use Regulations and any required environmental
mitigation, including without limitation any engineering permits, grading permits, foundation
permits, construction permits and building permits.
1.1.8 "Development Plan" means the development (including, without
limitation, the Scope of Development) identified in the DDA, subject to further refinement as
required or contemplated by the DDA consistent with all applicable Entitlement Approvals and
all applicable Land Use Regulations.
5
533339]
1. 1.9 Reserved
1.1.10 "Effective Date" means the date the CITY's ordinance approving this
Agreement becomes effective.
1.1.11 "Entitlement Approvals" means all land use approvals and entitlements,
including all conditions of approvals, legally required by CITY or any other governmental
authority as a condition of subdivision of the Property, development of the Property, and
construction of the improvements in accordance with this Agreement, the DDA and applicable
Land Use Regulations, including, without limitation, Tentative and Final parcel maps, the
Concept Plans and Design Review approvals as may be applicable for proposed specific uses(s)
in connection with development of the Property.
1.1.12 "Existing Entitlement Approvals" means all Development Permits and
Entitlement Approvals approved or issued prior to the Effective Date. Existing Entitlement
Approvals include the Development Permits and Entitlement Approvals which are a matter of
public record on the Effective Date including Development Agreement (DA) 2012 -002, Concept
Plan (CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus, and
Concessions or Incentives authorized under Tustin City Code Section 9123 related to the
provision of 225 affordable residential apartment housing units in compliance with California
Government Code Section 65915(1) required for the proposed development of Tustin Legacy
Disposition Package I A- North.
1.1.13 "Existing Land Use Regulations" means all Land Use Regulations in
effect on the Effective Date. Existing Land Use Regulations include CITY's General Plan,
Zoning Code, the Specific Plan, and all other ordinances, resolutions, rules, and regulations of
CITY governing development and use of the Property in effect as of the Effective Date,
including without limitation the permitted uses of the Property, the density and intensity of use,
maximum height and size of proposed buildings, provisions for the reservation and dedication of
land for public purposes, and construction standards and regulations for Development
Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005,
Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City
Code Section 9123 related to the provision of 225 affordable residential apartment housing units
in compliance with California Government Code Section 65915(1) required for the proposed
development of Tustin Legacy Disposition Package 1 A -North.
1.1.14 "Land Use Regulations" means all laws, statutes, ordinances, resolutions,
codes, orders, rules, regulations and official policies of CITY governing the development and use
of land, including, without limitation, the permitted uses of the Property, the density or intensity
of use, subdivision requirements, timing and phasing of development, the maximum height and
size of proposed buildings, the provisions for reservation or dedication of land for public
purposes, and the design, improvement and construction standards and specifications applicable
to the development of the Property.
1.1.15 "LIFOC "refers to an instrument entitled "Lease in Furtherance of
Conveyance" executed by the United States Department of the Navy and dated May 13, 2002,
delivered to CITY provisionally in lieu of deed for portions of the Property impacted by
6
533339.1
hazardous materials, which expires and is supplemented by a conveyance deed upon the United
States Department of the Navy determining that the hazardous materials which impact a portion
of the Property have been adequately remediated.
1.1.16 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security - device lender, and their successors and assigns.
1.1.17 "Navy" is defined in Section 2.2 below.
1.1.18 "New CITY Laws" is defined in Section 3.9.1 below.
I.1.19 "Party" is defined in the introductory paragraph.
1. 1.20 "Project" means the development of the Property contemplated by the
Development Plan as such Development Plan may be further defined, enhanced or modified
pursuant to the provisions of this Agreement.
1. 1.21 "Property" means the real property described on Exhibit "A" and shown
on Exhibit `B" to this Agreement.
1. 1.22 "Reservations of Authority" means the rights and authority excepted from
the assurances and rights provided to DEVELOPER under this Agreement and reserved to CITY
under Section 3.9 of this Agreement.
1. 1.23 "Specific Plan" means the CITY's MCAS Tustin Specific Plan/Reuse
Plan, as amended, and as the same maybe further amended from time to time.
1. 1.24 "Subsequent Entitlement Approvals" means all Entitlement Approvals
required subsequent to the Effective Date in connection with development of the Property._The
Subsequent Entitlement Approvals may include, without limitation, the following: amendments
of the Entitlement Approvals, design review approvals (including site plan, architectural and
landscaping plan approvals), deferred improvement agreements and other agreements relating to
the Project, use permits, grading permits, building permits, lot line adjustments, sewer and water
connections, certificates of occupancy, subdivision maps (including tentative, vesting tentative,
parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, re-
zonings, encroachment permits, re- subdivisions, and any amendments to, or repealing of, any of
the foregoing. At such time as any Subsequent Entitlement Approval applicable to the Project
Site is approved by the City, then such Subsequent Entitlement Approval shall become subject to
all the terms and conditions of this Development Agreement applicable to Entitlement Approvals
and shall be treated as an "Entitlement Approval" under this Development Agreement.
1.1.25 "Successors In Interest" means any person having a legal or equitable
interest in the whole of the Property, or any portion thereof as to which such person wishes to
amend or cancel this Agreement.
1.1.26 "Vested Right" means the vested rights granted to DEVELOPER
pursuant to this Agreement, including, without limitation, the vested right to develop the
7
533339. I
Property in accordance with, and to the extent of the DDA and the provisions of this Agreement.
The Vested Elements shall be effective against, and shall not be amended by, any subsequent
ordinance or regulation, whether adopted or imposed by the City Council or through the
initiative or referendum process. The Vested Elements include are: (I)The General Plan of City
on the Agreement Date, including the General Plan Amendments ("Applicable General Plan");
(2) The Zoning Ordinance of City on the Agreement Date ("Applicable Zoning Ordinance"); (3)
other rules, regulations, ordinances and policies of City applicable to development of the Project
on the Agreement Date (collectively, together with the Applicable General Plan and the
Applicable Zoning Ordinance, the "Applicable Rules"); and (4) the Entitlement Approvals, as
they may be amended from time to time upon DEVELOPER's consent (such consent to be
granted at the sole discretion of DEVELOPER) and City's approval of the amendment in
accordance the terms of this Agreement.
1.2 Exhibits.The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit "A"- Legal Description of the Property.
Exhibit "B" - Map showing Property and its location.
r_ X61TAUMM_
2.1 Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out only in
accordance with the terms of this Agreement.
2.2 Equitable and Legal Interests in Property. Pursuant to the DDA, DEVELOPER
anticipates acquiring the Property. CITY and DEVELOPER agree that DEVELOPER's right to
acquire the Property pursuant to the DDA creates a sufficient legal and/or equitable interest in
order to enter into this Agreement. If DEVELOPER fails to acquire any portion of the Property,
then this Agreement shall automatically no longer be effective as to such portion of the Property
concurrently with the date upon which DEVELOPER's rights to acquire such portion of the
Property expire.
2.3 Term. The term of this Agreement shall commence on the Effective Date and
shall continue for a term of five (5) years thereafter but in no event for a term less than that
required to obtain the Certificate of Compliance referred to in Section 2.5 of this Agreement,
unless this term is terminated, modified, or extended by circumstances set forth in this
Agreement or by mutual written consent of the Parties. Notwithstanding the foregoing, the term
of this Agreement shall be automatically extended for the period that development is prevented
or delayed, in whole or in part, due to an event set forth in Section 8.11 below.
2.4 Assignme .
2.4.1 Assignment and Notification. The rights, interests and obligations
conveyed and provided herein to DEVELOPER benefit and are appurtenant to the Property.
DEVELOPER has the right to sell, assign and transfer any and all of its rights and interests and
533339.1
to delegate any and all of its duties and obligations hereunder; provided, however, that such
rights and interests may not be transferred or assigned except in strict compliance with the
provisions of Section 4.2 of the DDA, and the following conditions:
(a) DEVELOPER secures the written consent of CITY if required
pursuant to Section 4.2 of the DDA;
(b) Said rights and interests may be transferred or assigned only as an
incident of the transfer or assignment of the portion of the Property to which they relate,
including any transfer or assignment pursuant to a foreclosure of a mortgage or a deed in lieu of
a foreclosure;
(c) Prior to assignment or transfer, if required pursuant to this
Section 2.4 and Section 4.2 of the DDA, DEVELOPER shall notify CITY in writing of such
assignment or transfer, the portions of the Property to which the assignment or transfer will be
appurtenant, and the name and address (for purposes of notices hereunder) of the transferee or
assignee, together with the corresponding number of dwelling units and/or non-residential
entitlements which are proposed to be included within such transfer and DEVELOPER and the
assignee or transferee shall notify CITY whether the assignee or transferee will assume any of
DEVELOPER's obligations under this Agreement and which of DEVELOPER's obligations will
be assumed; and
(d) The assignee or transferee shall have entered into an Assignment
and Assumption Agreement if required by the DDA.
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect,
2.4.2 Subiect to Terms of Agreement. Following an assignment or transfer of
any of the rights and interests of DEVELOPER set forth in this Agreement in accordance with
Section 2.4.1, the assignee's exercise, use, and enjoyment of the Property shall be subject to the
terms of this Agreement to the same extent as if the assignee or transferee were DEVELOPER.
2.4.3 Release of DEVELOPER Upon Transfer. Notwithstanding the
assignment or transfer of portions or all of the Property or rights or interests under this
Agreement, DEVELOPER shall continue to be obligated under this Agreement unless released
or partially released by CITY with respect to DEVELOPER's obligations and the other duties
and obligations of DEVELOPER under this Agreement, pursuant to this paragraph, which
release or partial release shall be provided by CITY upon the full satisfaction by DEVELOPER
of the following conditions:
(a) DEVELOPER is not then in default under this Agreement;
(b) CITY has consented to the assignment or transfer if required under
Section 2.4.1;
ME WE
9
533339.1
(c) An assignee or transferee has assumed such duties and obligations
as to which DEVELOPER is requesting to be released; and,
(d) The assignee or transferee is financially able to assume the
obligations proposed for assignment and has demonstrated to the reasonable satisfaction of CITY
that adequate resources have been committed to the full performance of such obligations.
2.5 Property to Continue to be Subject to This Agreement. Until recordation of a
Certificate of Compliance as provided in Section 9 of the DDA, the Property shall continue to be
subject to this Agreement. In the absence of specific written agreement by CITY, pursuant to
which CITY expressly releases the DEVELOPER under the applicable provisions of the DDA or
this Agreement, no Transfer shall constitute a release of DEVELOPER from any of its
obligations under this Agreement and the DEVELOPER shall retain such obligations and remain
jointly and severally liable for such obligations. CITY shall cooperate with DEVELOPER, at no
cost to CITY, in executing in recordable form any document that CITY has approved to confirm
the termination of this Agreement as to any such Phase or parcel. Notwithstanding the
foregoing, (a) the burdens of this Agreement shall terminate as to any individual residential unit
that is sold or leased after issuance of a certificate of occupancy, and such parcels shall be
released from and shall no longer be subject to this Agreement (without the execution or
recordation of any further document or the taking of any further action) and (b) the benefits of
this Agreement shall continue to run as to any such parcel until Completion or until termination
of this Agreement, if earlier.
2.6 Amendment or Cancellation of Agreement. This Agreement may be amended or
cancelled in whole or in part only in the manner provided for in Government Code Section
65868 and Tustin CITY Code Section 9615. This provision shall not limit any remedy of CITY
or DEVELOPER as provided by this Agreement. Either party or Successor in Interest may
propose an amendment to or cancellation, in whole or in part, of this Agreement. Any
amendment or cancellation shall be by mutual consent of the parties or their Successors in
Interest except as provided otherwise in this Agreement, in Government Code Section 65865. 1,
or in the Tustin City Code. Any amendment to this Agreement which does not relate to the
Term of this Agreement, permitted uses of the Project, provisions for the reservation or
dedication of land the conditions, terms, restrictions and requirements relating to subsequent
discretionary approvals of City, or monetary exactions of DEVELOPER, shall be considered an
"Administrative Amendment". The City Manager or assignee is authorized to execute
Administrative Amendments on behalf of City and no action by the City Council (e.g. noticed
public hearing) shall be required before the parties may enter into an Administrative
Amendment. However, if in the judgment of the City Manager or assignee that a noticed public
hearing on a proposed Administrative Amendment would be required, City's Planning
Commission shall conduct a noticed public hearing to consider whether the Administrative
Amendment should be approved or denied, and shall make a recommendation to the City
Council on the matter. The Tustin City Council shall conduct a noticed public hearing to
consider the request and the Planning Commission's recommendation on the matter. At the
conclusion of the public hearing, the City Council may approve, deny, or conditionally approve
the amendment. The Vested Rights may not be amended except by amendment of this
ISO
Agreement; provided, however, that in the case of amendments affecting portions of the Project,
10
533339.1
only the consent of the owner of such portion shall be required so long as the amendment does
not diminish the rights appurtenant to or increase the burdens upon any other portion of the
Project Site. Any amendment of City land use regulations including, g, but not limited to, the
General Plan, applicable Specific Plan or City's zoning ordinance, shall not require amendment
of this Agreement. Instead, any such amendment shall be deemed to be incorporated into this
Agreement at the time that such amendment is approved by the appropriate City decision maker,
so long as such amendment is consistent with this Agreement.
2.7 Termination. This Agreement shall be deemed terminated and of no further effect
upon the occurrence of any of the following events:
Section 2.3. (a) Expiration of the stated term of this Agreement as set forth in
(b) Entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the CITY ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the
CITY ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this
Agreement, the DDA, Entitlement Approvals, and applicable Land Use Regulations, including
issuance of all required occupancy permits and acceptance by CITY or applicable public agency
of all required public improvements and dedications, and CITY issuance of a final DDA
Certificate of Compliance.
(e) Due to a default hereunder, as set forth in Article 5 below.
( Upon mutual written agreement of CITY and DEVELOPER.
Termination of this Agreement shall not constitute termination of any other land use
entitlements approved for the Property. Upon the termination of this Agreement, no party shall
have any further right or obligation hereunder except with respect to any obligation to have been
performed prior to such termination or with respect to any default in the performance of the
provisions of this Agreement which has occurred prior to such termination or with respect to any
obligations which are specifically set forth as surviving this Agreement.
2.8 Notices, Demands and Communications between the Parties. All notices,
demands, consents, requests and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed conclusively to have been duly given (a)
when hand delivered to the other party; (b) three (3) business days after such notice has been sent
by United States mail via certified mail, return receipt requested, postage prepaid, and addressed
to the other party as set forth below; or (c) the next business day after such notice has been
deposited with a national overnight delivery service reasonably approved by the parties (Federal
Express, United Parcel Service and U.S. Postal Service are deemed approved by the parties),
postage prepaid, addressed to the party to whom notice is being sent as set forth below with next -
business -day delivery guaranteed, provided that the sending party receives a confirmation of
11
533339.1
delivery from the delivery service provider. Unless otherwise provided in writing, all notices
hereunder shall be addressed as follows:
If to CITY: Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: City Manager
and Attention: Director of Community
Development
With a copy to: City Attorney, City of Tustin
Woodruff Spradlin & Smart
701 S. Parker Street, Suite 8000
Orange, CA 92868-4760
Attention: David E. Kendig, Esq.
If to DEVELOPER: Anton Legacy Tustin L.P.
c/o Steven L. Eggert
4630 Campus Drive, Suite 1 1 1
Newport Beach, CA 92660
With a copy to: St. Anton Partners
c/o Steven L. Eggert
18011 Street
Sacramento, CA 95811
With a copy to: Cox Castle Nicholson LLP
555 California Street, 10h Floor
San Francisco, CA 94104
Attention: Stephen C. Ryan, Esq.
Any party may by written notice to the other party in the manner specified in this
Agreement change the address to which notices to such party shall be delivered.
3.1 Public Benefits. This Agreement provides assurances that the Public Benefits
identified below will be achieved and developed in accordance with the applicable rules and
Entitlement Approvals and with the terms of the DDA, the Specific Plan and this Agreement,
and subject to the City's Reservation of Authority (Section 3.5). The Project will provide local
and regional public benefits to the City, including without limitation: new jobs, housing in
immediate adjacency to employment, affordable housing for persons and families of very low,
low and moderate incomes. ra
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533339.1
3.2 DEVELOPER Objectives. In accordance with the legislative findings set forth in
Government Code Section 65864 the DEVELOPER wishes to obtain reasonable assurances that
t the Project may be developed in accordance with the applicable rules and project approvals and
with the terms of this Agreement and subject to the City's Reservation of Authority. To the
extent of Project development, and as provided by Section 3.5.2, DEVELOPER anticipates
making capital expenditures or causing capital expenditures to be made in reliance upon the
DDA and this Agreement. In the absence of this Agreement, DEVELOPER would have no
assurance that it can complete the Project for the uses and to the density and intensity of
development set forth in this Agreement and the Existing Entitlement approvals. This
Agreement, therefore, is necessary to assure DEVELOPER that the Project will not be (1)
reduced or otherwise modified in density, intensity or use from what is set forth in the Existing
Entitlement Approvals, (2) subjected to new rules, regulations, ordinances or official policies or
plans which are not adopted or approved pursuant to the City's Reservation of Authority.
3.3 Mutual Objectives. Development of the Project in accordance with this
Development Agreement will provide for the orderly development of the Property in accordance
with the objectives set forth in the General Plan. Moreover, a development agreement for the
Project will eliminate uncertainty in planning for and securing orderly development of the
Property, assure installation of necessary improvements, assure attainment of maximum efficient
resource utilization within the City at the least economic cost to its citizens and otherwise
achieve the goals and purposes established by Government Code Section 65864. The Parties
believe that such orderly development of the Project will provide Public Benefits, as described in
Section 3. 1, to the City through the imposition of development standards and requirements under
the provisions and conditions of this Agreement, including without limitation: increased tax
revenues, installation of on -site and off -site improvements, and creation and retention of jobs.
Additionally, although development of the Project in accordance with this Agreement will
restrain the City's land use or other relevant police powers, this Agreement provides the City
with sufficient reserved powers during the term hereof to remain responsible and accountable to
its residents. In exchange for these and other benefits to City, the DEVELOPER will receive
assurance that the Project may be developed during the term of this Agreement in accordance
with the applicable rules, project approvals and Reservation of Authority, subject to the terms
and conditions of this Agreement.
3.4 Applicability of the Agreement. This Agreement does not: (1) grant density or
intensity in excess of that otherwise established in the Existing Entitlement Approvals; (2)
eliminate future discretionary actions relating to the Project if applications requiring such
discretionary action are initiated and submitted by the DEVELOPER of the Property after the
effective date of this Agreement; (3) guarantee that Property Owner will receive any profits from
the Project; or (4) amend the DDA, the Specific Plan, or the City's General Plan.
3.5 Agreement and Assurance on the Part of the DEVELOPER. In consideration for
the City entering into this Agreement, and as an inducement for the City to obligate itself to carry
out the covenants and conditions set forth in this Agreement, and in order to effectuate the
premises, purposes and intentions set forth in this Agreement, DEVELOPER hereby agrees as
follows:
13
533339.1
3.5.1 Project Development. DEVELOPER agrees that it will use commercially
reasonable efforts, in accordance with its own business judgment and taking into account market
conditions and economic considerations, to undertake any development of the Project in
accordance with the terms and conditions of the DDA, this Agreement and Existing Entitlement
Approvals.
3.5.2 Additional Obligations of DEVELOPER as Consideration for this
Agreement. In addition to the obligations identified in Section 3.5.1, the development
assurances provided by this Agreement and the resulting construction of the Project will result in
the following:
a. Construct a 225-unit residential apartment complex at Disposition Package
Site I A-North, Tustin Legacy, including 88 very low income, 73 low
income, and 64 moderate income rental units, consistent with the DDA,
this Agreement and Project approvals.
b. Construct all of the vertical, horizontal, and local DEVELOPER
improvements identified in the DDA.
c. Comply with the DDA, Housing/Regulatory Agreement, Tustin City
Code, MCAS Tustin Specific Plan, state and federal law, required
mitigation measures, and all conditions of approval.
d. The DEVELOPER shall not oppose or contest any future creation or
establishment by the City of Tustin of a landscape and lighting district,
master maintenance association, assessment district, or any other method
or means consistent with the DDA determined by the City necessary for
funding of the maintenance of the public right-of-way, landscape
easements, public parks or of the various municipal services and operating
expenses associated with Tustin Legacy.
e. Pay all required development related fees, including but not limited to any
required Backbone Infrastructure fee, etc.
f. Focal Park: DEVELOPER shall be responsible for design, construction,
and associated costs of certain Local Improvement (Non-Tustin Legacy
Backbone Program Improvements) to include the following:
1. The full improvement of the 4.7-acre Focal Park designed to City
public park standards to be located on Lot MMM at the southwest
comer of Legacy Road and Park Avenue. Full improvements
include all water lines, gas, storm drainage, telephone, electricity,
cable TV, sewage and reclaimed water, telemetry and any
necessary telecommunication systems and as shown in the MCAS
Tustin Specific Plan and/or Irvine Ranch Water District Sub Area
Master Plan for Tustin Legacy, and/or as approved by the City and
responsible private utility purveyors. All scope of work for design
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533339.1
and construction includes all surveying, rough and precise grading,
z import and export of dirt as required, asphalt paving, including any
necessary overlays, driveways, sidewalks, concrete, curb and
gutter, landscaping, irrigation, street lighting, all traffic control,
striping and signage and other work to construct improvements in
accordance with Tustin City standards.
2. The Focal Park will serve as one of the open space features in
Neighborhood G. As part of the overall tree - planting scheme, the
park shall include similar themed street trees that are matched
along the streetscape of Legacy Road and Park Avenue. The focal
park shall be designed to incorporate more unstructured informal
and child play, with other more passive park experiences. The
focal park program as envisioned includes amenities such as:
3.6 Agreement and Assurances on the Part of the City. In consideration for
DEVELOPER entering into this Agreement, and as an inducement for DEVELOPER to obligate
itself to carry out the covenants and conditions set forth in this Agreement, and in order to
effectuate the purpose of this Agreement, the City hereby agrees as follows:
3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum
extent permitted by law, DEVELOPER has the vested right to develop the Project subject to the
terms and conditions of the DDA, this Agreement, the Specific Plan, Tustin City Code, state and
federal law, and Project Approvals pursuant to the City's Reservation of Authority. Other than
as expressly set forth herein, during the Term of this Agreement, the terms and conditions of
development applicable to the Property, including but not limited to the permitted uses of the
Property, the density and intensity of use, maximum height and size of proposed buildings, the
15
533339.1
a.
Informal and open Turf area;
b.
Shade trees and flowering accent trees;
c.
Shrubs;
d.
Groundcover;
e.
Hardscape, accent and enhanced paving;
f.
A minimum of 100 lineal feet of low garden walls with
design to be approved by City (i.e., stucco, brick, split face,
or rock facings);
g.
Benches;
h.
Trash receptacles;
i.
Picnic tables ;
j.
Smaller Shade structures;
k.
Low level lighting;
1.
Small tot lots for two age group;
m.
Structure and directional signage;
n.
Irrigation;
o.
City Park ID Monument;
p.
Restroom and storage building; and, separate parking lot
3.6 Agreement and Assurances on the Part of the City. In consideration for
DEVELOPER entering into this Agreement, and as an inducement for DEVELOPER to obligate
itself to carry out the covenants and conditions set forth in this Agreement, and in order to
effectuate the purpose of this Agreement, the City hereby agrees as follows:
3.6.1 Applicable Regulations; Vested Right to Develop. To the maximum
extent permitted by law, DEVELOPER has the vested right to develop the Project subject to the
terms and conditions of the DDA, this Agreement, the Specific Plan, Tustin City Code, state and
federal law, and Project Approvals pursuant to the City's Reservation of Authority. Other than
as expressly set forth herein, during the Term of this Agreement, the terms and conditions of
development applicable to the Property, including but not limited to the permitted uses of the
Property, the density and intensity of use, maximum height and size of proposed buildings, the
15
533339.1
design, improvement and construction standards and specifications applicable to the
development of the Property, including any changes authorized pursuant to Section 3.5.4, and the
provisions for the reservation and dedication of land as needed for public purposes pursuant to
Governmental Requirements, shall be those set forth in the DDA, Existing Land Use
Regulations, and Entitlement Approvals. In connection therewith and subject to the terms of this
Agreement including the Reservations of Authority, DEVELOPER shall have the Vested Rights
to: (1) carry out and develop the Property in accordance with the DDA (which includes the
Development Plan), Existing Land Use Regulations, Entitlement Approvals and the provisions of
this Agreement; (2) to receive from CITY all future entitlement approvals for the Project that
CITY finds are consistent with and implement the DDA (which includes the Development Plan),
Existing Land Use Regulations, Entitlement Approvals and this Agreement, and (3) not have any
Entitlement Approvals conditioned or delayed for reasons inconsistent with the DDA (or as
contemplated in the DDA which includes the Development Plan), Existing Land Use
Regulations, Entitlement Approvals or this Agreement.
To the extent any changes in the Existing Land Use Regulations, or any provisions of future
General Plans, Specific Plans, Zoning Ordinances or other rules, regulations, ordinances or
policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order,
moratorium, or other means, adopted by the City Council, Planning Commission, or any other
board, commission, agency, committee, or department of City, or any officer or employee
thereof. or by the electorate) of CITY (collectively, "Future Rules ") are not in conflict with the
Vested Right, such Future Rules shall be applicable to the Project. For purposes of this
Section 3.6.1, the word "conflict" means Future Rules that would (i) alter the Vested Rights, or Mir
(ii) frustrate in a more than insignificant way the intent or purpose of the Vested Rights in
relation to the Project, or (iii) materially increase the cost of performance of, or preclude
compliance with, any provision of the Vested Right, or (iv) delay in a more than insignificant
way development of the Project, or (v) limit or restrict the availability of public utilities, services,
infrastructure of facilities (for example, but not by way of limitation, water rights, water
connection or sewage capacity rights, sewer connections, etc.) to the Project, or (vi) impose
limits or controls in the rate, timing, phasing or sequencing of development of the Project. To
the extent that Future Rules conflict with the Vested Rights, they shall not apply to the Project
and the Vested Rights shall apply to the Project.
3.6.2 Availability of Public Services. To the maximum extent permitted by law
and consistent with its authority, City shall assist Developer in reserving such capacity for sewer
and water services as may be necessary to serve the Project.
3.7 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement including the Reservations of Authority (and notwithstanding
any future action of CITY or its citizens, whether by ordinance, resolution, initiative or
otherwise), the rules, regulations, and official policies governing the Project, including, without
limitation, the permitted uses of the Property, the density and intensity of use of the Property, the
maximum height and size of proposed buildings, the design, improvement and construction
standards and specifications applicable to the Project, including any changes authorized pursuant
to Section 3.5.4, the subdivision of land and requirements for infrastructure and public
improvements, and other terms and conditions of the Project, shall be the DDA, Existing Land
HMO
533339.1
Use Regulations, and the provisions of this Agreement. CITY shall accept for processing and
review and take action on all applications for Subsequent Entitlement Approvals as provided in
Section 39 below. In connection with any Subsequent Entitlement Approval, CITY shall
exercise discretion in accordance with the same manner as it exercises its discretion under its
police powers, including the Reservations of Authority; provided however, that such discretion
shall not prevent development of the Project as set forth in this Agreement.
3.8 Timing of Development. The timing of development will be as set forth in the
DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging
and providing that DEVELOPER will adhere to the terms of the DDA regarding the timing of
development.
3.9 Changes and Amendments. . By approving the Project Approvals, City has made
a policy decision that the Project is in the best interests of the public health, safety and general
welfare. Accordingly, City shall not use its discretionary authority in considering any
application for a Subsequent Approval, including, but not limited to, the City's administrative
consideration of planned unit development permits, conditional use permits and subdivision
maps, within the Project Site to change the policy decisions reflected by the Project Approvals or
otherwise to prevent or delay development of the Project as set forth in the Project Approvals.
MEN Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy
ti decisions and shall be issued by City so long as they comply with this Agreement and Applicable
s Law and are not inconsistent with the Project Approvals as set forth above. The parties
acknowledge that refinement and further development of the Project will require Subsequent
Entitlement Approvals and may demonstrate that changes are appropriate and mutually desirable
in the Existing Entitlement Approvals. In the event DEVELOPER finds that a change in the
Existing Entitlement Approvals is necessary or appropriate, DEVELOPER shall apply for a
Subsequent Entitlement Approval to effectuate such change and CITY shall process and act on
such application in accordance with the Existing Land Use Regulations, except as otherwise
provided by this Agreement including the Reservations of Authority. If approved, any such
change in the Existing Entitlement Approvals shall be incorporated herein by reference as though
fully set forth, shall thereafter be deemed to be an Existing Entitlement Approval for all purposes
of this Agreement and may be further changed from time to time as provided in this Section.
Unless otherwise required by law, as determined in CITY's reasonable discretion, a change to
the Existing Entitlement Approvals requested by DEVELOPER or an approved assignee shall be
deemed "minor" and shall not require an amendment to this Agreement.
In an instance when CITY has reasonably determined that a proposed change to the Existing
Entitlement Approvals constitutes a minor change pursuant to this Section 3.4, CITY and
DEVELOPER shall cooperate to ensure the preparation of any environmental analysis deemed
appropriate and necessary pursuant to CEQA. Furthermore, CITY and DEVELOPER shall
cooperate to ensure the filing of a notice of determination in this regard. r
17
533339.1
3.10 Reservations of Authority. Notwithstanding any other provision of this
Agreement to the contrary, the laws, rules, regulations and official policies set forth in this
Section 3.5 shall apply to and govern development of the Property and Project to the extent set
forth herein.
3.10.1 Consistent Future City Regulations. City ordinances, resolutions, and
official policies, including initiative measures, adopted or approved after the Effective Date
pursuant to procedures provided by law which are applied on a City-wide basis ("New CITY
Laws") shall apply to and govern development of the Property, provided that any New CITY
Laws which reduce the density or intensity of the Project below that permitted by the Existing
Land Use Regulations, the Existing Entitlement Approvals or the DDA, alter the permitted uses
of the Property, reduce the maximum height or size of any permitted buildings, impose
additional obligations in connection with the reservation or dedication of land for public
purposes beyond the requirements identified in the DDA, or limit the rate, timing, or sequencing
of development of the Property from that required in the DDA or in any Entitlement Approvals,
shall be deemed inconsistent with this Agreement and shall not be applicable to the development
of the Property and Project.
3
3. 10.2 Overriding State and Federal Laws. CITY shall not be precluded from
adopting and applying New CITY Laws to the Project and development of the Project to the
extent that such New CITY Laws are required to be applied by State or Federal laws or
regulations and which would override DEVELOPER's Vested Rights as set forth in this
Agreement, provided however, that (i) DEVELOPER does not waive its right to challenge or 01
MEMO
contest the validity of such State, Federal, or New CITY Laws or regulation; and (ii) such new
CITY Law shall only be applied to the Project and development of the Project to the extent
necessary to comply with such new State or Federal law or regulation. In the event that such
State or Federal law or regulation (or New CITY Laws undertaken pursuant thereto) prevents or
precludes substantial compliance with one or more provisions of the DDA, the Existing Land
Use Regulations or this Agreement, the Parties agree to consider in good faith amending or
suspending such provisions of this Agreement as may be necessary to comply with such State or
Federal laws (or New CITY Laws), provided that no Party shall be bound to approve any
amendment to this Agreement unless this Agreement is amended in accordance with the
procedures applicable to the adoption of development agreements as set forth in the
Development Agreement Statute and Tustin CITY Code and each Party retains full discretion
with respect thereto. DEVELOPER acknowledges that any provision of this Section does not
apply to DEVELOPER's acknowledgement and agreement in the DDA that any current or
subsequent provisions of State Law with regards to density bonuses and other regulatory
incentives for provision of affordable housing do not apply to the Project or Property.
3.10.3 Public Health and Safety. Nothing in this Agreement shall preclude the
City Council of the CITY from adopting and applying New CITY Laws which the City Council
of the CITY finds are reasonably necessary to protect persons on the Property or in the
immediate community, or both, from conditions dangerous to their health or safety
notwithstanding that the applications of such New CITY Laws, or other similar limitation would
result in the impairment of DEVELOPER's Vested Rights under the Agreement or the Existing
Land Use Regulations. In determining whether any such New CITY Laws are reasonably
M-11
533339.1
necessary to protect persons as set forth above the City Council shall make findings, based on
evidence presented to and accepted by the City Council that the changes are reasonably
necessary to protect the public health or safety. The provisions of this Section 3.5.3 do not apply
to any measure adopted by initiative.
3.10.4 Uniform Construction Codes and Regulations. Policies and rules
governing engineering and construction standards and specifications applicable to public and
private improvements, including all uniform codes adopted by CITY and any local amendments
to those codes adopted by CITY in the future shall apply to the Project and Property.
3.10.5 Police Power. The Parties acknowledge and agree that CITY can not
contractually limit its own police power, its power to address actual or potential threats to public
health or safety, including but not limited to environmental regulations (including without
limitation NPDES) or its emergency authority or powers. The foregoing limitations,
reservations, and exceptions are intended to reserve to CITY all of its powers that cannot be
limited. In all respects not provided for in this Agreement, CITY shall retain full rights to
exercise its police powers to regulate development of the Project and Property. Any uses or
development requiring a concept plan, design review, tentative tract map, conditional use permit,
variance, or other Entitlement Approvals in accordance with Existing Land Use Regulations
shall require a permit or approval pursuant to this Agreement and notwithstanding any other
provision set forth herein, this Agreement is not intended to vest DEVELOPER'S right to
issuance of such permit or approval.
3.11 Processing,
3.11.1 Subdivisions. A subdivision, as defined in Government Code
Section 66473.7, shall not be approved unless a tentative map for the subdivision complies with
the provisions of said Section 66473.7. This provision is included in this Agreement to comply
with Section 65867.5 of the Government Code.
3.11.2 Subsequent Entitlement Approvals. By approving the Project Approvals,
City has made a final policy decision that the Project is in the best interests of the public health,
safety and general welfare. Accordingly, City shall not use its discretionary authority in
considering any application for a Subsequent Approval, including, but not limited to, the City's
administrative consideration of planned unit development permits, conditional use permits and
subdivision maps, within the Project Site to change the policy decisions reflected by the Project
Approvals or otherwise to prevent or delay development of the Project as set forth in the Project
Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those
final policy decisions and shall be issued by City so long as they comply with this Agreement
and Applicable Law and are not inconsistent with the Project Approvals as set forth above.
CITY shall employ all lawful actions capable of being undertaken by CITY to promptly (i)
accept all complete applications for Subsequent Entitlement Approvals (collectively,
"Applications ") and (ii) process and take action upon Applications in accordance with applicable
law with a goal of completing the review within time frames identified in the DDA; provided
however, that CITY shall not be deemed in default under this Agreement should such time
frame(s) not be met. To the extent that DEVELOPER desires that CITY plan check or process
an Application on an expedited basis and to the extent that it requires an additional expense
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533339.1
beyond the customary expense applicable to the general public, CITY shall inform III-=
DEVELOPER of such additional expense, including the cost of overtime and private consultants
and other third-parties. If acceptable to DEVELOPER, DEVELOPER shall pay the additional
cost and CITY shall use best efforts to undertake the most accelerated processing time as
lawfully possible utilizing overtime and the services of private consultants and third parties to the
extent available. Upon the written request of DEVELOPER, CITY shall inform DEVELOPER
of the necessary application requirements for any requested CITY approval or requirement
relating to the Project. CITY may deny an application for a Subsequent Entitlement Approval
only if such application does not comply with the DDA, this Agreement or Existing Land Use
Regulations or is materially inconsistent with the Existing Entitlement Approvals.
3.11.3 Filins. DEVELOPER shall exercise reasonable efforts to file
applications for permits and Entitlement Approvals within the time frames and schedules as
generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain permits
and Entitlement Approvals within the time frames identified in the DDA; provided, however,
that failure solely to comply with such time frame(s) shall not be deemed to be a default under
this Agreement.
3.11.4 Cooperation. CITY and DEVELOPER shall cooperate in processing all
applications for permits and approvals for the Project, provided, however, that such cooperation
shall not include any obligation of CITY to incur any un-reimbursed expense, and CITY shall be
entitled, subject to the terms of this Agreement, the DDA and DEVELOPER's rights hereunder,
to exercise all discretion to which it is entitled by law in processing and issuing any permits and
MINIM
approvals for the Project.
3.11.5 Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals, CITY shall process
applications for permits and approvals as provided herein to the fullest extent allowed by law and
DEVELOPER may proceed with development of the Project pursuant to the DDA, Existing
Land Use Regulations, and Entitlement Approvals to the fullest extent allowed by law.
3.12 Infrastructure and Public Facilities. Construction of infrastructure and public
facilities will be as set forth in the DDA. DEVELOPER's payment of park fees pursuant to the
DDA shall be deemed to satisfy any requirement imposed upon DEVELOPER for the dedication
or development of parkland pursuant to the Tustin City Code in connection with development of
the Project and Property.
3.13 Dedications. DEVELOPER acknowledges and agrees that it is required (and will
be required) to dedicate to CITY and other public agencies on the approved parcel map, or in
conjunction with Entitlement Approvals, certain required dedications as required by the DDA,
and Existing Land Use Regulations, or by DEVELOPER pursuant to the FINAL EIS/EIR for the
MCAS Tustin Project, as amended by either supplemental documentation or addendum and as
required by DEVELOPER pursuant to DEVELOPER'S assumption of CITY MCAS Tustin
obligations under the "Agreement Between the City of Irvine and the City of Tustin Regarding
the Implementation, Timing, Funding of Transportation/Circulation Mitigation for the MCAS
Tustin Project" and the "Amendment to the Joint Exercise of Powers Agreement Between the
NZ
533339.1
City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation
MEN Improvement Authority ".
3.14 Regulation by Other Public Agencies It is acknowledged by the parties that other
public agencies not within the control of CITY possess authority to regulate aspects of the
Project and development of the Property separately from or jointly with CITY and this
Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate
fully, at no out of pocket cost to CITY, with DEVELOPER in obtaining any required permits or
compliance with the regulations of other public agencies provided such cooperation is not in
conflict with any laws, regulations or policies of CITY.
3.15 Tentative Tract Map Extension. The tentative parcel map, heretofore or hereafter
approved in connection with development of the Property, shall be eligible for extensions of time
as provided in Government Code Section 66452.6, except that any extension shall be consistent
with any applicable performance schedule as provided or established in the DDA and shall not
be deemed or considered in any way an extension of any DEVELOPER obligations under the
DDA.
4. ANNUAL REVIEW. Timing and Annual Review. The Tustin City Council shall review
DEVELOPER's performance under this Agreement at least every twelve (12) months from the
Effective Date until expiration of the Agreement. In connection with such review, both the
CITY and DEVELOPER shall have a reasonable opportunity to assert matters which either
believes have not been undertaken in accordance with this Agreement, to explain the basis for
such assertion, and to receive from the other party a justification of its position on such matters.
4.1 Review Procedure. CITY shall provide notice to DEVELOPER and deliver to
DEVELOPER or it successor in interest a copy of all public staff reports, documents and related
exhibits concerning CITY's review of DEVELOPER's performance hereunder at least 30 days
prior to any date proposed for City Council review of performance under the Agreement.
4. 1.1 DEVELOPER or its Successor in Interest shall demonstrate good faith
compliance with the terms of this Agreement and shall furnish evidence of good faith
compliance, as CITY, in its reasonable exercise of its discretion, may require. Evidence of good
faith compliance may include the following:
(a) conformance with the DDA and its scope of development and
schedule of performance;
(b) conformance with the requirements of the Specific Plan; and
CITY. (c) conformance with provisions of this Agreement identified by the
4.1.2 DEVELOPER or its successor in interest shall have the opportunity to
respond to CITY's evaluation of DEVELOPER's performance, either orally or in a written
statement, at DEVELOPER's election.
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533339.
4.1.3 The City Council may refer the matter to the Planning Commission for
further proceedings or for a report and recommendation.
4.2 Notice of Non-Compliance. If on the basis of the annual review, the CITY
determines, based upon substantial evidence, or at any other time during the term of this
Agreement, either Party concludes that the other party has not complied in good faith with the
terms of this Agreement, then such Party may issue a written "Notice of Non - Compliance"
specifying the grounds therefore and all facts demonstrating such non - compliance. The Party
receiving a Notice of Non- Compliance shall have forty -five (45) days to respond in writing to
said notice by specifying either how its non - compliance has been cured (or is diligently being
cured) or the grounds upon which it believes that it is complying with this Agreement. The time
frame to respond to a Notice of Non - Compliance may be extended by mutual agreement of the
Parties. If the response to the Notice of Non - Compliance has not been received in the offices of
the Party alleging non - compliance within the prescribed forty -five (45) days, or within such
other period of time as mutually agreed, the Notice of Non - Compliance shall be conclusively
presumed to be valid, and if the non - complying Party is DEVELOPER, the CITY may
commence proceedings on termination or modification of the Agreement pursuant to the Tustin
City Code and Section 4.3 of this Agreement. If the party receiving a Notice of Non - Compliance
responds within the time period provided above, the parties agree to meet in good faith at
reasonable times and from time to time for a period of at least sixty (60) days to arrive at a
mutually acceptable resolution of the matter(s) asserted in the Notice of Non - Compliance and
disputed in the response. If after sixty (60) days, or any extension of time as mutually agreed to
by the Parties, the Parties have failed to arrive at a mutually acceptable resolution of such I
matter(s), either Party may pursue any remedy at law or in equity, and the CITY may commence
proceedings on termination or modification of this Agreement pursuant to Sections 9617 and
9618 of the Tustin City Code and Section 4.3 of this Agreement.
4.3 Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement after following the procedure for a Notice of
Non - Compliance under Section 4.2 of this Agreement, the City Council shall give notice to
DEVELOPER or successor in interest thereto of its intention to do so. The Notice shall contain
all information required by Tustin City Code Section 9618. At the time and place set for the
hearing on modification or termination, the City Council may refer the matter back to the
Planning Commission for further proceedings or for a report and recommendation. The City
Council may take such action as it deems necessary to protect the interests of the CITY,
including but not limited to, the receipt of additional evidence as to DEVELOPER's compliance
with the terms of this Agreement. The decision of the City Council shall be final, subject only to
judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
4.4 Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
DEVELOPER is found to be in compliance with this Agreement, CITY shall, upon request of
the DEVELOPER, issue a Certificate of Compliance (the "Certificate ") to DEVELOPER stating
that after the most recent periodic review and based upon the information known or made known
to the City Council that: (1) this Agreement remains in effect, and (2) DEVELOPER is not in
default. The Certificate shall be in recordable form, shall contain information necessary to
communicate constructive record notice of the findin g compliance, and shall state the
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533339.1
anticipated date of commencement of the next periodic review. DEVELOPER may record the
FEW
Certificate with the Count y Recorder.
5. DEFAULT REMEDIES AND TERMINATION.
5.1 Default Procedure. In addition to procedures identified in Section 4.2 and/or 4.3
of this Agreement, a non - defaulting party (the "Non- Defaulting Party ") at its discretion may
elect to declare a default under this Agreement in accordance with the procedures hereinafter set
forth for any failure or breach of any other Party ( "Defaulting Party ") to perform any material
duty or obligation of said Defaulting Party in accordance with the terms of this Agreement and
provided the Notice of Non - Compliance procedures in Section 4.2 have first been exhausted.
However, the Non - Defaulting Party must provide written notice to the Defaulting Party setting
forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party
to cure such breach or failure. The Defaulting Party shall be deemed to be in "default" of its
obligations set forth in this Agreement if the Defaulting Party has failed to take action and cure
the default within ten (10) days after the date of such notice (for monetary defaults) or within
thirty (30) days after the date of such notice (for non- monetary defaults). If, however, a non -
monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting
Party does each of the following:
(a) notices the Non - Defaulting Party in writing with a reasonable explanation
as to the reasons the asserted default is not curable within the thirty (30) day period;
ME
MIN (b) notifies the Non - Defaulting Party in writing of the Defaulting Party's
proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty (30) day period;
(d) makes periodic written reports to the Non - Defaulting Party as to the
progress of the program of cure, and:
(e) diligently prosecutes such cure to completion,
then the Non - Defaulting Party shall grant in writing the Defaulting Party such additional time
as determined by the Non - Defaulting Party as reasonably necessary to cure such default.
5.2 Default Remedies. After complying with Section 5. 1, in the event of an uncured
default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct or
remedy such default, enjoining any threatened or attempted violation, enforce the terms of this
Agreement by specific performance, or pursue any other legal or equitable remedy.
Furthermore, CITY, in addition to or as an alternative to exercising the remedies in this
Section 5.2, in the event of a material default by DEVELOPER, may give notice of its intent to
terminate or modify this Agreement pursuant to Section 4.3, in which event the matter shall be
scheduled for consideration and review by the City Council in the manner set forth in Tustin City
Code Section 9618. The decision of the City Council shall be final, subject only to judicial
review pursuant to California Code of Civil Procedure Section 1094.5(b).
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533339.1
5.3 DEVELOPER'S Remedies. In the event that the CITY is in material default
under this Agreement, the DEVELOPER shall be entitled to any or all of the following remedies:
(1) Seeking mandamus or special writs, injunctive relief, or specific performance of this
Agreement; (2) Modifications or termination of this Agreement; or (3) Seeking any other remedy
available at law or in equity, provided, however, except as provided in Section 8.10 below, the
DEVELOPER agrees and covenants on behalf of itself and it successors and assigns, not to sue
CITY for damages or monetary relief for any breach of this Agreement or arising out of or
connected with any dispute, controversy or issue regarding the application or effect of this
Agreement, or for consequential damages arising out of or connected with any dispute,
controversy, or issues regarding the application or effect of the Existing Land Use Regulations,
or any Development Permits or Entitlement Approvals sought in connection with development or
use of the Property or Project, or any portion thereof. DEVELOPER acknowledges that the
CITY would not have entered into this Agreement if the CITY could be held liable for general,
special or compensatory damages for any default or breach arising out of this Agreement and
that DEVELOPER has adequate remedies other than general, special or compensatory damages,
to secure the CITY's compliance with its obligations under this Agreement. Therefore,
DEVELOPER agrees that the CITY, its officers, employees and agents shall not be liable for any
general, special or compensatory damages and that this section shall apply to any successor,
assignee or transferee of the DEVELOPER.
5.4 Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement, the Existing
Land Use Regulations, the DDA (including without limitation the Development Plan), or IN
ON
Entitlement Approvals for the Project ("Third Party Challenge"), DEVELOPER shall have the
right but not the obligation to defend any Third Party Challenge, at its expense. DEVELOPER,
in defending any Third Party Challenge shall further have the right to settle such Third Party
Challenge, provided that nothing herein shall authorize DEVELOPER to settle such Third Party
Challenge on terms that would constitute an amendment or modification of this Agreement, the
Existing Regulations, or Development Plan unless such amendment or modification is approved
by the CITY in accordance with applicable legal requirements, and CITY reserves its full
legislative discretion with respect thereto. CITY shall not incur any costs or take any actions to
defend such Third Party Challenge without DEVELOPER's approval. DEVELOPER shall also
indemnify and hold harmless the CITY and its agents, officials and employees from and against
all claims, losses, or liabilities assessed or awarded against the CITY by way of judgment,
settlement, or stipulation.
6. INDEMNITY BY DEVELOPER. DEVELOPER agrees to indemnify, defend, and hold
harmless CITY, CITY's designees, and their respective elected and appointed officials, boards,
commissions, agents, contractors, and employees from and against any and all actions, suits,
claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited
to attorney's fees and costs) which may arise, directly or indirectly, from the acts, omissions, or
operations of DEVELOPER or DEVELOPER's agents, contractors, subcontractors, agents, or
employees pursuant to this Agreement, but excluding any loss resulting from the intentional or
active negligence of the CITY, CITY's designee, or each of their respective elected and
appointed officials, boards, commissions, officers, agents, contractors, and employees.
IN
DEVELOPER shall select and retain counsel reasonably acceptable to the CITY to defend any PON-
24
533339A
action or actions and DEVELOPER shall pay the cost thereof. The indemnity provisions set forth
in this Agreement shall survive termination of the Agreement.
7. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not
prevent or limit DEVELOPER, in any manner, from encumbering the Property or any portion
thereof or any improvement thereon by any mortgage, deed of trust or other security device
securing financing with respect to the Property, subject to any terms or provisions of the DDA to
the extent relating to the encumbrance of the Property by any mortgage, deed of trust or other
security device. Any Mortgagee of the Property shall be entitled to the following rights and
privileges;
(a) This Agreement shall be superior to the lien of any mortgage.
Notwithstanding the foregoing, neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by law, and any acquisition
or acceptance of title or any right or interest in or with respect to the Property or any portion
thereof by a mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination or otherwise) shall be subject to the terms and conditions of this
Agreement and any such mortgagee who takes title to the Property or any portion thereof shall be
entitled to benefits arising under this Agreement.
(b) Each Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, shall upon written request in writing to CITY, be entitled to receive
written notice from CITY of results of the Annual Review and of any default by DEVELOPER
in the performance of DEVELOPER's obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of
any notice of default given to DEVELOPER under the terms of this Agreement, CITY shall
provide a copy of that notice to the Mortgagee concurrently with delivery of the notice of default
to DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure the default
during the remaining cure period allowed such party under this Agreement (including any
extended cure period necessary in order to allow the Mortgagee to obtain title to the Property and
cure the default).
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have
an obligation or duty under this Agreement to perform any of DEVELOPER's obligations or
other affirmative covenants of DEVELOPER hereunder, or to guarantee such performance;
except that (i) the Mortgagee shall have no right to develop the Property without fully complying
with the terms of this Agreement, the DDA, Existing Land Use Regulations and Entitlement
Approvals and (ii) to the extent that any covenant to be performed by DEVELOPER is a
condition precedent to the performance of a covenant by CITY, the performance thereof shall
continue to be a condition precedent to CITY's performance hereunder.
25
s33339A
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee
shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to
such Mortgagee. CITY's terms are subject to lender review.
8. MISCELLANEOUS PROVISIONS.
8.1 Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be recorded with the Orange County Recorder by the City Clerk within ten (10)
days after CITY executes this Agreement, as required by Section 65868.5 of the Government
Code. If the parties to this Agreement or their Successors in Interest amend or cancel this
Agreement as provided for herein and in Government Code Section 65868, or if CITY
terminates or modifies this Agreement as provided for herein and in Government Code Section
65865.1 for failure of DEVELOPER to comply in good faith with the terms or conditions of this
Agreement, the City Clerk shall have notice of such action recorded with the Orange County
Recorder.
8.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the matters set forth herein, and there
are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence of
any such representations, understandings or covenants shall be admissible in any proceeding of
any kind or nature to interpret or determine the terms or conditions of this Agreement.
8.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
8.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the internal laws of the State of
California without reference to choice of law or conflicts of law provisions. This Agreement
shall be construed as a whole according to its fair language and common meaning to achieve the
objectives and purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in interpreting this
Agreement, all parties having been represented by counsel in the negotiation and preparation
hereof. The decision of the City Council shall be final, subject only to judicial review pursuant
to California Code of Civil Procedure Section 1094.5(b).
8.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.6 Singular and Plural. As used herein, the singular of any word includes the plural.
8.7 Time of Essence. Subject to the following sentence, time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a certain period of
time or by a particular date that ends or occurs on a non-business day, then such period or date
26
533339.1
shall be extended until the immediately following business day. As used herein, "business day"
ME
means any day other than Saturday, Sunday or a federal or California state holiday.
8.8 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
89 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
8.10 AttorneysFees. If legal action is commenced to enforce or to declare the effect of
any provision of this Agreement, the prevailing party shall be entitled to recover from the non-
prevailing party actual and reasonable attorneys' fees and other litigation costs. In addition to
the foregoing award of attorneys' fees and other litigation costs to the prevailing party, the
prevailing party in any lawsuit or reference proceeding on this Agreement shall be entitled to its
attorneys' fees and other litigation costs incurred in any post judgment proceedings to collect or
enforce the judgment. This provision is separate and several and shall survive the merger of this
Agreement into any judgment on this Agreement. This provision shall survive termination of
this Agreement.
8.11 Force Majeure.
8.11.1 Time periods for performance of any obligations under this Agreement
may be extended for Force Majeure, except that in no event, shall the Term of this Agreement be
extended by an event of Force Majeure Delay.
8.11.2 In the event of a lawsuit, referendum, or initiative which constitutes a
Force Majeure Delay and which directly affects the ability of the claiming Party to meet its non -
monetary obligations under this Agreement, including the deadlines imposed by the DDA
Schedule of Performance or the ability of the DEVELOPER to Complete the Project for a period
of more than two years, the Parties shall meet and confer on mutually acceptable ways or
modifications to the Project to proceed with development thereof notwithstanding such lawsuit,
referendum or initiative. In the event that the Parties are unable to agree, the question of whether
the extension of such period of Force Majeure Delay beyond two years is reasonable under the
circumstances will be presented to the City Council (with reasonable notice to and an
opportunity to be heard by the DEVELOPER). The City Council may then decide based on its
good faith deliberations to either permit the extension of such period of Force Majeure Delay or
proceed with its remedies under this Agreement. The decision of the City Council shall be final,
subject only to judicial review pursuant to California Code of Civil Procedure Section 1094.5(b).
8.11.3 If any Party (the "First Party ") believes that an extension of time is due to
Force Majeure Delay, it shall notify the other Party (the "Second Party ") in writing within thirty
(30) calendar days from the date upon which the First Party becomes aware of such Force
Majeure Delay, d g y, �,
j describing the Force Majeure Delay, when and how the First P obtained
knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to
27
533339. i
respond to such Force Majeure Delay, and the estimated delay resulting from such Force
Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied
in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in
�=w7
writing of its request for a given Force Majeure Delay within the thirty (30) calendar days
specified above, there shall be no extension for such Force Majeure Delay.
8.12 Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all Successors in Interest to the parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden
upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c)
is binding upon each party and each successor in interest during ownership of the Property or any
portion thereof.
8.13 Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same affect as if all of the parties
had executed the same instrument.
8.14 Jurisdiction and Venue. Subject to the provisions of Section 5.3 above, any action
at law or in equity arising under this Agreement or brought by a party hereto for the purpose of
enforcing, construing or determining the validity of any provision of this Agreement shall be
filed and tried in the Superior Court of the County of Orange, State of California, or the United
Rte.
States District Court for the Central District of California, Santa Ana Division, and the parties
to
,
hereto waive all provisions of law providing for the filing, removal or change of venue any
other court.
8.15 Project as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the development of the Project is a private development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and DEVELOPER is that of a government
entity regulating the development of private property and DEVELOPER of such property.
8.16 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
8.17 Estoppel Certificate. Any party hereunder, may at any time, deliver a written
M
notice to the other party requesting such Party to certify in writing that, to the best knowledge of
the certifying party: (i) this Agreement is in full force and effect and a binding obligation of the
28
533339,1
ME
party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the date and nature of the amendments to this Agreement, but it remains in
full force and effect as modified, and a continuing binding obligation of the party; and (iii) the
requesting party is not in default in performance of their obligations set forth in the Agreement,
or if the party is in default, provide a description thereof of the nature of such default(s). A party
receiving a request hereunder shall execute and return such certificate within thirty (30) days
following receipt thereof. Any third party, including a mortgagee shall be entitled to rely on the
certificate. DEVELOPER shall pay to CITY all costs incurred by CITY in connection with the
issuance of estoppel certificates.
8.18 Authority to Execute. The person or persons executing this Agreement on behalf
of each party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of such party and warrants and represents that he or she/they has/have the
authority to bind such party to the performance of its obligations hereunder.
533339A
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
29
SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year set forth below.
&S0=14
"CITY"
City of Tustin, California
By:
Jeffrey C. Parker, City Manager
By:
Pamela Stoker
City Clerk
Dated:
APPROVED AS TO FORM
60
INS-
Office of the City Attorney on
By:
David E. Kendig, Esq.
"DEVELOPER"
By: Anton Legacy Tustin, L.P., a California
limited partnership
NEI
533339.1
By: _
Name:
Its:
By: _
Name:
Its:
Hill
01 EXHIBIT "A"
F11!1-2351-,
TO DEVELOPMENT AGREEMENT
Legal Description of Property
< Same Legal as applied to DDA should be attached since obligations go beyond Developer
property but to Project>>
,533339.1
[to be inserted/attached]
Exhibit A
EXHIBIT
TO DEVELOPMENT AGREEMENI
Map showing Property and its location
[to be inserted/attached]
Exhibit B
533339.1
�w
Attachment 2
• • • '•• • • •• N
THIS DECLARATION OF AFFORDABLE HOUSING COVENANTS AND
REGULATORY AGREEMENT (this "Housing Agreement" ) is made and entered into as of
,2012, by and between the TUSTIN HOUSING AUTHORITY, a
California Housing Authority (the "Authority") and the CITY OF TUSTIN, a municipal
corporation and public body corporate and politic of the State of California (together with any
successor of City, the "City;" and the City together with the Authority sometimes collectively
referred to as "Tustin") and ANTON LEGACY TUSTIN L.P., a California limited partnership
(as further defined in Exhibit "B", "Owner"). Tustin and Owner are sometimes referred to
herein individually as a "Party" and collectively as the "Parties." All capitalized terms set forth
in this Agreement that are not otherwise defined below have the meanings for the same set forth
in the Glossary of Defined Terms in Exhibit "B" attached hereto.
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST DOCUMENT
BE RECORDED AND EXEMPT FROM
RECORDING FEES PER
GOVERNMENT CODE SECTION 6103
AND SECTION 27383
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Tustin Housing Authority
City Clerk
COPY TO:
[SPACE ABOVE LINE FOR RECORDER'S USE ONLY]
DECLARATION OF AFFORDABLE HOUSING COVENANTS AND
REGULATORY AGREEMENT
THIS DECLARATION OF AFFORDABLE HOUSING COVENANTS AND
REGULATORY AGREEMENT (this "Housing Agreement" ) is made and entered into as of
,2012, by and between the TUSTIN HOUSING AUTHORITY, a
California Housing Authority (the "Authority") and the CITY OF TUSTIN, a municipal
corporation and public body corporate and politic of the State of California (together with any
successor of City, the "City;" and the City together with the Authority sometimes collectively
referred to as "Tustin") and ANTON LEGACY TUSTIN L.P., a California limited partnership
(as further defined in Exhibit "B", "Owner"). Tustin and Owner are sometimes referred to
herein individually as a "Party" and collectively as the "Parties." All capitalized terms set forth
in this Agreement that are not otherwise defined below have the meanings for the same set forth
in the Glossary of Defined Terms in Exhibit "B" attached hereto.
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
r
RECITALS
A. The City and Owner have entered into that certain Tustin Legacy Disposition and
Development Agreement for Parcel 1 A North, dated as of , 2012 (the "DDA "),
pursuant to which Owner is required to construct a certain number of Affordable Housing Units
(defined in Exhibit B, Glossary of Defined Terms) and to provide for the rental of these
Affordable Housing Units to Qualified Households (defined in Section 2.9.4 below) at rents that
do not exceed the applicable Maximum Monthly Affordable Rents (defined in Exhibit B }.
B. Owner holds fee title to that certain real property consisting of an approximately
acre site, legally described in Exhibit "A ", attached hereto (the "Property "). Owner
acquired its fee title to the Property by that certain Quitclaim Deed from the City, dated
, 201_, recorded , 201_ as Instrument No. in the
Official Records in the Orange County Recorder's Office (the "Official Records ").
C. On February 3, 2003, the City adopted an ordinance approving the Marine Corps
Air Station- Tustin Specific Plan/Reuse Plan, setting forth the zoning and entitlement framework
for future development of the former Marine Corps Air Station, Tustin ( "Tustin Legacy "),
including the Property. Since its initial adoption, the City has approved numerous Specific Plan
Amendments. All references in this Agreement to the "Specific Plan" shall be deemed to refer
to the MCAS Tustin Specific Plan/Reuse Plan, as amended and as the same may be amended
from time to time.
D. Pursuant to the City's Ordinance No. , City Council Resolution No. CC
and Planning Commission Resolutions No. and , the City approved the
following entitlements for the Property (the "Entitlements "): (i) [site plan and design review
approval as approved by the Planning Commission by Resolution No. _ 1; (ii) a combined
density bonus for the Property and the Parcel 2A Property that would allow the transfer of
Affordable Housing Units from Lots 29, 38 and 39 of Tentative Tract Map No. 17404 (the
"Parcel 2A Property ") to the Property and the development of two hundred twenty -five (225)
Affordable Rental Housing Units on the Property, including 88 Very Low Income Units, 73 Low
Income Units, and 64 Moderate Income Units (the "Project "), pursuant to SB 1818
(Government Code Sections 65915 to 65918, the "Density Bonus Law ") and the Tustin City
Code (the "City Code ") Article 9, Chapter 1 (the "Density Bonus Ordinance "); and (iii) a
development agreement between the City and Owner, for development of the Project, pursuant to
which Owner provides certain benefits to the City in consideration of the vested rights and other
consideration set forth in such development agreement.
E. The City has recorded against title to the Property those certain Special
Restrictions, dated as of , 2012 (the "Special Restrictions "), recorded in the
Official Records on 2012 as Instrument No. , pursuant to which Owner is required
to comply with certain restrictions, obligations and limitations related to the ownership and use
of the Property.
2
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
F. The City and Owner have entered into that certain Development Agreement for 17
I MEN I
Parcel I A North, dated as of 2012 (the "DA"), pursuant to which Owner is
required to perform certain obligations and provide certain benefits to the City. The DA and the
DDA are sometimes collectively referred to as the "Development Agreements."
G. The Density Bonus Law and the Density Bonus Ordinance, among other matters,
provide for the following:
(1) The City must, upon the request of an applicant, grant a density bonus of
percent (_.O%) – Note: Revise to conform to the actual density bonus provided by the
Cilyfor the two properties, that allows TIC to construct 533 units and St Anton to construct 225
units.] (the "Mandatory Density Bonus") when an applicant proposes to restrict [eleven percent
(11%) of the Base Unit Count to Very Low Income Households] –or - [twenty percent (20%) of
the Base Unit Count to Low Income Households].
(2) The maximum residential density that is permitted by the Specific Plan to
be constructed on both the Property and the Parcel 2A Property, on a combined basis, is [__]
residential units (the "Base Unit Count"). With application of the [—.0%] Mandatory Density
Bonus a total of " additional residential units may be constructed on the combined parcels of
the Property and the Parcel 2A Property.
(3) Accordingly, after application of the Mandatory Density Bonus, the
Property and the Parcel 2A Property, on a combined basis, may contain an aggregate of 758
residential units. I Mi
1-111191E1
(4) The City has allocated the total residential units between the Property and
the Parcel 2A Property as follows: (i) the Property shall contain 255 affordable residential units
as further described in this Agreement and (ii) provided that 37 units at the Parcel 2A Property
are restricted to Moderate Income Households, the Parcel 2A Property may contain up to 533
residential units.
(5) The City has also allocated the total affordable residential units between
the Property and the Parcel 2A Property as follows: (i) the Property shall contain 88 Very Low
Income Units, 73 Low Income Units, and 64 Moderate Income Units and (ii) the Parcel 2A
Property shall contain 37 Moderate Income Units.
(6) When an applicant seeks a density bonus on a project that proposes to
restrict percent (_%) of the Base Unit Count to [Very Low Income Households], pursuant
to Section 9123 of the Tustin City Code the City must, upon the request of an applicant, grant a
total of three (3) incentives or concessions. [Note: - confirm whether any of these concessions
apply to the St Anton property]
i. One concession requested by the applicant for the Property is an
increase in the maximum height of a structure beyond that which is normally allowed in the
particular zone (a "Height Concession").
3
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Nil
ii. A second concession requested by the applicant for the Property is
certain limited setbacks of [30 feet — describe] and [20 feet — describe] less than that which is
normally allowed in the particular zone (a "Setback Concession ").
iii. A third concession requested by the applicant for the Property is
the allowance of the following vehicular parking ratios, inclusive of handicapped and guest
parking for the Project: [one (1)] onsite parking space per unit for zero to one bedroom units; and
[two (2)] on -site parking spaces per unit for two to three bedroom units (the "Parking
Concession ").
(7) When an applicant seeks a density bonus on a project, the applicant may
request a waiver or reduction of development standards pursuant to Section 9124 of the Tustin
City Code and, the City is required to grant such waivers unless it makes certain findings of
adverse impacts. For the Project, the City has granted the following waivers or reductions of
development standards:
i. [confirm whether any items are waivers instead of concessions]
H. In accordance with the allocated affordable dwelling units described above, and in
connection with density bonus for the Property and the Parcel 2A Property granted to the City (as
the prior owner of those parcels) the City has received approval for a housing incentive
agreement required by Section 9142 of the Density Bonus Ordinance, which includes approval of
the following: (i) 255 dwelling units in the Project at the Property, of which all 255 units will be
reserved for Affordable Housing nits as follows: 88 Very Low Income Units, 73 Low Income
g Y
Units, and 64 Moderate Income Units [NOTE: include as applicable: (ii) the Height Concession,
(ii) the Setback Concession, and (iv) the Parking Concession/Waiver].
1. Resolution No. CC requires that prior to recordation of the first final map
including, conveyance map, or first building permit, whichever occurs first, the City (and Owner
as the successor in interest to the City pursuant to the Quitclaim Deed) is required to enter into a
Housing Agreement with Tustin to ensure implementation of the Affordable Housing
Requirements of the Specific Plan, the City's Density Bonus Ordinance, the City - approved
"Affordable Housing Plan, Density Bonus Application," the City's "Affordable Housing Policy ",
compliance with California Health and Safety Code Section 33413(b)(2), and that the entire
Project remain a rental apartment project for the entire Term of this Housing Agreement.
J. Tustin and Owner enter into this Housing Agreement pursuant to and in
accordance with the Density Bonus Law and the Density Bonus Ordinance. This Housing
Agreement constitutes the housing incentive agreement required by Section 9142 of the Density
Bonus Ordinance. The City has determined that the provisions of this Housing Agreement
comply with the Specific Plan, the Density Bonus Ordinance, California Government Code
Section 65915, and California Health and Safety Code Sections 33334.3, 33413(b) and
33334.14, and that this Housing Agreement fully satisfies the above - mentioned ordinances and
State statutes.
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
K. Conditions of the DDA and the Entitlements require that Owner agree to enforce
certain affordable housing restrictions to ensure the affordability of the for-rent Affordable
Housing Units in the Project.
L. In consideration of Tustin's agreement to support the Project pursuant to Owner's
commitments under the Development Agreements and subject to the Special Restrictions and the
Entitlements, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Tustin and Owner now desire to enter into this Housing Agreement to
set forth their agreement regarding the affordable housing restrictions for the Project and to cause
said affordable housing restrictions to run with the land for the benefit of Tustin.
AGREEMENT
NOW, THEREFORE, Tustin and Owner hereby agree as follows:
1. Development of the Property.
1.1. Permits and Governmental Approvals. As part of the proposed
construction of the Project, prior to any construction requiring a building permit for the Project,
Owner shall obtain all required City approvals, building permits and Design Review application
approvals in accordance with the City Code, the Specific Plan, all Government Requirements,
and the Special Restrictions.
1.2. Local, State and Federal Law. Owner shall carry out the construction of
the Project in conformity with the City Code, the Specific Plan, the Special Restrictions, and all
applicable Governmental Requirements. Specifically, and without limiting the foregoing, Owner
shall at all times comply with all applicable federal and State labor rules including, but not
limited to, any prevailing wage requirements under California law.
2. Covenants Related to Affordable Housing. Owner, for itself and for all Successor
Owners, makes the agreements, representations, warranties and covenants set forth below in this
Section 2.
2.1. Construction of Affordable Units. Owner shall construct on the Property
a multi-family rental housing Project containing 255 dwelling units. The Project shall include 88
Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units to be rented to,
occupied by, or held available only for rental to Qualified Households at an Affordable Rent
subject to the occupancy restrictions contained in this Section 2.
9
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
I
0
IN
2.2. Identification and Location of Affordable Housing Units.
2.2.1. No Concentration of Affordable Units. During the Qualified
Project Period, the Affordable Housing Units shall be located in various buildings and on various
floors of the buildings throughout the Project in a manner consistent with the requirements of
IRC Sections 42 and 143 and the TCAC Regulations so that the Affordable Housing Units are
not concentrated all on a few floors of a building or within a single building in the Project.
2.2.2. Affordable Housing Unit Types. All Affordable Housing Units
proposed to be leased by Owner shall first be approved in writing by the Program Administrator
as to location of the unit in the Project, number of bedrooms in the unit, and total useable square
feet of area within the unit.
2.2.3. Allocation of Affordable Unit Types. The Affordable Housing
Units shall be allocated among the units in the Project as follows:
[NOTE: update table]
Affordable Housing
Unit Types
Very Low
Income Units
Low Income
Units
Moderate Income
Units
Studio Units
0
0
0
1 Bedroom Units
0
0
0
2 Bedroom Units
0
0
0
3 Bedroom Units
0
0
0
Totals
88
73
64
2.3. Limitations on Tenants and Occupancy of Affordable Housing Units
Owner, for itself and all Successor Owners, hereby covenants that the Affordable Housing Units
shall be rented to Qualified Households (defined in Section 2.9.4 below) and in accordance with
the following terms:
2.3.1. Owner may not charge or collect any Rent Consideration for an
Affordable Housing Unit in excess of an Affordable Rent for such Affordable Housing Unit.
2.3.2. Only one Qualified Household shall be permitted to occupy and
reside in an Affordable Housing Unit at any one time. The Affordable Housing Unit shall be
used as the principal residence of the adult members of the Qualified Household during the term
of any lease and for no other purpose. Neither Owner nor a Qualified Household may lease,
sublease, or grant a license or any other right to any other persons to occupy the Affordable
Housing Unit, or permit persons who are not members of the one Qualified Household to occupy
the-Affordable Housing Unit.
DRAFT dated October 4, 2012
on
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.3.3. The number of persons permitted to occupy the Affordable
Housing Unit shall not exceed the occupancy permitted by law.
2.3.4. Owner shall use its best efforts to fill with a Qualified Household
each vacancy of the Affordable Housing Units as soon as possible following the date that an
Affordable Housing Unit becomes vacant.
2.3.5. If multiple households apply to Owner to occupy a vacant
Affordable Housing Unit, and if such prospective tenants are all Qualified Households, then
Owner shall lease the Affordable Housing Unit to one such Qualified Household on a first -come,
first - served, and non - discriminatory basis.
2.3.6. Owner shall notify the Program Administrator of any Affordable
Housing Unit that either (a) fails to be leased to a Qualified Household within thirty (30) days
after the issuance of a certificate of occupancy for the Affordable Housing Unit (the "Initial
Leasing Period "), or (b) becomes available as a result of a tenant vacating the premises.
2.3.7. During the Initial Leasing Period, Owner shall create and
maintain an "interest list" which includes all those potential tenants who have expressed an
interest in leasing an Affordable Housing Unit within the Project and who are Qualified
Households. The interest list shall be maintained with an order of priority based on a first -come,
first - priority basis. Pursuant to Section 2.9.10, the interest list shall also designate whether a
Qualified Household is eligible under the City of Tustin's Local Workforce Housing Preference
Policy.
IN
2.3.8. During the Initial Leasing Period, to the extent permitted by law,
Owner shall first offer Affordable Housing Units to persons on the interest list and with any
preferential status that may be applicable pursuant to Section 2.9. 10 under the City of Tustin's
Local Workforce Housing Preference Policy.
2.3.9. Each Qualified Household which occupies an Affordable
Housing Units at the expiration of the Qualified Project Period and who remains a Qualified
Household for the Affordable Housing Unit it occupies on such date shall be permitted to
continue to occupy its Affordable Housing Unit for a period of one (1) year, beginning on the
first day after the expiration of the Qualified Project Period, provided that the annual rent
increase during such one (1) year period shall not exceed an amount equal to the sum of (i) the
rent for such unit on the last day of the Qualified Project Period plus (ii) an amount equal to the
greater of five percent (5 %) or the increase that would have been permitted had the Qualified
Project Period not expired. Except as provided in the preceding sentence, upon the expiration of
the Qualified Project Period, the Affordable Housing Units shall no longer be subject to the
provisions of this Section 2.
2.3.10. Owner shall deliver written notice to all occupants of the
Affordable Housing Units within the Project stating each rent increase, and stating that such rent
7
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E
t
DRAFT dated October 4, 2012 City of Tustin f St. Anton
Declaration of Affordable Housing Covenants
increase has been made pursuant to all applicable Governmental Requirements, including the
TCAC Regulations.
2.3.11. Prior to entering into a lease with a tenant for an Affordable
Housing Unit, Owner shall first make a determination that such tenant is a Qualified Household
in accordance with Section 2.9.
2.3.12. Voucher Holders. Owner shall not refuse to lease a Very Low
Income Unit or a Low Income Unit to a Qualified Household if such Qualified Household is a
holder of a certificate or voucher under 24 CFR Part 982 Section 8 Rental Certificate Program or
Section 8 Rental Voucher Program or to the holder of a comparable document evidencing
participation in a tenant -based assistance program, solely because of the status of the Qualified
Household as a holder of such certificate of family participation, rental voucher, or comparable
tenant -based assistance document.
2.4. Rental Rates and Changes to Rent.
2.4.1. Maximum Monthly Affordable Rent. Each Affordable Housing
Unit shall be leased to a Qualified Household for monthly Rent Consideration in an amount not
to exceed the applicable Maximum Monthly Affordable Rent for such Affordable Housing Unit,
calculated in accordance with the definition for "Maximum Monthly Affordable Rent" in
Exhibit "B ". The Maximum Monthly Affordable Rent for each Affordable Housing Unit shall
NO be calculated (a) as of the date an Affordable Housing Unit is leased to a tenant, and (b) annually
not later than thirty (30) days after the City publishes its list of maximum affordable rents for
affordable housing units in the City.
2.4.2. Adjustments to Rent. Owner shall, in accordance with
Section 2.9, re- examine the income of each Qualified Household that is a tenant living in an
Affordable Housing Unit at least annually to confirm that such tenant household remains a
Qualified Household. The Maximum Monthly Affordable Rent shall be recalculated by Owner
and reviewed and approved by the Program Administrator annually, and may change as changes
in the applicable gross rent amounts, the income adjustments, or the monthly allowance for
utilities and services warrant. Owner shall not impose on a tenant an increase in rent approved
by the Program Administrator if that increase is not permitted to be imposed under the lease
between Owner and the tenant. Owner shall provide not less than thirty (30) days prior written
notice to affected tenants before implementing any increase in rents.
2.5. Minimum Rents. Notwithstanding the other provisions of this Section 2,
the Maximum Monthly Affordable Rent for each Affordable Housing Unit shall not be less than
the Maximum Monthly Affordable Rent for such Affordable Housing Unit that Owner would
have been permitted to charge for such Affordable Housing Unit on the date of this Housing
Agreement, assuming that such Affordable Housing Unit was occupied by a Qualified
Household of a size equal to one person per bedroom in such Affordable Housing Unit.
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.6. Rent Schedule and Utility Allowances. The Program Administrator shall
annually review, at Owner's sole cost, and approve rents proposed by Owner for the Affordable
Housing Units to determine that Owner has properly applied the restrictions contained in this
Section 2. The Program Administrator shall from time to time provide Owner with a schedule
establishing the monthly allowances for utilities and services to be paid by the Qualified
Households who occupy the Affordable Housing Units.
2.7. Increases in Tenant Income.
2.7.1. If, as a result of the annual re-examination of incomes required
pursuant to Section 2.9.5, Owner determines that a tenant occupying an Affordable Housing Unit
who was a Qualified Household when the lease for such unit was executed, no longer is
Qualified Household, then the dwelling unit occupied by such household (the "Ineligible Unit")
shall cease to be an Affordable Housing Unit, subject to the remainder of this Section 2.7.1.
Owner may elect to substitute for the Ineligible Unit another dwelling unit in the Project as an
Affordable Housing Unit (such substitute unit is a "Replacement Unit"), in accordance with this
Section 2.7.1. On the date a Replacement Unit is first leased to a Qualified Household at the
Maximum Monthly Affordable Rent applicable to such tenant, then on that date (a) the
Replacement Unit shall be deemed to be an Affordable Housing Unit and (b) the Ineligible Unit
shall no longer be considered an Affordable Housing Unit. Notwithstanding anything in the
foregoing, at all times during the Term of this Housing Agreement, there shall never be fewer
than 255 Affordable Housing Units in the Project either (a) rented to Qualified Households in
accordance with the requirements of Section 2 or (b) available for rent pursuant to Section 2 and
of a type and in a location consistent with Section 2.2.
INE
2.7.2. Notwithstanding the foregoing provisions, it is the intent of this
Housing Agreement that all of the Affordable Housing Units shall be (a) allocated among
Moderate Income Units, Low Income Units, and Very Low Income Units as set forth in
Section 2.2.3 and (b) segregated within the Project, all as provided in Section 2.2. In the event
the application of the provisions in this Section 2 result in an allocation of Affordable Housing
Units different from that provided in Section 2.2.3, Owner shall lease the next available
Affordable Housing Unit to a Qualified Household (whether Moderate Income Household, Low
Income Household, or Very Low Income Household, as the case may be), in order to correct the
allocation.
2.8. Rental Agreements for Affordable Housing Units.
2.8.1. Rental Agreement.
2.8.1.1. The rental agreement for an Affordable Housing
Unit must be for not less than six (6) months, unless the Program Administrator provides prior
written approval.
1%
9
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
2.8.1.2. The rental agreement for an Affordable Housing
Unit shall prohibit the tenant from subleasing or licensing the premises and shall prohibit the
tenant from allowing any persons who are not members of the Qualified Household that is the
tenant from occupying the unit.
2.8.13. The rental agreement for an Affordable Housing
Unit shall include the right of Tustin to inspect the interior of the Affordable Housing Unit with
prior notice of not less than forty -eight (48) hours.
2.8.2. Tenant Protections The rental agreement for an Affordable
Housing Unit may not contain any of the following provisions:
2.821. Any agreement by the tenant to admit guilt or to a
judgment in favor of Owner in a lawsuit brought in connection with the lease.
2.8.2.2. Any agreement by the tenant that Owner may take,
hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement
by the tenant concerning disposition of personal property remaining in the Unit after the tenant
has moved out of the Unit. Owner may dispose of such personal property in accordance with
applicable State law.
2.8.2.3. Any agreement by the tenant not to hold Owner or
G its agents legally responsible for any action or failure to act, whether intentional or negligent.
y
2.8.2.4. Any agreement of the tenant that Owner may evict
the tenant or household members without notice to the tenant.
2.8.2.5. Any agreement by the tenant that Owner may evict
the tenant or household members without instituting a civil court proceeding in which the tenant
has the opportunity to present a defense, or before a court decision on the rights of the parties.
2.8.2.6. Any agreement by the tenant to waive any right to a
trial by jury.
2.8.2.7. Any agreement by the tenant to waive the tenant's
right to appeal, or to otherwise challenge in court, a court decision in connection with the lease.
2.8.2.8. Any agreement by the tenant to pay attorney's fees
or other legal costs even if the tenant wins in a court proceeding by Owner against the tenant.
The tenant, however, may be obligated to pay costs if the tenant loses.
2.8.3. Termination of Tenancv. Owner may not terminate the tenancy
or refuse to renew the lease of a Qualified Household except for violation of the terms and
conditions of the lease; for violation of applicable federal, State, or local law; or for other good
10
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
cause. Any termination or refusal to renew must be preceded by not less than sixty (60) days by
Owner's service upon the tenant of a written notice specifying the grounds for the action.
rNE
NE
2.9. Qualified Households; Records and Reports.
2.9.1. Within thirty (30) days after the Affordability Commencement
Date has occurred, Owner shall execute and deliver to the Program Administrator a copy of a
certificate identifying the Affordability Commencement Date and the last day of the Qualified
Project Period, which certificate shall be in the form provided by Program Administrator or
otherwise approved by Program Administrator. Owner shall record a copy of such certificate
against title to the Property in the Official Records.
2.9.2. Prior to considering a household as a tenant for an Affordable
Housing Unit, Owner shall obtain from the applicant a complete verification of income
qualification, on a form that contains all of the information required by IRC Sections 42 and 143
and the TCAC Regulations or in some other manner approved in writing by the Program
Administrator (the "Verification of Income"). Prior to the renewal or extension of the term of
any lease for an Affordable Housing Unit, Owner shall obtain from the Qualified Household a
current Verification of Income.
29.3. Owner shall make a diligent and good-faith effort to verify that
the information provided by an applicant in the Verification of Income is accurate by taking the
following steps, as a part of the verification process: (1) copy of driver's license or Government 001
issued identification card for all adult household members; (2) obtain pay stubs for the most
recent one-month period; (3) obtain income W-2 Wage and Earning Statements and tax returns
for the most recent tax year; and (4) obtain any other information or documents that may then be
required under IRC Sections 42 and 143 and/or the TCAC Regulations. In the alternative, if
approved by the Program Administrator, the following may be submitted (a) income verification
from the Social Security Administration and/or the California Department of Social Services if
the applicant receives assistance from either of such agencies; or (b) if the applicant is
unemployed, does not have income tax returns or is otherwise unable to provide other forms of
verification as required above, obtain another form of independent verification satisfactory to the
Program Administrator.
2.9.4. A "Qualified Household" is any household of persons that has
completed the Verification of Income qualification and for which Owner, in good-faith pursuant
to Section 2.9.3, has confirmed that such household is either (a) a Moderate Income Household if
a potential tenant for a Moderate Income Unit, (b) a Low Income Household if a potential tenant
for a Low Income Unit, or (c) a Very Low Income Household if a potential tenant for a Very
Low Income Unit.
2.9.5. Owner shall obtain, complete and maintain on file Verifications
of Income qualification, from each Qualified Household that executes a lease for an Affordable
Housing Unit, including (i) a Verification of Income dated immediately prior to the date of initial
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
ENRON occupancy by such Qualified Household and (ii) thereafter, annual Verifications of Income
4 which must be dated as of June 1st of each year, or such other date as may be mutually agreed
W
upon by the Program Administrator and Owner. Annual Verifications of Income shall be
obtained by Owner for each tenant occupying an Affordable Housing Unit not less than once in
every twelve -month period following such Qualified Tenant's occupancy of a unit in the Project.
2.9.6. A copy of the most recent Verification of Income for Qualified
Household for each occupied Affordable Housing Unit shall be attached to the Certificate of
Continuing Program Compliance, in the form provided by Program Administrator or otherwise
approved by Program Administrator, which is to be filed with the Program Administrator no
later than the fifteenth (151') day of each month following the receipt by the Program
Administrator of the Completion Certificate to and including the month in which the
Affordability Commencement Date has occurred. After the Affordability Commencement Date,
the Certificate of Continuing Program Compliance shall be delivered by Owner to the Program
Administrator no later than June 1 of each calendar year during the Qualified Project Period.
2.9.7. Owner will maintain complete and accurate records pertaining to
the Affordable Housing Units and will permit any duly authorized representative of Tustin,
without limitation, to inspect the books and records of Owner pertaining to the Project, including
those records pertaining to the occupancy of the Affordable Housing Units.
2.9.8. Owner will prepare and submit to the Program Administrator no
later than June 1 of each calendar year during the Qualified Project Period a Certificate of
Continuing Program Compliance executed by Owner with the following information:
3.9.6.1 The number of the dwelling units of the Project
which were occupied, pursuant to Section 2.1 above, by Qualified Households during such
period and such other tenant information as may be reasonably required as stated on the form of
the Certificate of Continuing Program Compliance acceptable to the Program Administrator, and
3.9.6.2 A statement that either (i) no unremedied
default has occurred under this Housing Agreement or (ii) a default has occurred, in which event
the Certificate shall describe the nature of the default in detail and set forth the measures being
taken by Owner to remedy such default.
2.9.9. Each lease or rental agreement for an Affordable Housing Unit
shall contain a provision to the effect that Owner has relied on the Verification of Income and
supporting information supplied by the tenant in determining qualification for occupancy of the
particular Affordable Housing Unit and that any material misstatement in such verification
(whether or not intentional) will be cause for immediate termination of such lease or rental
agreement. Each such lease or rental agreement shall also provide (and shall so disclose to the
tenant) that the tenant's income is subject to annual verification in accordance with this
Section 2.9, and that, if Owner obtains a Verification of Income from an existing tenant and
determines that such household's income then exceeds the then applicable income limit for (i) a
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Declaration of Affordable Housing Covenants
Moderate Income Household if the tenant occupies a Moderate Income Unit, (ii) a Low Income MEMO
Household if the tenant occupies a Low Income Unit, or (iii) a Very Low Income Household if
the tenant occupies a Very Low Income Unit, then such tenant shall cease to be a Qualified
Household and, as a consequence, said tenant's lease shall be subject to termination on such
prior notice as the Program Administrator deems reasonable or may be subject to rent adjustment
pursuant to Section 2.7.
2.9.10. Local Workforce Housing Preference Policy. To the extent
permitted by law, in marketing and renting units to Qualified Households, Owner shall establish
a priority system that ensures that prospective rental applicants who are currently employed in or
currently residing in the City of Tustin have priority over other applicants who do not currently
reside or are not employed in the City of Tustin (hereinafter referred to as the "Local Preference
Policy", adopted by the Tustin City Council on November 6, 2007). For a prospective tenant to
be granted priority in leasing an Affordable Housing Unit under the Local Preference Policy, the
applicant shall demonstrate to Owner a minimum of six months of current employment or
current residency in the City. Owner shall refer to the Local Preference Policy for detailed
information required to be submitted by Owner for verification of residency and local
employment and to ensure Owner's compliance with the Local Preference Policy.
2.10. Termination of Affordable Housing Covenants. The provisions of this
Section 2 shall terminate in their entirety on the date that is 365 days after the last day of the
Qualified Project Period.
0
2.11. Payment of Fees and Tax Equivalent Payments. NINE
L1111-
2.11.1. Administrative Fee. From and after the Completion of
Construction, if there is a Property Tax Exemption in any Fiscal Year during the Tenn of this
Agreement, then on [April 1] immediately following such Fiscal Year, Owner shall pay to the
City an administrative fee (the "Administrative Fee") in an amount equal to the total amount of
property taxes the City would have received from the State of California for such Fiscal Year if
the Property were not subject to the Property Tax Exemption in such Fiscal Year. The
Administrative Fee shall increase each calendar year by two percent (2%) and shall be payable in
each year until the date that the Property Tax Exemption ceases to apply to the Property.
2.11.2. Administrative Fee Payable from Net Operating Income. Owner
shall only be obligated to pay the Administrative Fee from Net Operating Income (defined
below). If the Net Operating Income in any calendar year is insufficient to allow Owner to pay
some or all of the then unpaid Administrative Fee, then the unpaid portion of the Administrative
Fee shall instead be deferred until a the next calendar year and will similarly be payable from
future Net Operating Income. If the Administrative Fee is deferred for one or more years, due to
the lack of Net Operating Income, Owner shall remain obligated to pay all deferred
Administrative Fees as soon as possible from the next Net Operating Income, and such
obligation shall be cumulative until all deferred Administrative Fees have been paid in full. This
obligation to pay Administrative Fees shall survive the termination of this Housing Agreement.
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DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
defined] 2.11.3. Net Operating; Income. "Net Operating Income" means [to be
2.11.4. Payment of Administrative Fee. The Administrative Fee shall be
payable to the City of Tustin, c/o the Office of the City of Tustin Finance Director, at 300
Centennial Way, Tustin, California 92780, or at such other place or places as the City from time
to time may designate by written notice to Owner.
2.11.5. Interest on Deferred and Late Administrative Fees. If the
Administrative Fee is not paid when due (including any Administrative Fees that are deferred
due to lack of Net Operating Income), then Owner shall also pay to the City interest on the
unpaid Administrative Fee calculated at the rate of eight (8 %) simple interest per annum, until
paid.
2.11.6. Late Payment Penalty. If the Administrative Fee is not paid
when due, then Owner shall also pay to the City a penalty payment equal to ten percent (10 %) of
the unpaid Administrative Fee; provided that this penalty shall not apply to unpaid
Administrative Fees that are deferred due to lack of Net Operating Income.
3. Non- Discrimination Covenants. Owner for itself and all Successor Owners,
hereby represents, warrants and covenants as follows:
3.1. Obligation to Refrain from Discrimination. There shall be no
discrimination against or segregation of any person or group of persons, on account of race,
M- color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or any portion
thereof, nor shall Owner itself or any person claiming under or through it (including any tenant)
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Property or any portion thereof. All deeds, leases or contracts shall contain or be
subject to substantially the following non - discrimination or non - segregation clauses:
3.1.1. In deeds:
"The grantee herein covenants by and for itself, its successors and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion,
sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee itself or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
in the land herein conveyed. The foregoing covenants shall run with the land."
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Declaration of Affordable Housing Covenants
3.1.2. In leases: 411M
MEN
"The lessee herein covenants by and for itself, its successors and assigns, and all persons M
claiming under or through them, and this lease is made and accepted upon and subject to
the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the leasing, subleasing, renting, transferring, use,
occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any
person claiming under or through it, establish or permit such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein
leased."
31.3. In contracts:
"There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land, nor shall the transferee itself or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of IN
tenants, lessees, subtenants, sublessees or vendees of the land."
4. Maintenance of the Project. Owner and all Successor Owners shall maintain the
Property, at their sole cost, in accordance with the requirements of this Section 4.
4.1. Minimum Standards. Prior to construction of any units on the Property,
the Property shall at all times be maintained in a clean and weed-free condition, reasonably free
from any debris and waste materials.
4.2. During Construction. From the date upon which construction begins of
any Improvements until issuance of a Completion Certificate for any such Improvements, Owner
and all Successor Owners shall maintain the Property and Improvements under construction
consistent with best construction industry practice.
4.3. Following Construction.
4.3.1. Within thirty (30) days after Owner obtains a temporary
certificate of occupancy for the Improvements in accordance with the requirements of the
Development Agreements and this Housing Agreement, Owner shall deliver a Completion
Certificate to the City and to the Authority, stating that all of the Improvements have been
completed, Owner has obtained a certificate of occupancy for the Improvements, and Owner
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DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
intends to lease the units, including the Affordable Housing Units, in accordance with this
Housing Agreement ( "Completion of Construction "). Within ten (10) days after the
Completion of Construction, the leasing obligations of Section 3 shall apply to the Project.
4.3.2. After Completion of Construction, Owner and all Successor
Owners shall maintain the Improvements, at their sole cost, in the same aesthetic condition and
same physical condition or better as the condition of such Improvements at the time the City
issues a certificate of occupancy, reasonable wear and tear excepted. The standard for the
quality of maintenance of the Project Improvements required by this Section 4.3.2 shall be
deemed to be met whether or not a specific item of maintenance is listed below. Representative
items of maintenance shall include; (i) maintenance, repair and replacement on a regular
schedule, consistent with like developments in Orange County, of private streets, roads, drives,
bike paths, alleyways, sidewalks, utilities (except to the extent owned or controlled by a utility
franchisee) common areas, landscaping, hardscaped areas and fountains; (ii) frequent and regular
inspection for graffiti or damage or deterioration or failure, and immediate repainting or repair or
replacement of all surfaces, fencing, walls, equipment, etc., as necessary; (iii) emptying of trash
receptacles and removal of litter; (iv) regular sweeping of roadways and sidewalks throughout
the Property; (v) fertilizing and replacing vegetation as necessary; (vi) cleaning windows on a
regular basis; (vi) painting the buildings on a regular program and prior to the deterioration of the
painted surfaces; (vii) conducting roof inspections on a regular basis and maintaining roofs in a
leak -free and weather -tight condition.
11 11 4.3.3. All Improvements repaired or replaced under this Section 4.3
shall be repaired or replaced with materials, apparatus and facilities of quality comparable to the
quality of the materials, apparatus and facilities identified for the Improvements under the
Development Agreements or this Housing Agreement, [and in accordance with the Special
Restrictions].
4.3.4. Owner's obligations to maintain the Improvements as provided
in this Section 4.3 shall include, but not be limited to, the following;
4.3.4.1. Maintaining all paved surfaces, including streets,
drives, parking areas and curbs of the common areas in a smooth and evenly covered condition,
which maintenance work shall include without limitation, cleaning, sweeping, re- striping,
repairing and resurfacing of the paved surfaces using surface material of an appearance and
quality comparable to the materials installed under the Development Agreements and this
Housing Agreement and consistent with the Special Restrictions;
4.3.4.2. Removal of all papers, debris, filth and refuse, and
washing and sweeping the common areas to the extent necessary to keep the Project in a first -
class, clean and orderly condition, and washing down and/or cleaning all hard surfaces including
brick, metal, concrete, glass, wood and other structural members as required;
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Declaration of Affordable Housing Covenants
4.3.4.3. Operating, keeping in repair, cleaning and replacing
and/or re-ballasting all common area lighting fixtures, equipment and facilities as may be
reasonably required, including all lighting necessary or appropriate for the Improvements,
security and exterior lights intended to illuminate the Project;
4.3.4.4. Cleaning and maintaining all landscaped areas,
including landscape planting areas, lawn areas and planters around and adjacent to exterior walls
of buildings, repairing automatic sprinklers, weeding, pruning, fertilizing and making
replacement of shrubs and other landscaping as required; and
4.3.4.5. Maintaining, repairing and replacing as necessary
any freestanding, monument or pylon signs on the Property.
4.4. Failure to Maintain. If Owner or any Successor Owner fails to maintain
the Improvements in accordance with the requirements of Section 4.3, City representatives or
the Program Administrator and its designee shall have the right but not the obligation to enter the
Project upon ninety (90) days' notice to Owner or a Successor Owner (as applicable)_(unless
such failure to maintain involves a serious and imminent health risk to tenants, in which event no
prior notice is required), to correct any violation, and hold Owner and/or the Successor Owner
responsible for the cost thereof, and such cost, until paid, shall constitute a lien on the applicable
portion of the Property.
0 1
4.5. Assignment of Obligation to Maintain. Owner may, subject to the prior
approval of the Program Administrator, which approval shall not be unreasonably withheld,
assign the maintenance responsibilities contained herein to the subsequent purchasers of the
Property, a portion of the Property, or individual buildings thereon, through appropriate
covenants, conditions and restrictions to be recorded against one or more portions of the
Property. If Owner assigns to another party some portion of the repair and maintenance
responsibilities under this Section 4.3 in accordance with this Section 4.5, then on the date of
such assignment Owner shall have no further liability under this Section 4 for that portion of the
maintenance obligations so assigned.
5. Sale or Transfer of the Project.
5.1. Limitations on Transfers. Prior to the later of (a) the date Owner receives
a Final Certificate of Compliance for the Project under the DDA or (b) Affordability
Commencement Date, Owner shall not (except for Permitted Transfers) voluntarily sell, transfer
or otherwise dispose of the Property, or any portion thereof (other than for individual tenant use
as contemplated hereunder), without (a) obtaining the prior written consent of the Program
Administrator and (b) having the Successor Owner assume the Owner's obligations under this
Housing Agreement with respect to that portion of the Property acquired by the Successor
Owner.
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Declaration of Affordable Housing Covenants
I
5.1.1. Reasonable Consent to Transfer. If Owner requests the consent
of the Program Administrator for a sale, transfer or disposition of the Project, the Program
Administrator's consent shall not be unreasonably withheld or delayed if the following
conditions are satisfied: (A) (1) Owner is not in default under this Agreement; (2) the Program
Administrator determines that the operation of the Project by the transferee would comply with
the provisions of this Agreement; (3) either (a) the transferee or its property manager has at least
[three] years' experience in the ownership, operation and management of comparable rental
housing projects, and at least [one] year's experience in the ownership, operation and
management of rental housing projects containing below - market -rate units, without any record of
material violations of discrimination restrictions or other state or federal laws or regulations or
local governmental requirements applicable to such projects, or (b) the purchaser or assignee
agrees to retain a property management firm with the experience and record described in
subclause (a) above, or (c) the transferring Owner or its management company will continue to
manage the Project for at least one year following such transfer and during such period will
provide training to the transferee and its manager in the responsibilities relating to the Affordable
Housing Units; and (4) the transferee does not have pending against it, and does not have a
history of significant and material building code violations or complaints concerning the
maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as
identified by any local, state or federal regulatory agencies; (B) the execution by the transferee of
any document reasonably requested by the City with respect to the assumption of the Owner's
obligations under this Agreement; (C) the delivery to the City of an opinion of the transferee's
ME legal counsel to the effect that this Agreement is valid, binding and enforceable obligations of the
transferee, subject to bankruptcy and other standard limitations affecting creditor's rights; and
(D) the receipt by the City of all fees and/or expenses then currently due and payable to the City
under this Agreement.
5.1.2. Release of Owner Upon Transfer. The written consent of the
Program Administrator to any transfer of the Project shall constitute conclusive evidence that the
transfer is not in violation of this Section 5.1. If the approved transferee as a Successor Owner
assumes all of the Owner's obligations under this Housing Agreement with respect to that
portion of the Property acquired by the Successor Owner, then in such case, the transferring
Owner shall be fully released from its obligations hereunder to the extent such obligations have
been fully assumed in writing by the Successor Owner.
5.1.3. Permitted Transfers. Owner may make Permitted Transfers
without the Program Administrator's prior consent. The City acknowledges that a sale or
exchange of 50% or more of the capital and profits interests in the Owner in any twelve -month
period will be treated for federal tax purposes as a change in ownership of the Project at the time
the 50% transfer occurs, but shall not be deemed a transfer under this Housing Agreement.
5.2. Assignment of Obligations. If the Program Administrator approves the
sale of the Property, Owner shall cause the purchaser of the Property to assume in writing all of
the obligations of Owner under this Agreement pursuant to an assignment agreement approved
by the Program Administrator (the "Assignment Agreement "), and Owner and the purchaser
NINE
M
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DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
shall cause the Assignment Agreement to be recorded in the Official Records of the County of
Orange against the purchaser's portion of the Property. When the approved Assignment
Agreement is recorded as required, then Owner shall be released from the obligations of this
Agreement for that portion of the Property transferred in fee to the purchaser.
5.3. Termination of Limitations on Sale. The provisions of this Section 5 shall
terminate in their entirety on the date that is 365 days after the last day of the Qualified Project
Period.
6. Permitted Mortgagees. Except a set forth in this Section 6, no covenant
obligating the Owner to obtain an agreement from any transferee to abide by all requirements
and restrictions of this Housing Agreement shall apply to a transfer to a Permitted Mortgagee
upon foreclosure, deed-in-lieu of foreclosure or comparable conversion of a loan secured by a
Permitted Mortgage, or to any subsequent transfer by the Permitted Mortgagee.
7. Term. This Housing Agreement and all and each of the provisions hereof shall
become effective upon its execution and delivery and shall remain in full force and effect
thereafter except as expressly provided herein. The provisions of this Housing Agreement are
intended to survive the expiration or termination of the Development Agreements.
8. Covenants and Restrictions to Run with the Land.
8.1. Covenants That Run With the Land. This entire Housing Agreement, 11
110
including without limitation all of the agreements by the Owner and all covenants and
restrictions contained in this Housing Agreement are intended to be covenants running with the 110
land (including the entire Property), and shall, in any event, and without regard to technical
classification or designation, legal or otherwise, be, to the fullest extent permitted by law and
equity, binding for the benefit and in favor of, and enforceable by Tustin, and its successors and
assigns, against Owner and all Successor Owners, and any party in possession or occupancy of
said Property or any portion thereof. Without in any way limiting the foregoing, each of the
Parties shall execute and deliver at their own cost and expense, any and all additional papers,
documents, or instruments, and shall do any and all acts and things reasonably necessary or
appropriate in connection with the performance of their respective obligations hereunder in order
to carry out the intent and purposes of this Housing Agreement.
8.2. Tustin as Identified Beneficiary. In amplification and not in restriction of
the provisions set forth hereinabove, Owner intends and agrees that both the City and the
Authority shall each be deemed a beneficiary of the agreements, covenants and restrictions
herein both for and in its own right and also for the purposes of protecting the interests of the
community. All covenants and restrictions without regard to technical classification or
designation shall be binding for the benefit of both the City and the Authority, and such
covenants and restrictions shall run in favor of both the City and the Authority for the entire
period during which such covenants and restrictions shall be in force and effect, without regard
to whether the City is or remains an owner of any land or interest therein to which such
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DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
covenants and restrictions relate. The City and the Authority shall each have the independent
right, in the event of any breach of this Housing Agreement or covenant or restriction herein, to
exercise all the rights and remedies, and to maintain any action at law or suit in equity or other
proper proceedings to enforce the curing of such breach of this Housing Agreement or covenants
or restrictions.
8.3. Modification of Housing Agreement Without the Consent of Tenants and
Mortgagees. The City and its successors and assigns, as the first party, and Owner and/or any
Successor Owners then owning any portion of the Property or any interest in the Project, as the
second parties, shall have the right upon written agreement signed by the first party and all of the
second parties then holding an interest in real property in the Property and the Project, to consent
and agree to changes in, or to eliminate in whole or in part, any of the terms or provisions in this
Housing Agreement without the consent of any tenant, lessee, easement holder, licensee,
mortgagee, trustee, beneficiary under a deed of trust, or any other person or entity having any
interest less than a fee in the Property or the Project.
8.4. No Third Party Beneficiaries. This Housing Agreement is not enforceable
by and does not run to the benefit of any person or entity other than Owner, the Successor
Owners, and both Tustin and the Authority and their respective successors and assigns. No
member of the public, no person or entity that is occupies and Affordable Housing Unit, no
adjacent landowner tenant that is
WIN 9. Burden and Benefit. Tustin and Owner hereby declare their understanding and
intent that all of the terms and provisions in this Housing Agreement are covenants and
restrictions that touch and concern the Property and that Owner's legal interest in the Property is
rendered less valuable thereby. Owner hereby further declares its understanding and intent that
the benefit of the covenants and restrictions that that touch and concern the Property are made for
the enhancement and enjoyment and use of the Project by Qualified Households who may be
entitled to lease Affordable Housing Units under the terms of this Housing Agreement and that
this Housing Agreement furthers the public purposes for which the Development Agreements
were entered into with Owner.
10. Uniformily-, Common Plan. The covenants, reservations and restrictions hereof
shall apply uniformly to the entire Property in order to establish and carry out a common plan for
the use, development and improvement of the Property.
It. Default Enforcement.
the following:
11.1. Default. "Event of Default" under this Housing Agreement means any of
11.1.1. A breach or default occurs under the Special Restrictions;
11.1.2. A breach or default occurs under either of the Development
Agreements as it relates to the Property; or
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Declaration of Affordable Housing Covenants
11.1.3. Owner or any Successor Owner fails to perform fully any of its
obligations set forth in this Housing Agreement within thirty (30) days following receipt of
written notice regarding such other default; provided, that if such failure is capable of being
remedied but not capable of being remedied within thirty (30) days, then the defaulting party
shall have an additional period of time within which to remedy such failure, not in any event to
exceed sixty (60) days. The failure of the Program Administrator to notify Owner or a Successor
Owner of any such default shall not be deemed a waiver of the default, and Tustin shall have no
obligation to notify the defaulting party of the default.
11.2. Remedies. Following an Event of Default, the City and the Authority, and
each of them, may pursue all of their respective rights and remedies set forth in the Special
Restrictions, the Development Agreements, or this Housing Agreement or otherwise available at
law, in equity or by statute. The City's and the Authority's respective rights and remedies shall
be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or
of any right or remedy at law or in equity which the City or the Authority, as applicable, might
otherwise have by virtue under this Agreement and the exercise of one such right or remedy by
the City or the Authority, as applicable, shall not impair such Party's standing to exercise any
other right or remedy. The Parties agree that this Housing Agreement may be specifically
enforced.
11.2.1. In the event of any breach or default by Owner or any Successor
Owner under any mortgage or deed of trust, the City shall have the right, but not the obligation,
to perform the unperformed obligations at the expense of Owner, and all expenditures by the
City to cure such default shall accrue interest from the date such sums are actually spent by the
City at a default rate equal to the then "prime rate" specified by Wells Fargo Bank or its
successor plus three percent (3%), but not in excess of such rate as may be permitted under
applicable law. Payment shall be made by Owner to the City within thirty (30) days after written
request thereof. If payment is not made by Owner within thirty (30) days after such demand is
made then the City shall have the right to add such amount, to any sums then due or thereafter
becoming due from Owner under the this Housing Agreement. In addition, the amount due to
the City shall constitute a lien and charge upon the fee interest of Owner to Property and the City
shall have the right to record a notice (a "Delinquency Notice") against the Property, which
states the amount due from Owner. The aforesaid lien shall attach immediately upon recordation
of the Delinquency Notice. A copy of the Delinquency Notice shall be delivered to Owner
pursuant to Section 15.4. The lien may be foreclosed by appropriate action in court or in the
manner prescribed law. Upon such event, Owner shall be required to pay all attorney fees and
costs and expenses of the City in connection with the preparation, recordation and foreclosure of
such lien. Any such lien shall be prior to all encumbrances, liens, or charges on the Property
except (a) taxes which are by law prior thereto; (b) the rights of tenants pursuant to bona fide
leases; and (c) any permitted mortgage and advances thereunder made in good faith and for value
and recorded prior to the Delinquency Notice. The transfer of the Property shall not affect the
aforesaid lien.
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11.2.2. Non-Complying Affordable Housing Units. The Program
Administrator may make a determination of Owner's breach of its obligations regarding leasing
of the Affordable Housing Units based on information provided in the Annual Report or
determined by Tustin in its reasonable discretion based on information otherwise available to it.
In addition to and without limitation of any other rights and remedies set forth in this Housing
Agreement or otherwise available to any party legally entitled to enforce this Housing
Agreement, if a Default with respect to Section 3 occurs resulting in one or more Affordable
Housing Units becoming Non-Complying Units, and (i) if the Default is not cured within thirty
(30) days after notice by Tustin is provided to Owner, or (ii) if such Default cannot reasonably be
cured within the thirty (30) day period and Owner has not commenced the curing of such
Default, or if Owner is not otherwise diligently prosecuting such cure to completion, then Tustin
shall have the right to lease all Non-Complying Units and Owner shall lease to Tustin on demand
for a rental of $1.00 per Unit per year any and all of the Non-Complying Units at such time as
each of the Non-Complying Units is vacated. Notwithstanding any term or condition in this
Housing Agreement or in the lease under which Tustin leases a Non-Complying Unit pursuant to
this Section 11.2, Owner hereby consents to and grants Tustin the right to assign such lease or
sublet such Non-Complying Unit to a Qualified Household for Rent Consideration not to exceed
the applicable Maximum Monthly Affordable Rent, or to any non-profit housing provider
qualified as a 501 (c)(3) entity under the Internal Revenue Code (a "Provider") in the
community for $ 1.00 per year. The assignment or sublet to a Provider shall be on the condition
that such Provider subleases such Affordable Housing Units, or assigns such leases to a
Qualified Household at the Affordable Rent. If Tustin assigns or sublets to any Provider,
W notwithstanding any term or condition of the lease between Owner and Tustin, Owner hereby
consents to and grants such Provider the right to assign such lease or sublet such Affordable
Housing Unit to a Qualified Household for Rent Consideration not to exceed the applicable
Maximum Monthly Affordable Rent. If Tustin leases any Affordable Housing Units or a
Provider subleases any Affordable Housing Units or is the assignee of any leases from Tustin,
Tustin or the Provider, as the case may be, to the extent necessary to ensure compliance with
Section 2 hereof, shall sublease such Affordable Housing Unit or assign such leases to a
Qualified Household for Rent Consideration not to exceed the applicable Maximum Monthly
Affordable Rent. Any Rent Consideration paid under such a sublease or assignment shall be
paid to Owner after Tustin or Provider (or both), as the case may be, has been reimbursed for any
expenses incurred by it in connection with exercising the rights and remedies set forth in this
Section 11.2.2; provided that if Owner is in Default under any Permitted Mortgage representing
Senior Obligations, the Deeds of Trust and/or any other City approved encumbrance under the
Development Agreements in connection with the financing of the Property or any Improvements
thereon, such rent shall be paid to the party legally entitled thereto under the terms of the
applicable loan.
11.3. Lien of Mortgage. No breach of any of the provisions of this Housing
Agreement shall impair, defeat or render invalid the lien of any Mortgage made in good faith and
for value encumbering the Property or Project or any portion thereof.
FIRMS
1,
INS 22
DRAFT dated October 4, 2012 City of Tustin St. Anton
Declaration of Affordable Housing Covenants
11.4. Obli atg ion of Owner During Default. The Owner shall remain liable
under this Housing Agreement for any breach or default of this Housing Agreement that occurs v
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or is alleged to have occurred during the period that such Owner owned all or any part of the
Project, and such liability shall not be released or waived for any transfer of any portion of the
Project to a Successor Owner.
12. Administration Recording and Piling.
12.1. Administration. The administration of this Housing Agreement by the
City and the Authority shall be delegated by the City to the Authority and to the Program
Administrator. The Program Administrator shall have the authority to act on behalf of the City
and the Authority for all purposes to act under this Housing Agreement and provide all
approvals, notices, consents and interpretations that may be required under this Housing
Agreement from either the City or the Authority or both; provided that the Program
Administrator shall not have the authority to modify or amend this Housing Agreement.
12.2. Recording. Owner shall cause this Housing Agreement, and all
amendments and supplements hereto and thereto, to be recorded and filed in the Official Records
and in such other places as the Program Administrator may reasonably request. Owner shall pay
all fees and charges incurred in connection with any such recording. Written evidence of the
recorded Housing Agreement, a conformed copy, shall be provided to the Program
Administrator.
13. Indemnification. Owner shall defend, indemnify and hold harmless Tustin and
their respective officers, officials, agents, employees, representatives, and volunteers from and
against all loss, damage, costs, expenses, liability, claim or judgment relating in any manner to
Owner performance under this Agreement, except to the extent cause by the sole gross
negligence or willful misconduct of Tustin.
14. Limitation of Liability. Notwithstanding any other provision or obligation to the
contrary contained in this Housing Agreement: (i) the liability of Owner under this Housing
Agreement to any person or entity, including, but not limited to, the City is limited to the
Owner's interest in the Property and the Project, and such persons and entities shall look
exclusively to the Property and the Project for satisfaction of any claim arising under this
Agreement, and may also look to such other security as may from time to time be given for the
payment of obligations arising out of this Housing Agreement or any other agreement securing
the obligations of the Owner under this Housing Agreement; and (ii) from and after the date of
this Housing Agreement, no deficiency or other personal judgment for monetary damages shall
be rendered against Owner, the assets of Owner (other than Owner's interest in the Property and
the Project), or against Owner's partners, members, successors, transferees or assigns or against
each their respective officers, directors, employees, partners, agents, heirs and personal
representatives, as the case may be, in any action or proceeding arising out of this Housing
Agreement or arising out of any other agreements securing the obligations of Owner under this
23
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Housing Agreement, or any judgment, order or decree rendered pursuant to any such action or
proceeding.
15. Miscellaneous.
15.1. Governing Law. This Housing Agreement shall be governed by,
interpreted under, construed and enforced in accordance with the laws of the State of California,
without giving effect to any choice of law provisions.
15.2. Amendments This Agreement shall be amended only by written
instrument that (a) is executed by (i) the City and its successors and assigns, as the first party,
and (ii) Owner and/or any Successor Owners then owning any portion of the Property or any
interest in the Project, as the second parties; provided such instrument is signed by the first party
and all of the second parties then holding an interest in real property in the Property and the
Project, and (b) is duly recorded in the Official Records.
15.3. Waiver. No waiver of any provision or consent to any action under this
Housing Agreement shall constitute a waiver of any other provision or consent to any other
action, whether or not similar. No waiver or consent shall constitute a continuing waiver or
consent or commit a party to provide a waiver in the future except to the extent specifically set
forth in writing. Any waiver given by a party shall be null and void if the party requesting such
waiver has not provided a full and complete disclosure of all material facts relevant to the waiver
requested.
15.4. Notices. All notices, demands, consents, requests and other
communications required or permitted to be given under this Housing Agreement shall be in
writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the
other party; (b) five (5) days after such notice has been sent by United States mail via certified
mail, return receipt requested, postage prepaid, and addressed to the other party as set forth
below; or (c) the two (2) days after such notice has been deposited with a national overnight
delivery service reasonably approved by the parties (Federal Express, UPS and Airborne Express
are deemed approved by the parties), postage prepaid, addressed to the party to whom notice is
being sent as set forth below with next - business -day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service provider. Unless
otherwise provided in writing, all notices hereunder shall be addressed as follows:
MISS-.
24
DRAFT dated October 4, 2012 City of Tustin 1 St. Anton
Declaration of Affordable Housing Covenants
Owner: Anton Legacy Tustin L.P.
c/o St. Anton Partners
1801 1 Street, Suite 200
Sacramento, CA 95811
Attention: Steven L. Eggert
Fax: (916) 444-9843
Email: sle@antonllc.com
With a copy to:
Cox Castle Nicholson LLP
555 California Street, 10th Floor
San Francisco, CA 94104
Attention: Stephen C. Ryan
Fax: (415) 262-5199
Email: sryan@coxcastle.com
City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: Tustin Housing Authority
With copy to:
David Kendig
City Attorney
Woodruff, Spradlin & Smart
555 Anton Blvd.
Suite 1200
Costa Mesa, California 92626
15.5. Severabilily. Any provision of this Housing Agreement that is deemed to
be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be
ineffective to the extent of the invalidity or unenforceability of such provision and shall be
deemed stricken from this Housing Agreement. Any stricken provision shall not affect the
legality, enforceability or validity of the remainder of this Housing Agreement. If any provision
or part thereof of this Housing Agreement is stricken in accordance with the provisions of this
Section, then the stricken provision shall be replaced, to the extent possible, with a legal,
enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is
legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
15.6. Authority of Signatories. to Housing Agreement. Each person executing
this Housing Agreement represents and warrants that he or she is duly authorized and has legal
25
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
capacity to execute and deliver this Housing Agreement on behalf of the parties for which
execution is made. Each party represents and warrants to the other that the execution of this
r Housing Agreement and the performance of such party's obligations hereunder have been duly
authorized and that the agreement is a valid and legal agreement binding on such party and
enforceable in accordance with its terms.
15.7. Consent to Jurisdiction. The parties hereto agree that all actions or
proceedings arising in connection with this Housing Agreement shall be tried and litigated
exclusively in the state and federal courts located in the County of Orange, State of California.
This choice of venue is intended by the parties to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between or among the parties with respect to or
arising out of this Housing Agreement in any jurisdiction other than that specified in this Section.
Each Party waives any right that it may have to assert the doctrine forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in accordance with
this section, and stipulates that the state and federal courts located in the County of Orange, State
of California, shall have in personam jurisdiction and venue over each of them for the purpose of
litigating any dispute, controversy or proceeding arising out of this Housing Agreement. Each
Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any
action against it as contemplated by this section by means of registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices as set forth in this
Housing Agreement and in the manner set forth in the section of this Housing Agreement
pertaining to notice. Any final judgment rendered against the party in any action or proceeding
shall be conclusive as to the subject of such final judgment and may be enforced in other
jurisdictions in any manner provided by law.
15.8. Time Is of the Essence. Time is of the essence in this Housing
Agreement, and failure to timely comply with provisions of this Housing Agreement shall be a
breach under this Housing Agreement.
15.9. Attorneys' Fees. If any Party files an action or brings any proceeding
against the other Party arising from this Housing Agreement, the prevailing party shall be
entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys'
fees and costs to be fixed by the court. A Party not entitled to recover its costs shall not recover
attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a
judgment for purposes of deciding whether a Party is entitled to its costs or attorneys' fees.
15.10. Recitals. The recitals set forth at the beginning of this Housing
Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof and the
terms and conditions set forth in the recitals, if any, shall be deemed a part of this Housing
Agreement.
15.11. Exhibits. All Exhibits and Schedules attached to this Housing
Agreement are hereby incorporated by this reference and are made a part of this Housing
Agreement as if fully set forth herein.
26
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
15.12. Captions. All captions, titles or headings of the articles, sections,
paragraphs or subparagraphs of this Housing Agreement are inserted solely as a matter of
convenience of the parties hereto, and for reference, shall not be deemed to be a part of this
Housing Agreement, and shall not define, limit, extend or describe the scope of this Housing
Agreement nor be used or construed in the interpretation or determination of the validity of this
Housing Agreement or any provision hereof
15.13. Counterparts. This Housing Agreement may be executed in
counterparts, and all such counterparts when taken together shall constitute a single agreement.
<<<< Signature Page Follows >>>>
WA
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
wv
IN WITNESS WHEREOF, the City, the Authority, and Owner have executed this
Housing Agreement by duly authorized representatives, all as of the date first written above.
Dated:
APPROVED AS TO FORM
12
By:
David Kendig, City Attorney
Amy E. Freilich
Special Tustin Counsel
DRAFT dated October 4, 2012
CITY OF TUSTIN:
L-In
Jeffrey C. Parker, City Manager
TUSTIN HOUSING AUTHORITY
ME
Jeffrey C. Parker
Executive Director
OWNER:
ANTON LEGACY TUSTIN L.P.,
a California limited partnership
By: _
Name:
Title:
6fl.,
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
State of California
ss.
County of Los Angeles
On -, 2012 before me,
(Insert name of Notary Public and title)
personally appeared , who
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
- (Seal)
Signature of Notary Public
NZ
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
ISBN
ME
ME- EXHIBIT A
01
I
LEGAL DESCRIPTION OF PROPERTY
That certain real property located in the City of Tustin, County of Orange, State of
California, and legally described as follows:
{insert legal description for St. Anton parcel}
30
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
For purposes of this Housing Agreement, the following initially capitalized terms shall
mean the following:
"lA North Property" has the meaning set forth in Recital G.
"Act" means Chapter 8 (commencing with Section 33750) of Part I of Division 24 of the
Health and Safety Code of the State of California, as amended.
"Affordability Commencement Date" means the date on which both of the following
have occurred: (a) Owner has received a final certificate of occupancy for the entire Project and
(b) at least 128 dwelling units, including 128 Affordable Housing Units have been leased to
Qualified Households and are occupied by Qualified Households.
"Affordable Housing Units" means the following dwelling units at the Project to be
rented to, occupied by or held available for the Very Low Income Households, Low Income
Households, and Moderate Income Households, as applicable, identified below, in each case
leased to a Qualified Household at not more than the Monthly Affordable Rent as described in
Section 3 in this Housing Agreement applicable to such restricted units:
Type of Unit
Required Number of Units
Very Low Income Units
88
Low Income Units
73
Moderate Income Units
64
Total Affordable Housing Units 1
255
"Affordable Rent" means for any Affordable Housing Unit, monthly Rent Consideration
payable by the tenant that does not exceed the Maximum Monthly Affordable Rent applicable to
that Affordable Housing Unit.
"Assignment Agreement" has the meaning set forth in Section 5.2.
"Authority" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Base Unit Count" has the meaning set forth in Recital G.
"Certificate of Continuing Program Compliance" means the annual report of
occupancy for the Affordable Housing Units including the verification of income provided by
Owner to Agency as described in Section 3.10.6 hereof or such other form as may be prescribed
by the Agency.
Exhibit B — page I
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
I
IN
ME
"City" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"City Code" has the meaning set forth in Recital D.
"Completion Certificate" means the notice of completion of construction filed by
Owner.
"Completion of Construction" has the meaning set forth in Section 4.3.1
"Density Bonus Law" has the meaning set forth in Recital D.
"Density Bonus Ordinance" has the meaning set forth in Recital D.
"DA" has the meaning set forth in Recital F.
"DDA" has the meaning set forth in Recital A.
"Delinquency Notice" has the meaning set forth in Section 10.2.1.
"Development Agreements" has the meaning set forth in Recital F.
"Entitlements" has the meaning set forth in Recital D.
"Event of Default" has the meaning set forth in Section 10.1.
"Fiscal Year" means the property tax year for the State of California from July 1 until
the following June 30, as such fiscal year may be changed from time to time by the State of
California.
"Gate Concession" has the meaning set forth in Recital H.
"Gross Income" has the meaning for `gross income' that is defined by California Code
of Regulations Title 25, §6914 as the anticipated Income of a person or family for the twelve-
month period following the date of determination of Income. To make the projection, "a
`snapshot' of the household's current circumstances is used to project future Income. The
circumstances on the date of measurement should be assumed to continue for the next 12 months
unless there is verifiable evidence to the contrary.
"Height Concession" has the meaning set forth in Recital H.
"Income" means `Income,' as defined by California Code of Regulations Title 25,
§6914, and shall include, but not be limited to the following:
DRAFT dated October 4, 2012
Exhibit B — page 2
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
1) The gross amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses;
2) The net income from operation of a business or profession or from rental or real or
personal property (for this purpose, expenditures for business expansion or
amortization of capital indebtedness shall not be deducted to determine the net
income from a business);
3) Interest and dividends;
4) The full amount of periodic payments received from social security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits and other
similar types of periodic receipts;
5) Payments in lieu of earnings, such as unemployment and disability compensation,
worker's compensation and severance pay (but see subdivision (b)(3));
6) Public Assistance. If the public assistance payment includes an amount specifically
designated for shelter and utilities which is subject to adjustment by the public
assistance agency in accordance with the actual cost of shelter and utilities, the
amount of public assistance income to be included as income shall consist of-
a) The amount of the allowance or grant exclusive of the amount specifically
designated for shelter and utilities, plus
b) The maximum amount which the public assistance agency could in fact allow
for the family for shelter and utilities,
7) Periodic and determinable allowances such as alimony and child support payments,
and regular contributions or gifts received from persons not residing in the dwelling;
and
8) All regular pay, special pay and allowances of a member of the Armed Forces
(whether or not living in the dwelling) who is head of the family or spouse (but see
subdivision (b)(5)).
"Income" shall not include, the following:
1) Casual, sporadic and irregular gifts (includes casual, sporadic and irregular income
under this exclusion);
2) Amounts which are specifically for or in reimbursement of the cost of medical
expenses;
Exhibit B — page 3
DRAFT dated October 4, 2012
City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
1w�
MEN-
11
MINE
3) Lump -sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and worker's
compensation), capital gains and settlement for personal or property losses;
4) Amounts of educational scholarships paid directly to the student or to the educational
institution, and amounts paid by the government to a veteran for use in meeting the
costs of tuition, fees, books and equipment. Any amounts of such scholarships, or
payments to veterans not used for the above purposes that are available for
subsistence are included in income;
5) The special pay to a serviceman head of a family away from home and exposed to
hostile fire;
6) Relocation payments made pursuant to federal, state, or local relocation law;
7) Foster child care payments;
8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp
Act of 1964 which is in excess of the amount actually charged the eligible household;
and
9) Payments received pursuant to participation in the following volunteer programs
under the ACTION Agency:
VEIN"!
a. National Volunteer Antipoverty Programs which include VISTA, Service
Learning Programs and Special Volunteer Programs.
b. National Older American Volunteer Programs for persons aged 60 and over
which include Retired Senior Volunteer Programs, Foster Grandparent
Program, Older American Community Services Program, and National
Volunteer Program to Assist Small Business Experience, Service Corps of
Retired Executive (SCORE) and Active Corps of Executives (ACE).
"Improvements" means all of the buildings, structures, parking, fixtures, site
improvements (including landscaping and hardscaping), amenities and facilities constructed or
installed on the Property, comprising the constructed Project, as more particularly set forth in the
Development Agreements and included in Approved Plans (and in the Scope of Development).
"Ineligible Unit" has the meaning set forth in Section 2.7.1.
"Initial Leasing Period" has the meaning set forth in Section 2.3.6.
"IRC Sections 42 and 143" means Sections 42 and 143 of the Internal Revenue Code of
1986 as amended, and any regulations promulgated thereunder.
"Local Preference Policy" has the meaning set forth in Section 2.9.10.
Exhibit B — page 4
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
"Low Income Household" means a household of individuals whose collective annual
Gross Incomes do not exceed sixty percent (60%) of the annual Orange County Median Income,
with adjustments for smaller and larger families.
"Low Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Low Income Households in accordance with the
Development Agreements and this Housing Agreement.
"Mandatory Density Bonus" has the meaning set forth in Recital H.
"Maximum Monthly Affordable Rent" means for any Affordable Housing Unit, the
maximum monthly Rent Consideration payable by the tenant under the lease that does not
exceed the following: (a) with respect to Very Low Income Units, the Annual Maximum Very
Low Income Rent for a Very Low Income Household (calculated in accordance with the
requirements below) divided by twelve (12) as specifically applicable to the particular Qualified
Household that is the tenant, (b) with respect to Low Income Units, the Annual Maximum Low
Income Rent for a Low Income Household (calculated in accordance with the requirements
below) divided by twelve (12), as specifically applicable to the particular Qualified Household
that is the tenant, and (c) with respect to Moderate Income Units, the Annual Maximum
Moderate Income Rent for a Moderate Income Household (calculated in accordance with the
requirements below) divided by twelve (12), as specifically applicable to the particular Qualified
Household that is the tenant. The applicable Annual Maximum Rent for a particular Qualified
Household shall take into account and include a reasonable allowance for utilities and shall
otherwise be an amount not in excess of the following:
MR
K� NO
For "Moderate Income Units," as more particularly defined in Health and Safety Code
Section 50053 (b)(4), and as generally described herein, the "Annual Maximum
Moderate Income Rent" shall be the product obtained by multiplying (i) thirty percent
(30%) by (ii) one hundred and ten percent (110%) of the annual Orange County Median
Income adjusted for family size appropriate for the units, including a reasonable utility
allowance. Notwithstanding the foregoing, in accordance with Health and Safety Code
Section 50053 (b)(4), the City has determined and hereby agrees that, for a Moderate
Income Household with annual gross incomes that exceed one hundred and ten percent
(110%) of the annual Orange County Median Income, adjusted for family size
appropriate for the unit, the Annual Maximum Moderate Income Rent shall be calculated
as not to exceed the product obtained by multiplying (i) thirty percent (30%) by (ii) one
hundred and twenty percent (120%) of the annual Orange County Median income
adjusted for family size appropriate for the units, including a reasonable utility allowance.
For "Low Income Units," as more particularly defined in Health and Safety Code
Section 50053 (b)(3), and as generally described herein, the "Annual Maximum Low
Income Rent" shall be the product obtained by multiplying (i) thirty percent (30%) by
(ii) sixty percent (60%) of the annual Orange County Median Income adjusted for family
size appropriate for the units, including a reasonable utility allowance.
Exhibit B — page 5
TL
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
For "Very Low Income Units," as more particularly defined in Health and Safety Code
Section 50053 (b)(2), and as generally described herein, the "Annual Maximum Very
Low Income Rent" shall be the product obtained by multiplying (i) thirty percent (30 %)
by (ii) fifty percent (50 %) of the annual Orange County Median Income adjusted for
family size appropriate for the units, including a reasonable utility allowance.
"Moderate Income Household" means a household of individuals whose collective
annual Gross Incomes do not exceed one hundred and twenty percent (120 %) of the annual
Orange County Median Income, with adjustments for smaller and larger families.
"Moderate Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Moderate Income Households in accordance with
the Development Agreements and this Housing Agreement.
"Non- Complying Units" shall mean an Affordable Housing Unit which is occupied
and/or leased in violation of Section 2 of this Housing Agreement; provided that an Affordable
Housing Unit that is leased to a Qualified Household shall not be deemed to be a Non -
Complying Unit solely as a result of the Qualified Household losing income eligibility between
certification dates.
"Orange County Median Income" means the median family income for the Orange
County Primary Metropolitan Statistical Area as most recently established by official annual
publication of the Federal Department of Housing and Urban Development as published,
modified and released by the State Department of Housing and Community Development,
adjusted for household size.
"Owner" means the owner of fee title to all or any portion of the Development Parcel,
which as of the Effective Date is Anton Legacy Tustin L.P., a California limited partnership, and
each Successor Owner.
"Parking Concession" has the meaning set forth in Recital H.
"Party" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Permitted Mortgage" means Owner's interim and permanent financing loan(s) for
acquisition, development, and construction, secured by a deed of trust recorded against the
Property, as may be allowed by the DDA and as may be approved by the City (if such approval
is required under the terms of the DDA).
"Permitted Mortgagee" means the lender under a Permitted Mortgage.
Exhibit B page 6
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
"Permitted Transfer" means any of the following: [NOTE: to be unformed to the
definition of Permitted Transfer in the DDA] � IING
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"Program Administrator" means the City Manager or a Tustin Housing Authority staff
member designated by the Authority to act as the program administrator under this Housing
Agreement.
"Project" means the Property and the Improvements, together with any other personal
property owned by Owner and located on, or used in connection with, the Improvements.
"Property" means the real property legally described on Exhibit "A ", which is attached
hereto and by this reference incorporated herein, and all rights and appurtenances thereunto
appertaining.
"Property Tax Exemption" means the Owner of the Property is exempt from the
obligation to pay some or all of the property taxes on the Property that would be payable by an
owner without any such exemption.
"Provider" has the meaning set forth in Section 10.2.2.
"Qualified Household" has the meaning set forth in Section 2.9.4.
"Qualified Project Period" means the period beginning on the Affordability MEMO
Commencement Date and ending on the date which is fifty -five (55) years after the Affordability°
Commencement Date. U
"Replacement Unit" has the meaning set forth in Section 2.7.1.
"Rent Consideration" means all consideration paid by a tenant to the landlord under a
lease for housing services and amenities, of the same type and amount as provided to market rate
dwelling units in the Project, whether or not occupants of market rate dwelling units pay separate
charges for such services and amenities. Housing services and common area amenities include,
but are not limited to, the following: parking, use of common facilities including pools or health
spas, and utilities if the project is master - metered. Notwithstanding the foregoing, utility
charges, to the extent individually metered for each unit in the Project, may be passed through or
billed directly to the occupants of Affordable Housing Units in the Project in addition to and
separate from any items of Rent Consideration.
"Setback Concession" has the meaning set forth in Recital H.
"Special Restrictions" has the meaning set forth in Recital E.
"Specific Plan" has the meaning set forth in Recital C.
Exhibit B — page 7
DRAFT dated October 4, 2012 City of Tustin 1 St. Anton
Declaration of Affordable Housing Covenants
"Successor Owner" means any person or entity who owns all or any portion of the
Property, including without limitation any of the same who or which, if approved by the City,
become an assignee of or successor of the Owner's rights, obligations, powers, and
responsibilities required by this Agreement.
"TCAC" means the California Tax Credit Allocation Committee, or its successor agency.
"TCAC Regulations" means California Code of Regulations, Title 4, Division 17,
Chapter 1, as amended from time to time during the term of this Agreement.
"Tustin" has the meaning set forth in the introductory paragraph of this Housing
Agreement.
"Verification of income" has the meaning set forth in Section 2.9.2.
"Very Low Income Household" means a household of individuals whose collective
annual Gross Incomes do not exceed fifty percent (50 %) of the annual Orange County Median
Income, with adjustments for smaller and larger families.
"Very Low Income Units" means the dwelling units in the Project, if any, required to be
rented to, occupied by, or held available for Very Low Income Households in accordance with
the Development Agreements and this Housing Agreement.
Exhibit B — page 8
DRAFT dated October 4, 2012 City of Tustin / St. Anton
Declaration of Affordable Housing Covenants
Environmental Analysis Checklist/Evaluation
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s
COMMUNITY DEVELOPMENT DEPARTMENT
300 Centennial Tray, Tustin, CA 927 80
(714) 573 -3100
ENVIRONMENTAL ANALYSIS CHECKLIST
For Projects With Previously Certified /Approved Environmental Documents:
Environmental Impact Statement/Environmental Impact Report (EIS/EIR)
for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin
The following checklist takes into consideration the preparation of an environmental document prepared at an
earlier stage of the proposed project. This checklist evaluates the adequacy of the earlier document pursuant to
Section 15162 and 15168 of the California Environmental Quality Act (CEQA) Guidelines.
A. BACKGROUND
Project Title(s): Proposed development of Tustin Legacy Disposition Package 1A -North — 225
affordable multi - family residential apartment homes. The proposal requests City
of Tustin consideration of Development Agreement (DA) 2012 -002, Concept Plan
(CP) 2012 -003, Design Review (DR) 2012 -005, Density Transfer, Density Bonus,
and Concessions or Incentives authorized under Tustin City Code Section 9123
related to the provision of affordable residential apartment housing units in
LIS compliance with California Government Code Section 65915(1) required for the
proposed development of Tustin Legacy Disposition Package 1 A -North.
Lead Agency: City of Tustin, 300 Centennial Way, Tustin, California 92780
Lead Agency Contact Person: Dana L. Ogdon, AICP Phone: (714) 573 -3109
Project Location: Disposition Package IA -North is an irregular parcel with 8.073 acres for multi-
family development and 4.706 acres for park development (12.779 acres gross),
within Planning Area 15, MCAS- Tustin Specific Plan (Tustin Legacy), bounded
by future Tustin Ranch Road on the east, future Legacy Road on the north, future
Park Avenue on the west, and a vacant parcel to the south.
Project Sponsor's Name and Address: St. Anton Partners
c/o Mr. Steven L. Eggert,
4630 Campus Drive, Suite 111
Newport Beach, CA 92660
General Plan Designation: MCAS Tustin Specific Plan
Zoning Designation: MCAS Tustin Specific Plan, Residential Core, Planning Area 15, which allows
Medium -High Density Residential at 16 -25 dwelling units per acre.
Project Description: Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design
Review (DR) 2012 -005, Density Transfer, Density Bonus, and Concessions or
13
Incentives authorized under Tustin City Code Section 9123 related to the
provision of affordable housing units in compliance with California Government
Code Section 65915(l)(MCAS Tustin Planning Area 15) for the purpose a
developing 225 multi-family residential apartment homes including l(ges
g
affordable units (35 very low income, 20 low income and 50 moderate income-,
which qualifies the project for a density bonus concessions or incentives
authorized under Tustin City Code Section 9123 related to the provision of
affordable housing units in compliance with California Government Code Section
65915(1). In addition, the project applicant has partnered with The Irvine
Company, LLC, a developer approved by the City of Tustin to develop
Disposition Package 2A in Planning Area 13, and requested the transfer of 120 of
the 157 affordable housing units from Disposition Package 2A to Disposition
Package IA-North with 120 market rate units requested to be transferred from
Disposition Package IA-North to Disposition Package 2A. Should the Tustin
City Council approve the transfer request, the proposed development of
Disposition Package 2A would include 37 moderate unit income units and 496
market rate units (for a total of 533 residential apartment units), and the proposed
development of Disposition Package IA-North would include a total of 225
affordable residential apartment units (88 very low income, 73 low income, and
64 moderate income). The proposed use is consistent with the approved Specific
Plan.
Surrounding Uses: North/East: Vacant — MCAS Tustin Planning Area 15, Residential Core.
West: Vacant — MCAS Tustin Planning Area 8, Community Core
South: Vacant — MCAS Tustin Planning Area 15, Residential Core
Previous Environmental Documentation: On January 16, 2001, the City of Tustin certified the Program
Final Environmental Impact Statement/Environmental Impact Report (FEIS/EIR) for the reuse and
disposal of MCAS Tustin. On December 6, 2004, the City Council adopted Resolution No. 04-76
approving a Supplement to the FEIS/EIR for the extension of Tustin Ranch Road between Walnut
Avenue and the future alignment of Valencia North Loop Road. On April 3, 2006, the City Council
adopted Resolution No. 06-43 approving an Addendum to the FEIS/EIR. The FEIS/EIR along with its
Supplemental and Addendum is a program EIR under the California Environmental Quality Act
(CEQA). The FEIS/EIR, Supplemental and Addendum considered the potential environmental impacts
associated with development on the former Marine Corps Air Station, Tustin.
ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED
The environmental factors checked below would be potentially affected by this project, involving at least one
impact that is a "Potentially Significant Impact" as indicated by the checklist in Section D below,
❑Land Use and Planning
F]Population and Housing
r-]Geology and Soils
❑Hydrology and Water Quality
❑Air Quality
❑Transportation & Circulation
❑Biological Resources
❑Mineral Resources
❑Agricultural Resources
E]Hazards and Hazardous Materials
F]Noise
❑Public Services
❑Utilities and Service Systems
❑Aesthetics
❑Cultural Resources
❑Recreation
❑Mandatory Findings of
Significance
C. DETERMINATION:
On the basis of this initial evaluation:
❑ 1 find that the proposed project COULD NOT have a significant effect on the environment, and a
NEGATIVE DECLARATION will be prepared.
❑ I find that although the proposed project could have a significant effect on the environment, there will
not be a significant effect in this case because the mitigation measures described on an attached sheet
have been added to the project. A NEGATIVE DECLARATION will be prepared.
❑ I find that the proposed project MAY have a significant effect on the environment, and an
ENVIRONMENTAL IMPACT REPORT is required.
❑ I find that the proposed project MAY have a significant effect(s) on the environment, but at least one
effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and
2) has been addressed by mitigation measures based on the earlier analysis as described on attached
sheets, if the effect is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated."
An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that
remain to be addressed.
I find that although the proposed project could have a significant effect on the environment, there WILL
NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed
adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated
pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the
proposed project.
❑ I find that although the proposed project could have a significant effect on the environment, there WILL
NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed
adequately in an earlier NEGATIVE DECLARATION pursuant to applicable standards, and 2) have
been avoided or mitigated pursuant to that earlier NEGATIVE DECLARATION, including revisions or
mitigation measures that are imposed upon the proposed project.
Preparer:_
Dana L. Ogdon, AICP, A is nt Director
Eliza -ð A. Binsack, Community Development Director
D. EVALUATION OF ENVIRONMENTAL IMPACTS
See Attached
Date:_Z-0, �' 1Z-- --
Date
EVALUATION OF ENVIRONMENTAL IMPACTS
I. AESTHETICS — Would the project:
a) Have a substantial adverse effect on a scenic vista?
b) Substantially damage scenic resources, including, but not
limited to, trees, rock outcroppings, and historic buildings
within a state scenic highway?
c) Substantially degrade the existing visual character or
quality of the site and its surroundings?
d) Create a new source of substantial light or glare which
would adversely affect day or nighttime views in the area?
11. AGRICULTURE RESOURCES: In determining
whether impacts to agricultural resources are significant
environmental effects, lead agencies may refer to the
California Agricultural Land Evaluation and Site Assessment
Model (1997) prepared by the California Dept. of
Conservation as an optional model to use in assessing impacts
on agriculture and farmland. Would the project:
a) Convert Prime Farmland, Unique Farmland, or Farmland
of Statewide Importance (Farmland), as shown on the maps
prepared pursuant to the Farmland Mapping and Monitoring
Program of the California Resources Agency, to non-
agricultural use?
b) Conflict with existing zoning for agricultural use, or a
Williamson Act contract?
c) Involve other changes in the existing environment which,
due to their location or nature, could result in conversion of
Farmland, to non-agricultural use?
Ill. AIR QUALITY: Where available, the significance
criteria established by the applicable air quality management
or air pollution control district may be relied upon to make the
following determinations. Would the project:
a) Conflict with or obstruct implementation of the applicable
air quality plan?
b) Violate any air quality standard or contribute substantially
to an existing or projected air quality violation?
c) Result in a cumulatively considerable net increase of any
criteria pollutant for which the project region is non-
attainment under an applicable federal or state ambient air
quality standard (including releasing emissions which exceed
quantitative thresholds for ozone precursors)?
d) Expose sensitive receptors to substantial pollutant
concentrations?
e) Create objectionable odors affecting a substantial number
of people?
CI
❑
No Substantial
❑
New
More
Change From
F-1
Significant
Severe
Previous
Impact
Impacts
Analysis
OWN
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0
❑
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Z
Z
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❑
Z
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F-11
Z
CI
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VI. GEOLOGY AND SOILS: - Would the project:
I
I
a) Expose people or structures to potential substantial
adverse effects, including the risk of loss, injury, or death
involving:
No Substantial
New More Change From
rm-
ISM
IV. BIOLOGICAL RESOURCES: - Would the project:
Significant Severe Previous
Impact Impacts Analysis
a) Have a substantial adverse effect, either directly or
through habitat modifications, on any species identified as a
candidate, sensitive, or special status species in local or
regional plans, policies, or regulations, or by the California
Department of Fish and Game or U.S. Fish and Wildlife
Service?
D
b) Have a substantial adverse effect on any riparian habitat
or other sensitive natural community identified in local or
regional plans, policies, regulations or by the California
Department of Fish and Game or U.S. Fish and Wildlife
Service?
EJ
c) Have a substantial adverse effect on federally protected
wetlands as defined by Section 404 of the Clean Water Act
(including, but not limited to, marsh, vernal pool, coastal, etc.)
through direct removal, filling, hydrological interruption, or
other means?
F] E
d) Interfere substantially with the movement of any native
resident or migratory fish or wildlife species or with
established native resident or migratory wildlife corridors, or
impede the use of native wildlife nursery sites?
e) Conflict with any local policies or ordinances protecting
biological resources, such as a tree preservation policy or
ordinance?
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f) Conflict with the provisions of an adopted Habitat
Conservation Plan, Natural Community Conservation Plan, or
other approved local, regional, or state habitat conservation
plan?
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V. CULTURAL RESOURCES: - Would the project:
a) Cause a substantial adverse change in the significance of
a historical resource as defined in § 15064.5?
b) Cause a substantial adverse change in the significance of
an archaeological resource pursuant to § 15064.5?
EJ
c) Directly or indirectly destroy a unique paleontological
resource or site or unique geologic feature?
EJ
d) Disturb any human remains, including those interred
outside of formal cemeteries?
VI. GEOLOGY AND SOILS: - Would the project:
I
I
a) Expose people or structures to potential substantial
adverse effects, including the risk of loss, injury, or death
involving:
i) Rupture of a known earthquake fault, as delineated on the
most recent Alquist-Priolo Earthquake Fault Zoning Map
issued by the State Geologist for the area or based on other
substantial evidence of a known fault? Refer to Division of
Mines and Geology Special Publication 42.
ii) Strong seismic ground shaking?
iii) Seismic-related ground failure, including liquefaction?
iv) Landslides?
b) Result in substantial soil erosion or the loss of topsoil?
c) Be located on a geologic unit or soil that is unstable, or
that would become unstable as a result of the project, and
potentially result in on- or off-site landslide, lateral spreading,
subsidence, liquefaction or collapse?
d) Be located on expansive soil, as defined in Table 18 -1 -B
of the Uniform Building Code (1994), creating substantial
risks to life or property?
e) Have soils incapable of adequately supporting the use of
septic tanks or alternative wastewater disposal systems where
sewers are not available for the disposal of waste water?
VII. HAZARDS AND HAZARDOUS MATERIALS:
Would the project:
a) Create a significant hazard to the public or the
environment through the routine transport, use, or disposal of
hazardous materials?
b) Create a significant hazard to the public or the
environment through reasonably foreseeable upset and
accident conditions involving the release of hazardous
materials into the environment?
C) Emit hazardous emissions or handle hazardous or acutely
hazardous materials, substances, or waste within one-quarter
mile of an existing or proposed school?
d) Be located on a site which is included on a list of
hazardous materials sites compiled pursuant to Government
Code Section 65962.5 and, as a result, would it create a
significant hazard to the public or the environment?
e) For a project located within an airport land use plan or,
where such a plan has not been adopted, within two miles of a
public airport or public use airport, would the project result in
a safety hazard for people residing or working in the project
area?
f) For a project within the vicinity of a private airstrip,
would the project result in a safety hazard for people residing
or working in the project area?
No Substantial
New More Change From
Significant Severe Previous
Impact Impacts Analysis
❑
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No Substantial
New More Change From
g) Impair implementation of or physically interfere with an
Significant Severe Previous
Impact Impacts Analysis
adopted emergency response plan or emergency evacuation
plan?
h) Expose people or structures to a significant risk of loss,
injury or death involving wildland fires, including where
wildlands are adjacent to urbanized areas or where residences
are intermixed with wildlands?
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VIII. HYDROLOGY AND WATER OUALITY: — Would
the project:
a) Violate any water quality standards or waste discharge
requirements?
b) Substantially deplete groundwater supplies or interfere
substantially with groundwater recharge such that there would
be a net deficit in aquifer volume or a lowering of the local
groundwater table level (e.g., the production rate of pre-
existing nearby wells would drop to a level which would not
support existing land uses or planned uses for which permits
have been granted)?
c) Substantially alter the existing drainage pattern of the site
or area, including through the alteration of the course of a
stream or river, in a manner which would result in substantial
erosion or siltation on- or off -site?
d) Substantially alter the existing drainage pattern of the site
or area, including through the alteration of the course of a
stream or river, or substantially increase the rate or amount of
surface runoff in a manner which would result in flooding on-
or off -site?
e) Create or contribute runoff water which would exceed the
capacity of existing or planned stormwater drainage systems
or provide substantial additional sources of polluted runoff?
C]
f) Otherwise substantially degrade water quality?
g) Place housing within a 100 -year flood hazard area as
mapped on a federal Flood Hazard Boundary or Flood
Insurance Rate Map or other flood hazard delineation map?
(J E
h) Place within a 100 -year flood hazard area structures
which would impede or redirect flood flows?
i) Expose people or structures to a significant risk of loss,
injury or death involving flooding as a result of the failure of a
levee or dam?
j) Inundation by seiche, tsunami, or mudflow?
M IX. LAND USE AND PLANNING — Would the project:
a) Physically divide an established community?
b) Conflict with any applicable land use plan, policy, or
regulation of an agency with jurisdiction over the project
(including, but not limited to the general plan, specific plan,
local coastal program, or zoning ordinance) adopted for the
purpose of avoiding or mitigating an environmental effect?
c) Conflict with any applicable habitat conservation plan or
natural community conservation plan?
X. MINERAL RESOURCES — Would the project:
a) Result in the loss of availability of a known mineral
resource that would be of value to the region and the residents
of the state?
b) Result in the loss of availability of a locally-important
mineral resource recovery site delineated on a local general
plan, specific plan or other land use plan?
XI. NOISE —
Would the project result in:
a) Exposure of persons to or generation of noise levels in
excess of standards established in the local general plan or
noise ordinance, or applicable standards of other agencies?
b) Exposure of persons to or generation of excessive
groundbome vibration or goundbome noise levels?
c) A substantial permanent increase in ambient noise levels
in the project vicinity above levels existing without the
project?
d) A substantial temporary or periodic increase in ambient
noise levels in the project vicinity above levels existing
without the project?
e) For a project located within an airport land use plan or,
where such a plan has not been adopted, within two miles of a
public airport or public use airport, would the project expose
people residing or working in the project area to excessive
noise levels?
f) For a project within the vicinity of a private airstrip,
would the project expose people residing or working in the
project area to excess noise levels?
XIL POPULATION AND HOUSING — Would the project:
a) Induce substantial population growth in an area, either
directly (for example, by proposing new homes and
businesses) or indirectly (for example, through extension of
roads or other infrastructure)?
b) Displace substantial numbers of existing housing,
necessitating the construction of replacement housing
elsewhere?
No Substantial
New More Change From
Signcant Severe Previous
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Impact Impacts Analysis Hall,
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X111. PUBLIC SERVICES
a) Would the project result in substantial adverse physical
impacts associated with the provision of new or physically
altered governmental facilities, need for new or physically
altered governmental facilities, the construction of which
could cause significant environmental impacts, in order to
maintain acceptable service ratios, response times or other
performance objectives for any of the public services:
Fire protection?
Police protection?
Schools?
Parks?
Other public facilities?
ON ME I
V) XIV. RECREATION —
a) Would the project increase the use of existing
neighborhood and regional parks or other recreational
facilities such that substantial physical deterioration of the
facility would occur or be accelerated?
b) Does the project include recreational facilities or require
the construction or expansion of recreational facilities which
might have an adverse physical effect on the environment?
XV. TRANSPORTATION/TRAFFIC — Would the project:
a) Cause an increase in traffic which is substantial in relation
to the existing traffic load and capacity of the street system
(i.e. result in a substantial increase in either the number of
vehicle trips, the volume to capacity ratio on roads, or
congestion at intersections)?
b) Exceed, either individually or cumulatively, a level of
service standard established by the county congestion
management agency for designated roads or highways?
c) Result in a change in air traffic patterns, including either
an increase in traffic levels or a change in location that results
in substantial safety risks?
MINN d) Substantially increase hazards due to a design feature (e.g.
F
sharp curves or dangerous intersections) or incompatible uses
(e.g., farm equipment)?
e) Result in inadequate emergency access?
0 Result in inadequate parking capacity?
❑
Z
No Substantial
❑
New
More
Change From
M."'M
Significant
Severe
Previous
C) Displace substantial numbers of people, necessitating the
Impact
Impacts
Analysis
construction of replacement housing elsewhere?
❑
1:1
N
X111. PUBLIC SERVICES
a) Would the project result in substantial adverse physical
impacts associated with the provision of new or physically
altered governmental facilities, need for new or physically
altered governmental facilities, the construction of which
could cause significant environmental impacts, in order to
maintain acceptable service ratios, response times or other
performance objectives for any of the public services:
Fire protection?
Police protection?
Schools?
Parks?
Other public facilities?
ON ME I
V) XIV. RECREATION —
a) Would the project increase the use of existing
neighborhood and regional parks or other recreational
facilities such that substantial physical deterioration of the
facility would occur or be accelerated?
b) Does the project include recreational facilities or require
the construction or expansion of recreational facilities which
might have an adverse physical effect on the environment?
XV. TRANSPORTATION/TRAFFIC — Would the project:
a) Cause an increase in traffic which is substantial in relation
to the existing traffic load and capacity of the street system
(i.e. result in a substantial increase in either the number of
vehicle trips, the volume to capacity ratio on roads, or
congestion at intersections)?
b) Exceed, either individually or cumulatively, a level of
service standard established by the county congestion
management agency for designated roads or highways?
c) Result in a change in air traffic patterns, including either
an increase in traffic levels or a change in location that results
in substantial safety risks?
MINN d) Substantially increase hazards due to a design feature (e.g.
F
sharp curves or dangerous intersections) or incompatible uses
(e.g., farm equipment)?
e) Result in inadequate emergency access?
0 Result in inadequate parking capacity?
❑
❑
Z
❑
❑
Z
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0
❑
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❑
Z
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Z
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F-1
0
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0
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0
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0
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0
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0
g) Conflict with adopted policies, plans, or programs
supporting alternative transportation (e.g., bus turnouts,
bicycle racks)?
XV1. UTILITIES AND SERVICE SYSTEMS —
Would the project:
a) Exceed wastewater treatment requirements of the
applicable Regional Water Quality Control Board?
b) Require or result in the construction of new water or
wastewater treatment facilities or expansion of existing
facilities, the construction of which could cause significant
environmental effects?
c) Require or result in the construction of new storm water
drainage facilities or expansion of existing facilities, the
construction of which could cause significant environmental
effects?
d) Have sufficient water supplies available to serve the
project from existing entitlements and resources, or are new or
expanded entitlements needed?
e) Result in a determination by the wastewater treatment
provider which serves or may serve the project that it has
adequate capacity to serve the project's projected demand in
addition to the provider's existing commitments?
f) Be served by a landfill with sufficient permitted capacity
to accommodate the project's solid waste disposal needs?
g) Comply with federal, state, and local statutes and
regulations related to solid waste?
XVIL MANDATORY FINDINGS OF SIGNIFICANCE
a) Does the project have the potential to degrade the quality
of the environment, substantially reduce the habitat of a fish or
wildlife species, cause a fish or wildlife population to drop
below self-sustaining levels, threaten to eliminate a plant or
animal community, reduce the number or restrict the range of
a rare or endangered plant or animal or eliminate important
examples of the major periods of California history or
prehistory?
b) Does the project have impacts that are individually
limited, but cumulatively considerable? ("Cumulatively
considerable" means that the incremental effects of a project
are considerable when viewed in connection with the effects
of past projects, the effects of other current projects, and the
effects of probable future projects)?
c) Does the project have environmental effects which will
cause substantial adverse effects on human beings, either
directly or indirectly?
No Substantial
New More Change From
Significant Severe Previous
Impact Impacts Analysis
F-1 ❑ 0
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EVALUATION OF ENVIRONMENTAL IMPACTS
DEVELOPMENT AGREEMENT (DA) 2012-002, CONCEPT PLAN (CP) 2012-003, DESIGN
REVIEW (DR) 2012-005, DENSITY TRANSFER, DENSITY BONUS, AND CONCESSIONS OR
Faimsi INCENTIVES AUTHORIZED UNDER TUSTIN CITY CODE SECTION 9123 RELATED TO THE
PROVISION OF AFFORDABLE HOUSING UNITS IN COMPLIANCE WITH CALIFORNIA
GOVERNMENT CODE SECTION 65915(1).
BACKGROUND
On January 16, 2001, the City of Tustin certified the Program Final Environmental Impact
Statement/Environmental Impact Report (FEIS/EIR) for the reuse and disposal of MCAS Tustin.
On April 3, 2006, the City Council adopted Resolution No. 06-43 approving an Addendum to the
FEIS/EIR. And, on December 6, 2004, the City Council adopted Resolution No. 04-76
approving a Supplement to the FEIS/EIR for the extension of Tustin Ranch Road between
Walnut Avenue and the future alignment of Valencia North Loop Road (collectively, "Prior
Environmental Review"). The FEIS/EIR along with its Addendum and Supplement is a program
EIR under the California Environmental Quality Act (CEQA). The FEIS/EIR, Addendum and
Supplement considered the potential environmental impacts associated with development on
the former Marine Corps Air Station, Tustin.
The FEIS/EIR, Addendum and Supplement analyzed the environmental consequences of the
Navy disposal and local community reuse of the MCAS Tustin site per the Reuse Plan and the
MCAS Tustin Specific Plan/Reuse Plan (referred to in this document as the Specific Plan). The
CEQA analysis also analyzed the environmental impacts of certain "Implementation Actions"
that the City of Tustin and City of Irvine must take to implement the MCAS Tustin Specific Plan.
The MCAS Tustin Specific Plan proposed and the FEIS/EIR analyzed a multi-year development
period for the planned urban reuse project (Tustin Legacy). When individual discretionary
activities within the Specific Plan are proposed, the lead agency is required to examine the
individual activities to determine if their effects were fully analyzed in the FEIS/EIR. The agency
can approve the activities as being within the scope of the project covered by the FEIS/EIR. If
the agency finds that pursuant to Sections 15162, 15163, 15164, and 15183 of the CEQA
Guidelines no new effects would occur, nor would a substantial increase in the severity of
previously identified significant effects occur, then no supplemental or subsequent EIR is
required.
The project site is 8.073 acres for multi-family development and 4.706 acres for park
development (12.779 acres gross) located within the MCAS Tustin Specific Plan boundaries
affecting only Disposition Package IA-North, which is an irregular parcel within Planning Area
15 of Neighborhood G. The project site is bounded by future Tustin Ranch Road on the east,
future Legacy Road on the north, future Park Avenue on the west, and a vacant parcel to the
south.
The proposed development of Tustin Legacy Disposition Package 1A-North is to construct 225
multi-family residential apartment homes ("Project"). The proposal requests City of Tustin
consideration of Development Agreement (DA) 2012-002, Concept Plan (CP) 2012-003, Design
Review (DR) 2012-005, Density Transfer, Density Bonus, and Concessions or Incentives
authorized under Tustin City Code Section 9123 related to the provision of 225 affordable
residential apartment housing units in compliance with California Government Code Section
65915(l).
The Project proposes to develop 225 multi-family residential apartment homes includes 105
affordable units (35 very low income, 20 low income and 50 moderate income), which qualifies
8826013
Evaluation of Environmental Impacts
DA 2012-002, CP 2012-003, DR 2012-005, Density Transfer, and Density Bonus
Page 2
the Project for a density bonus concessions or incentives authorized under Tustin City Code
Section 9123 related to the provision of affordable housing units in compliance with California
Government Code Section 65915(1). In addition, the Project applicant has partnered with The
Irvine Company, LLC, a developer approved by the City of Tustin to develop Disposition
Package 2A in Planning Area 13, and requested the transfer of 120 of the 157 affordable
housing units from Disposition Package 2A to Disposition Package 1A-North with 120 market
rate units requested to be transferred from Disposition Package 1A-North to Disposition
Package 2A. Should the Tustin City Council approve the transfer request, the proposed
development of Disposition Package 2A would include 37 moderate unit income units and 496
market rate units (for a total of 533 residential apartment units), and the proposed development
of Disposition Package 1A-North would include a total of 225 affordable residential apartment
units (88 very low income, 73 low income, and 64 moderate income). The final proposed
allocation of units is as follows:
PROPOSED ALLOCATION
1A -North
2A
Totals
--Very Low
88
0
88
Low
73
0
73
Moderate
64
37
101
Sub-Total
225
37
262
Market
0
496
496
Total
225
533
758
In accordance with the MCAS Tustin Specific Plan, Planning Area 15 allows Medium-High
Density Residential at 16-25 dwelling units per acre. The Project proposes a density of
approximately 17.6 dwelling units per acre. Due to the fact that the Site 2A/Site 1A-North
projects propose 262 of 758 total units as affordable rental units (35%), the combined projects
include (and qualify for) a request for density bonus, concessions or incentives authorized under
Tustin City Code Section 9123 related to the provision of affordable housing units in compliance
with California Government Code Section 65915(1).
An Environmental Analysis Checklist has been completed and it has been determined that the
Project is within the scope of the Prior Environmental Review and that pursuant to Public
Resources Code Section 21166 and Title 14 California Code of Regulations Sections 15162
and 15168(c), there are no substantial changes in the project requiring major revisions to the
Prior Environmental Review , substantial changes with respect to the circumstances under
which the project is being undertaken which will require major revisions to the Prior
Environmental Review, or any new information which was not known and could not have been
known at the time the Prior Environmental Review was certified showing that: (1) the project will
have any new significant effects; (2) significant effects previously examined will be substantially
more severe; (3) mitigation measures or alternatives previously determined to be infeasible will
now be feasible and would substantially reduce one or more significant effects of the project but
the City declined to adopt the mitigation measure or alternative; or (4) mitigation measures or
alternatives considerably different from those previously analyzed would substantially reduce
one or more significant effects on the environment, but the City declined to adopt the mitigation
measure or alternative. Accordingly, no new environmental document is required by CEQA.
Fell%
The following information provides background support for the conclusions identified in the
Environmental Analysis Checklist.
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I. AESTHETICS — Would the project:
a) Have a substantial adverse effect on a scenic vista?
0-1
b) Substantially damage scenic resources, including, but not limited to, trees,
rock outcroppings, and historic buildings within a state scenic highway?
c) Substantially degrade the existing visual character or quality of the site and its
surroundings?
d) Create a new source of substantial light or glare, which would adversely affect
day or nighttime views in the area?
The proposed development of Disposition Package IA-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The project is not located on a scenic highway nor will it affect a scenic vista. The project
would be consistent with the permitted uses identified within the MCAS Tustin Specific
Plan. The development of residential apartment units within Planning Area 15 were
considered within the FEIS/EIR and will have no negative aesthetic effect on the site when
mitigation measures identified in the FEIS/EIR are incorporated with approval of the
project. All exterior design is required to be in compliance with Section 2.17.3(A) — Urban
Design Guidelines for Residential Development of the MCAS Tustin Specific Plan, and the
Landscape Concept Section 2.17.2 as they relate to design of Tustin Ranch Road, Legacy
Road, Park, Park Avenue and primary street corners and project entries. The proposal
includes a design review and concept plan application, which requires that the Planning
Commission and City Council review and ensure the design of the project, if approved, is
found to be cohesive and in harmony with surrounding uses. All exterior lighting would be
designed to reduce glare, create a safe night environment, and avoid impacts to
surrounding properties in compliance with Section 2.17.3 (A) of the MCAS Tustin Specific
Plan and the City's Security Ordinance. The proposed project will result in no substantial
changes to the environmental impacts previously evaluated with the certified Program
FEIS/EIR, the Supplemental and Addendum.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to aesthetics. Specifically, there have not been: (1) changes to the Project that
require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the previous FEIS/EIR due to
the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or
alternatives that were not known and could not have been known when the FEIS/EIR,
the Supplemental or Addendum were certified as completed.
MEMO
Mitigation/Monitoring Required: No new impacts nor substantially more severe aesthetic
impacts would result from the adoption and implementation of the Project; therefore, no
new or revised mitigation measures are required for aesthetics and visual quality. No
refinements related to the Project are necessary to the FEIS/EIR mitigation measures
and no new mitigation measures are required. Mitigation measures were adopted by the
Tustin City Council in the FEIS/EIR, Addendum and Supplement; and applicable measures
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will be required to be complied with as conditions of entitlement approvals for future
development of the site.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of IVICAS Tustin (Page 3-84, 4-109
through 114) and Addendum (Page 5-3 through 5-8)
IVICAS Tustin Specific Plan/Reuse Plan (Pages 3-35 through 3-62, pages 3-
70 through 3-81, pages 3-82 through 3-88, and pages 3-104 through 3-137)
Tustin General Plan
II. AGRICULTURE RESOURCES: In determining whether impacts to agricultural
resources are significant environmental effects, lead agencies may refer to the
California Agricultural Land Evaluation and Site Assessment Model (1997)
prepared by the California Dept. of Conservation as an optional model to use in
assessing impacts on agriculture and farmland. Would the project:
a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide
Importance (Farmland), as shown on the maps prepared pursuant to the
Farmland Mapping and Monitoring Program of the California Resources
Agency, to non-agricultural use?
b) Conflict with existing zoning for agricultural use or a Williamson Act contract?
c) Involve other changes in the existing environment which, due to their location
or nature, could result in conversion of Farmland to non-agricultural use?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan. As
documented in the FEIS/EIR, the project site is part of IVICAS Tustin Specific Plan that
contained 702 acres of farmland. The FEIS/EIR concluded that there would be no viable
long-term mitigation to off-set the impact of converting farmland on MCAS Tustin to urban
uses.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to agricultural resources. Specifically, there have not been: (1) changes to the
Project that require major revisions of the previous FEIS/EIR due to the involvement of
new significant environmental effects or a substantial increase in the severity of
previously identified effects; (2) substantial changes with respect to the circumstances
under which the Project is undertaken that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigationlMonitofing Required. Specific mitigation measures have been adopted by the f
Tustin City Council in certifying the FEIS/EIR. However, the FEIS/EIR also concluded that
Reuse Plan related impacts to farmland were significant and impossible to fully mitigate. A
Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City
Council on January 16, 2001.
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F 171 Sources: Field Observations
011
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Page 3-37 to 3-54)
MCAS Tustin Specific Plan
Tustin General Plan
AIR QUALITY: Where available, the significance criteria established by the
applicable air quality management or air pollution control district may be relied
upon to make the following determinations. Would the project:
a) Conflict with or obstruct implementation of the applicable air quality plan?
b) Violate any air quality standard or contribute substantially to an existing or
projected air quality violation?
C) Result in a cumulatively considerable net increase of any criteria pollutant for
which the project region is non-attainment under an applicable federal or state
ambient air quality standard (including releasing emissions that exceed
quantitative thresholds for ozone precursors)?
d) Expose sensitive receptors to substantial pollutant concentrations?
e) Create objectionable odors affecting a substantial number of people?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan. As
documented in the FEIS/EIR, the project is part of a larger reuse project at Tustin Legacy
that was projected to result in air quality impacts that cannot be fully mitigated. A
Statement of Overriding Consideration for the FEIS/EIR was adopted by the Tustin City
Council on January 16, 2001. The site is presently not in use. The project applicant
proposes to construct 225 units on 12.779 acres (17.6 dwelling units per acre), which is
less that the allowable density of the site (16-25 dwelling units) as identified in the MCAS
Tustin Specific Plan. Therefore, no significant impact beyond what was analyzed in the
adopted FEIS/EIR is anticipated. The City must support density bonus requests,
concessions or incentives when projects provide affordable housing units in compliance
with California Government Code Section 65915(1), as authorized under Tustin City
Code Section 9123.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to air quality. Specifically, there have not been: (1) changes to the Project that
require major revisions of the previous FEIS/EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified
effects; (2) substantial changes with respect to the circumstances under which the Project
is undertaken that require major revisions of the previous FEIS/EIR due to the involvement
of new significant environmental effects or a substantial increase in the severity of
previously identified effects; or (3) the availability of new information of substantial
importance relating to significant effect or mitigation measures or alternatives that was not
ME known and could not have been known when the FEIS/EIR was certified as complete.
NONE_
01
MitigationlMonitoring Required: Specific mitigation measures have been adopted by the
Tustin City Council in certifying the FEIS/EIR. However, the FEIS/EIR also concluded that
Reuse Plan related operational air quality impacts were significant and impossible to fully
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mitigate. A Statement of Overriding Consideration for the FEIS/EIR was adopted by the
Tustin City Council on January 16, 2001.
Sources. Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-143
through153, 4-207 through 4-230 and pages 7-41 through 7-42)
MCAS Tustin Specific Plan (Pages 3-38 through 3-54)
Table 2, 1993 South Coast Air Quality Management District, CEQA Air
Quality Handbook
Tustin General Plan
IV. BIOLOGICAL RESOURCES: -Would the project:
a) Have a substantial adverse effect, either directly or through habitat
modifications, on any species identified as a candidate, sensitive, or special
status species in local or regional plans, policies, or regulations, or by the
California Department of Fish and Game or U.S. Fish and Wildlife Service?
b) Have a substantial adverse effect on any riparian habitat or other sensitive
natural community identified in local or regional plans, policies, regulations, or
by the California Department of Fish and Game or U.S. Fish and Wildlife
Service?
c) Have a substantial adverse effect on federally protected wetlands as defined
by Section 404 of the Clean Water Act (including, but not limited to, marsh,
vernal pool, coastal, etc.) through direct removal, filling, hydrological
interruption, or other means?
d) Interfere substantially with the movement of any native resident or migratory
fish or wildlife species or with established native resident or migratory wildlife
corridors, or impede the use of native wildlife nursery sites?
e) Conflict with any local policies or ordinances protecting biological resources,
such as a tree preservation policy or ordinance?
f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural
Community Conservation Plan, or other approved local, regional or state
habitat conservation plan?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The FEIS/EIR found that implementation of the Reuse Plan and MCAS Tustin Specific Plan
would not result in impacts to federally listed threatened or endangered plant or animal
species. The proposed project is within the scope of development considered with the
analysis of the FEISIEIR, the Supplemental and Addendum for MCAS Tustin. The
FEIS/EIR determined that implementation of the Reuse Plan and MCAS Tustin Specific
Plan (including the proposed project) could impact jurisdictional waters/wetlands and the
southwestern pond turtle or have an impact on jurisdictional waters/wetlands. The project
site has been surveyed, and turtles were captured and moved off the site to another
location as directed and overseen by the California Department of Fish and Game. Since
that time, all former Marine Corps base drainage channels in the area were removed and
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El ME graded by the former owner of the property with the required 401, 404 and 1601 permits
issued by Fish and Game, Army Corps of Engineers, and Regional Water Quality Control
1-1
Board. Consequently, the proposed project would not affect the southwestern pond turtle
or have an impact on jurisdictional waters or wetlands. No substantial change is expected
from the analysis previously completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to biological resources. Specifically, there have not been: (1) changes to the Project
that require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effect or mitigation measures or alternatives
that was not known and could not have been known when the FEIS/EIR was certified as
complete.
MifigationlMonitoring Required: No mitigation is required.
Sources. Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-75 through 3-
82, 4-103 through 4-108, and 7-26 through 7-27)
WEIR
MCAS Tustin Specific Plan (Pages 3-38 to 3-54).
Tustin General Plan
V. CULTURAL RESOURCES: - Would the project:
a) Cause a substantial adverse change in the significance of a historical resource
as defined in §16064.5?
b) Cause a substantial adverse change in the significance of an archaeological
resource pursuant to § 16064.5?
c) Directly or indirectly destroy a unique paleontological resource or site or
unique geologic feature?
d) Disturb any human remains, including those interred outside formal
cemeteries?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The former MCAS Tustin contained two National Register listed blimp hangars, and
several concrete or asphalt blimp landing pads that were considered historically or
culturally significant, pursuant to the federal Section 106 process conducted at the site.
A portion of the previously existing blimp pads are within the project site boundary that,
through the Section 106 process, were identified as part of a discontiguous Historic District.
The Navy, State Office of Historic Preservation (SHPO), and Advisory Council executed a
Memorandum of Agreement (attached as part of the EIS/EIR) with City of Tustin and
County of Orange as invited signatories that allowed for the destruction of the blimp pads,
The EIS/EIR noted that it may not be financially feasible to retain the blimp hangers and
there may be irreversible significant impacts. A Statement of Overriding Consideration for
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the FEIS/EIR was adopted by the Tustin City Council on January 16, 2001. Consistent with
the above referenced agreement, the previous owner of the property removed the blimp
pad from the project site and leveled the property.
Numerous archaeological surveys have been conducted at the former MCAS Tustin site.
In 1988, the State Office of Historic Preservation (SHPO) provided written concurrence that
all open spaces on MCAS Tustin had been adequately surveyed for archaeological
resources. Although one archaeological site (CA-ORA-381) has been recorded within the
Reuse Plan area, it is believed to have been destroyed. It is possible that previously
unidentified buried archaeological or paleontological resources within the project site could
be significantly impacted by grading and construction activities. With the inclusion of
mitigation measures that require construction monitoring, potential impacts to cultural
resources can be reduced to a level of insignificance. No substantial change is expected
from the analysis previously completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to cultural resources. Specifically, there have not been: (1) changes to the Project
that require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effect or mitigation measures or alternatives
that was not known and could not have been known when the FEIS/EIR was certified as
complete.
Mitigation/Monitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-68 through 3-
74, 4-93 through 4-102 and 7-24 through 7-26)
MCAS Tustin Specific Plan (Pages 3-38 to 3-54).
Tustin General Plan
VI. GEOLOGY AND SOILS: — Would the project:
a) Expose people or structures to potential substantial adverse effects, including
the risk of loss, injury, or death involving:
• Rupture of a known earthquake fault, as delineated on the most recent
Alquist-Priolo Earthquake Fault Zoning map, issued by the State Geologist
for the area or based on other substantial evidence of a known fault? Refer
to Division of Mines and Geology Special Publication 42.
• Strong seismic ground shaking? NOR
• Seismic-related ground failure, including liquefaction?
• Landslides?
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b) Result in substantial soil erosion or the loss of topsoil?
Be located on a geologic unit or soil that is unstable, or that would become
unstable as a result of the project, and potentially result in on- or off-site
landslide, lateral spreading, subsidence, liquefaction or collapse?
d) Be located on expansive soil, as defined in Table 18-1-B of the Uniform
Building Code (1994), creating substantial risks to life or property?
e) Have soils incapable of adequately supporting the use of septic tanks or
alternative wastewater disposal systems where sewers are not available for the
disposal of wastewater?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan,
The FEIS/EIR indicates that impacts to soils and geology resulting from implementation of
the Reuse Plan and MCAS Tustin Specific Plan would "include non-seismic hazards (such
as local settlement, regional subsidence, expansive soils, slope instability, erosion, and
mudflows) and seismic hazards (such as surface fault displacement, high-intensity ground
shaking, ground failure and lurching, seismically induced settlement, and flooding
associated with dam failure." However, the FEIS/EIR for MCAS Tustin also concluded that
compliance with state and local regulations and standards, along with established
engineering procedures and techniques, would avoid unacceptable risk or the creation of
significant impacts related to such hazards. No substantial change is expected for
development of the project from the analysis previously completed in the FEIS/EIR for
MCAS Tustin,
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to geology and soils. Specifically, there have not been: (1) changes to the Project
that require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the previous FEIS/EIR due to
the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or
alternatives that were not known and could not have been known when the FEIS/EIR,
the Supplemental or Addendum were certified as completed.
Mitigation /Monitoring Required: As identified in the FEIS/EIR, compliance with existing rules
and regulations would avoid the creation of potential impacts. No mitigation is required.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of WAS Tustin (Pages 3-88 through 3-
97, 4-115 through 4-123 and 7-28 through 7-29)
MCAS Tustin Specific Plan (Pages 3-38 to 3-54).
Tustin General Plan
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VII. HAZARDS AND HAZARDOUS MATERIALS: — Would the project:
a) Create a significant hazard to the public or the environment through the
routine transport, use or disposal of hazardous materials?
b) Create a significant hazard to the public or the environment through
reasonable foreseeable upset and accident conditions involving the release of
hazardous materials into the environment?
c) Emit hazardous emissions or handle hazardous or acutely hazardous
materials, substances, or waste within one-quarter mile of an existing or
proposed school?
d) Be located on a site which is included on a list of hazardous materials sites
compiled pursuant to Government code Section 66962.5 and, as a result,
would it create a significant hazard to the public or the environment?
e) For a project located within an airport land use plan or, where such a plan has
not been adopted, within two miles or a public airport or public use airport,
would the project result in a safety hazard for people residing or working in the
project area?
f) For a project within the vicinity of a private airstrip, would the project result in
a safety hazard for people residing or working in the project area?
O
ONE=
MEN
g) Impair implementation of or physically interfere with an adopted emergency
response plan or emergency evacuation plan?
h) Expose people or structures to a significant risk of loss, injury or death
involving wildland fires, including where wildlands are adjacent to urbanized
areas or where residences are intermixed with wildlands?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The project will not create a significant hazard to the public through the transport, use, or
disposal of hazardous materials, nor are there reasonably foreseeable upset and accident
conditions at the property. In addition, construction and residential uses would not emit
hazardous emissions within a quarter mile of an existing or proposed school, The Navy
conveyed the property in 2002 as unrestricted and suitable for residential reuse.
In addition, the project site is located within the boundaries of the Airport Environs Land
Use Plan; however, it is at least four (4) miles from John Wayne Airport, and does not lie
within a flight approach or departure corridor and thus does not pose an aircraft-related
safety hazard for future residents or workers. The project site is also not located in a
wildland fire danger area. Compliance with all federal, state and local regulations
concerning handling and use of household hazardous substances will reduce potential
impacts to below a level of significance. No substantial change is expected from the
analysis previously completed in the FEIS/EIR for IVICAS Tustin,
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
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rill
regard to hazards and hazardous materials. Specifically, there have not been: (1)
changes to the Project that require major revisions of the previous FEIS /EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
previous FEIS /EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS /EIR, the Supplemental or Addendum were certified as completed.
MitigatidrVMonitohng Required: As identified in the FEIS /EIR, compliance with existing rules
and regulations would avoid the creation of potential impacts. No mitigation is required.
Sources: Field Observation
FEIS /EIR for Disposal and Reuse of MCAS Tustin pages (3 -106 through 3-
117, 4 -130 through 4 -138 and 7 -30 through 7 -31)
MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54)
Finding of Suitability to Transfer (FOST), MCAS Tustin
Tustin General Plan.
Vill. HYDROLOGY AND WATER QUALITY: - Would the project:
a) Violate any water quality standards or waste discharge requirements?
b) Substantially deplete groundwater supplies or interfere substantially with
groundwater recharge, such that there would be a net deficit in aquifer volume
or a lowering of the local groundwater table level (e.g., the production rate of
pre - existing nearby wells would drop to a level which would not support
existing land uses or planned uses for which permits have been granted)?
c) Substantially alter the existing drainage pattern of the site or area, including
through the alteration of the course of a stream or river, in a manner which
would result in flooding on- or off -site?
d) Substantially alter the existing drainage pattern of the site or area, including
through the alteration of the course of a stream or river, or substantially
increase the rate or amount of surface runoff in a manner, which would result
in flooding on- or off -site?
e) Create or contribute runoff water which would exceed the capacity of existing
or planned storm water drainage systems or provide substantial additional
sources of polluted runoff?
f) Otherwise substantially degrade water quality?
g) Place housing within a 100 -year flood hazard area as mapped on a federal
Flood hazard Boundary of Flood Insurance Rate Map or other flood hazard
delineation map?
h) Place within a 140 -year flood hazard area structures, which would impede or
redirect flood flows?
1) Expose people or structures to a significant risk of loss, injury or death
involving flooding, including flooding as a result of the failure of a levee or
dam?
j) Inundation by seiche, tsunami, or mudflow?
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I
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The project design and construction of facilities to fully contain drainage of the site would be
required as conditions of approval of the project and submitted/approved Water Quality
Management Plan. No long-term impacts to hydrology and water quality are anticipated for
the proposed project. The proposed housing project will also not impact groundwater in the
deep regional aquifer or shallow aquifer. The proposed project would not include
groundwater removal or alteration of historic drainage patterns at the site. The project is
not located within a 100-year flood area and will not expose people or structures to a
significant risk of loss, injury and death involving flooding as a result of the failure of a levee
or dam, nor is the proposed project susceptible to inundation by seiche, tsunami, or
mudflow.
Construction operations would be required to comply with the Total Maximum Daily Load
(TMDQ for the Newport Bay watershed that requires compliance with the Drainage Area
Master Plan (DAMP) and National Pollution Discharge Elimination System (NPDES) and
the implementation of specific best management practices (BMP). Compliance with state
and local regulations and standards, along with established engineering procedures and
techniques, would avoid unacceptable risk or the creation of significant impacts related to
such hazards. Consequently, no substantial change is expected from the analysis
previously completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other NOME
environmental document to evaluate Project impacts or mitigation measures exist with
regard to hydrology and water quality. Specifically, there have not been: (1) changes to
the Project that require major revisions of the previous FEIS/EIR due to the involvement
of new significant environmental effects or a substantial increase in the severity of
previously identified effects; (2) substantial changes with respect to the circumstances
under which the Project is undertaken that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
Mitigation/Monitoring Required: As identified in the FEIS/EIR, compliance with existing
rules and regulations would avoid the creation of potential impacts. No mitigation is
required.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-98 through 3-
105, 4-124 through 4-129 and 7-29 through 7-30)
MCAS Tustin Specific Plan (Pages 3-38 through 3-54)
FEMA Flood Map (2009)
Tustin General Plan
Fire Hazard Severity Zone Map (2011)
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IX. LAND USE AND PLANNING: Would the project:
a) Physically divide an established community?
b) Conflict with any applicable land use plan, policy, or regulation of an agency
with jurisdiction over the project (including, but not limited, to the general
plan, specific plan, local coastal program, or zoning ordinance) adopted for the
purpose of avoiding or mitigating an environmental effect?
C) Conflict with any applicable habitat conservation plan or natural community
conservation plan?
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to land use and planning. Specifically, there have not been: (1) changes to the
Project that require major revisions of the previous FEIS/EIR due to the involvement of
new significant environmental effects or a substantial increase in the severity of
previously identified effects; (2) substantial changes with respect to the circumstances
under which the Project is undertaken that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental, effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigatiOnIMOnitoring Required: The proposed project is consistent with the development
ME E standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS/EIR, No
RE
NINE mitigation is required.
I
El
882601.1
The proposed development of Disposition Package 1A-North would include a total of
225 affordable Medium-High Density residential apartment units (88 very low income, 73
low income, and 64 moderate income). The proposed use is consistent with the
approved Specific Plan, and the number of dwelling units proposed by the Project is
under the maximum development threshold for Planning Area 15, which contemplates
the development of 1214 dwelling units in total. The City of Tustin is the controlling
authority over implementation of the Reuse Plan for the former base, such as land use
designations, zoning categories, recreation and open space areas, major arterial roadways,
urban design, public facilities, and infrastructure systems. On February 3, 2003, the Tustin
City Council approved the Specific Plan for MCAS Tustin that
established land use and
development standards for development of the site. The proposed project complies with
Planning Area 15's development standards for multiple family residential units as noted in
MEN-
Sections 3.9.2.6 of the MCAS Tustin Specific Plan. The City must support density bonus
11, ONE
requests, concessions or incentives when projects provide affordable housing units in
IN
compliance with California Government Code Section 65915(1), as authorized under
Tustin City Code Section 9123. Compliance with state and local regulations and
standards would avoid the creation of significant land use and planning impacts. Also, the
proposed project will not conflict with any habitat conservation plan or natural community
conservation plan. Consequently, no change is expected from the analysis previously
completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to land use and planning. Specifically, there have not been: (1) changes to the
Project that require major revisions of the previous FEIS/EIR due to the involvement of
new significant environmental effects or a substantial increase in the severity of
previously identified effects; (2) substantial changes with respect to the circumstances
under which the Project is undertaken that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental, effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigatiOnIMOnitoring Required: The proposed project is consistent with the development
ME E standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS/EIR, No
RE
NINE mitigation is required.
I
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Sources. Field Observation
FEIS/EIR for Disposal and Reuse of IVICAS Tustin (Pages 3-3 to 3-17, 4-3
to 4-13 and 7-16 to 7-18)
IVICAS Tustin Specific Plan (Pages 3-38 through 3-54).
Tustin General Plan
X MINERAL RESOURCES: Would the project:
a) Result in the loss of availability of a known mineral resource that would be a
value to the region and the residents of the state?
b) Result in the loss of availability of a locally important mineral resource
recovery site delineated on a local general plan, specific plan or other land use
plan?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
Chapter 3.9 of the FEIS/EIR indicates that no mineral resources are known to occur
anywhere within the Reuse Plan area. The proposed project will not result in the loss of
mineral resources known to be on the site or identified as being present on the site by any
mineral resource plans. Consequently, no substantial change is expected from the
analysis previously completed in the FEIS/EIR for IVICAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
IN
environmental document to evaluate Project impacts or mitigation measures exist with
regard to mineral resources. Specifically, there have not been: (1) changes to the Project
that require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; (2) substantial changes with respect to the circumstances under which
the Project is undertaken that require major revisions of the previous FEIS/EIR due to
the involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or
alternatives that were not known and could not have been known when the FEIS/EIR,
the Supplemental or Addendum were certified as completed.
MitigatidrVMonitoring Required: No mitigation is required.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of IVICAS Tustin (Page 3-91)
IVICAS Tustin Specific Plan (Pages 3-38 through 3-54).
Tustin General Plan
XI. NOISE: Would the project:
a) Exposure of persons to or generation of noise levels in excess of standards
established in the local general plan or noise ordinance, or applicable
standards of other agencies?
Is --
b) Exposure of persons to or generation of excessive ground borne vibration or
ground borne noise levels?
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c) A substantial permanent increase in ambient noise levels in the project vicinity
above levels existing without the project?
d) A substantial temporary or periodic increase in ambient noise levels in the
project vicinity above levels existing without the project?
e) For a project located within an airport land use plan or, where such a plan has
not been adopted, within two miles of a public airport or public use airport,
would the project expose people residing or working in the project area to
excessive noise levels?
f) For a project within the vicinity of a private airstrip, would the project expose
people residing or working in the project area to excessive noise levels?
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to noise. Specifically, there have not been: (1) changes to the Project that require
major revisions of the previous FEIS/EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified
effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or
alternatives that were not known and could not have been known when the FEIS/EIR,
the Supplemental or Addendum were certified as completed.
Mitigation/Monitoring Required.* Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
882601,1
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The proposed project could result in implementation activities that generate noise. The
FEIS/EIR indicates that full build-out of the base will create noise impacts that would be
considered significant if noise levels experienced by sensitive receptors would exceed
those considered "normally acceptable" for the applicable land use categories in the Noise
Elements of the Tustin General Plan. The applicant has submitted a Noise Impact Study
for the project that indicates that additional mitigation will not be required (Source: see
Exhibit 1). However, the City of Tustin will ensure that construction activities comply with
the City's Noise Ordinance and that the proposed multi-family housing units are designed
with adequate noise attenuation (i.e., window design, sound walls) to meet the allowable
MEMO
noise levels as required by Tustin City Code for residential use. The project would be
sound attenuated against present and projected noise so as not to exceed an exterior noise
standard of 65 dB CNEL in outdoor living areas and an interior standard of 45 dB CNEL in
all habitable rooms to reduce noise-related impacts to a level of insignificance. Compliance
with adopted mitigation measures and state and local regulations and standards, along with
established engineering procedures and techniques, will avoid unacceptable risk or the
creation of significant impacts related to such hazards.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to noise. Specifically, there have not been: (1) changes to the Project that require
major revisions of the previous FEIS/EIR due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously identified
effects; (2) substantial changes with respect to the circumstances under which the
Project is undertaken that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; or (3) the availability of new information of
substantial importance relating to significant effects or mitigation measures or
alternatives that were not known and could not have been known when the FEIS/EIR,
the Supplemental or Addendum were certified as completed.
Mitigation/Monitoring Required.* Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
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Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-154 to 3-162,
4-231 to 4-243 and 7-42 to 7-43)
MCAS Tustin Specific Plan (Pages 3-38 through 3-54),
Tustin General Plan
X11. POPULATION & HOUSING: Would the project:
a) Induce substantial population growth in an area, either directly (for example,
by proposing new homes and businesses) or indirectly (for example, through
extension of roads or other infrastructure)?
b) Displace substantial numbers of existing housing, necessitating the
construction of replacement housing elsewhere?
c) Displace substantial numbers of people, necessitating the construction of
replacement housing elsewhere?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan, and
the number of dwelling units proposed by the Project is under the maximum
development threshold for Planning Area 15, which contemplates the development of
1214 dwelling units in total. The City must support density bonus requests, concessions
or incentives when projects provide affordable housing units in compliance with
California Government Code Section 65915(1), as authorized under Tustin City Code
Section 9123. Additionally, the proposed project site is vacant and will not displace people
or necessitate construction of replacement housing elsewhere. No substantial change is
expected from the analysis previously completed in the FEIS/EIR for MCAS Tustin.
Based on the foregoing, none of the conditions identified in CEQA Guidelines Section
15162 that would trigger the need to prepare a subsequent or supplemental EIR or other
environmental document to evaluate Project impacts or mitigation measures exist with
regard to population and housing. Specifically, there have not been: (1) changes to the
Project that require major revisions of the previous FEIS/EIR due to the involvement of
new significant environmental effects or a substantial increase in the severity of
previously identified effects; (2) substantial changes with respect to the circumstances
under which the Project is undertaken that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MifigatiOnlMonitoring Required: No mitigation is required.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-18 to 3-34, 4-
14 to 4-29 and 7-18 to 7-19)
MCAS Tustin Specific Plan (Pages 3-38 through 3-54). ISO
Tustin General Plan
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XIII. PUBLIC SERVICES
a) Would the project result in substantial adverse physical impacts associated
with the provision of new or physically altered governmental facilities, need for
new or physically altered governmental facilities, the construction of which
could cause significant environmental impacts, in order to maintain acceptable
service ratios, response times, or other performance objectives for any of the
public services:
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The site is currently vacant. Development of the site would require public services such as
fire and police protection services, schools, libraries, recreation facilities, and biking/hiking
trails,
Fire Protection. The proposed project will be required to meet existing Orange County
Fire Authority (OCFA) regulations regarding demolition, construction materials and
methods, emergency access, water mains, fire flow, fire hydrants, sprinkler systems,
building setbacks, and other relevant regulations. Adherence to these regulations would
reduce the risk of uncontrollable fire and increase the ability to efficiently provide fire
protection services to the site. The number of fire stations existing and planned in the
area surrounding the site will meet the demands created by the proposed project.
Police Protection. The need for police protection services is assessed on the basis of
resident population estimates, square footage of non-residential uses, etc. Development of
the site would increase the need for police protection services. The developer as a
condition of approval for the project would be required to work with the Tustin Police
Department to ensure that adequate security precautions such as visibility, lighting,
emergency access, address signage are implemented in the project at plan check.
Schools. The proposed project is located within Tustin Unified School District (TUSD).
The implementation of the Reuse Plan would provide two 10-acre sites for elementary
schools and a 40-acre high school site to serve the growing student population within its
district. Based on the student generation factors of 0.29 per unit for grades K-5; 0.127
student per units for grades 6-8; 0.153 student per unit for grades 9-12, and the potential
of 2,585 dwelling units developed within the TUSD boundaries, the adopted EIS/EIR
noted that reuse development would generate approximately 750 students for grades K-
5, 328 students for grades 6-8, and 395 students for grades 9-12 for a total of 1,473
students.
The total number of units approved in the Specific Plan for Neighborhood G is 2,383
units; the total number of units approved in the Specific Plan for Planning Area 15 is
1214 The applicant is requesting approval of 225 units (representing 9% of the total
number of units allowed in Neighborhood G, and 18% of the total units allowed in
Planning Area 15). No other residential units have been previously built in Planning
Area 15. The TUSD will receive its statutory school impact fees per Senate Bill 50 from
the proposed residential development of the site. As a condition of approval for the
project, the developer will be required to pay applicable school fees prior to issuance of
the building permit. In summary, no new additional students are anticipated beyond
what was considered in the FEIR/EIS for the Disposal and Reuse of MCAS, Tustin, and
in any event, City required mitigation is limited by State law to requiring payment of the
SB 50 school impact fees.
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Other Public Facilities (Libraries). Implementation of the entire Reuse Plan would only
result in a library demand of up to approximately 2,500 square feet of library space. This
relatively small amount of space is well below the library system's general minimum size of
10,000 square feet for a branch library and would not trigger the need for a new facility.
General Implementation Requirements:, To support development in the reuse plan area, the
Reuse Plan/Specific Plan requires public services and facilities to be provided concurrent
with demand. The proposed project will be required to comply with FEIS/EIR
implementation measures adopted by the Tustin City Council.
No substantial change is expected from the analysis previously completed in the approved
FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in
CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or
supplemental EIR or other environmental document to evaluate Project impacts or
mitigation measures exist with regard to public services. Specifically, there have not
been: (1) changes to the Project that require major revisions of the previous FEIS/EIR
due to the involvement of new significant environmental effects or a substantial increase
in the severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
previous FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigationlMonitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-47 to 3-57, 4-
56 to 4-80 and 7-21 to 7-22)
MCAS Tustin Specific Plan (Pages 3-38 through 3-54).
Tustin General Plan
XIV. RECREATION
a) Would the project increase the use of existing neighborhood and regional
parks or other recreational facilities, such that substantial physical
deterioration of the facility would occur or be accelerated?
b) Does the project include recreational facilities or require the construction or
expansion of recreational facilities, which might have an adverse physical
effect on the environment?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan.
The project includes improvement of an adjacent, 4.706 acre neighborhood park that will be
available to the public.
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Since the Reuse Plan process included public conveyance of city parks and an Urban
Regional Park, individual developers were relieved of the requirement to dedicate land for
park purposes. However, pursuant to the MCAS Tustin Specific Plan, the developers are
required to provide in-lieu fees or public accessible park space (where approved by the
City). Projects that do not propose the subdivision of property are exempt from the
provisions of the Quimby Act. In addition, the Disposition and Development Agreement
between the City and the developer will require that the private developer will improve the
adjacent park site.
No substantial change is expected from the analysis previously completed in the approved
FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in
CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or
supplemental EIR or other environmental document to evaluate Project impacts or
mitigation measures exist with regard to recreation. Specifically, there have not been: (1)
changes to the Project that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
previous FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigationlMonitoting Required: Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin pages 3-47 to 3-57, 4-56
to 4-80 and 7-21 to 7-22
Reuse Plan and MCAS Tustin Specific Plan (Pages 3-38 through 3-54)
Tustin Parks and Recreation Services Department
Tustin General Plan
XV. TRANSPORTATION/TRAFFIC: Would the project:
a) Cause an increase in traffic, which is substantial in relation to the existing
traffic load and capacity of the street system (i.e., result in a substantial
increase in either the number of vehicle trips, the volume to capacity ratio on
roads, or congestion at intersections)?
b) Exceed, either individually or cumulatively, a level of service standard
established by the county congestion management agency for designated
roads or highways?
c) Result in a change in air traffic patterns, including either an increase in traffic
levels or a change in location that result in substantial safety risks?
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d) Substantially increase hazards due to a design feature (e.g., sharp curves or
dangerous intersections) or incompatible uses (e.g., farm equipment)?
e) Result in inadequate emergency access?
f) Result in inadequate parking capacity?
g) Conflict with adopted policies, plans, or programs supporting alternative
transportation (e.g., bus turnouts, bicycle racks)?
The proposed development of Disposition Package IA-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan, and
the number of dwelling units proposed by the Project is under the maximum
development threshold for Planning Area 15, which contemplates the development of
1214 dwelling units in total. The FEIS/EIR indicates that transportation and circulation
impacts would be created through the phased development of the approved Reuse Plan
and MCAS Tustin Specific Plan. A projected 216,445 Average Daily Trips (ADT) would
be generated by full redevelopment of the base by year 2020 that, if left unmitigated,
would overburden existing roadways and intersections surrounding the base property.
The FEIS/EIR indicates that traffic circulation activities at MCAS Tustin generated a
baseline of 12,400 ADT when the base was fully operational (1993). As a military facility,
the FEIS/EIR considered the traffic impact and developed a mitigation program to reduce
potential impacts to a level of insignificance. This site will be conditioned to participate in its
fair share responsibility for both on-site and off-site circulation mitigation and
implementation measures. In addition, construction activities are required to be meet all
Transportation related FEIS/EIR Implementation and Mitigation Measures (e.g., lane
closures, street/utility construction, construction vehicle traffic, etc.). The FEIS/EIR
implementation and mitigation measures will reduce potential impacts to the traffic and
circulation system to a level of insignificance. In addition, certain public infrastructure is
required to be constructed by the developer as a requirement of the DDA. Also, a parking
assessment and gate design analysis was submitted by the applicant which indicates that
the project will not adversely impact parking and circulation within or outside the project
area (See Exhibit 2). Consequently, no substantial change is expected from the analysis
previously completed in the approved FEIS/EIR for MCAS Tustin.
No substantial change is expected from the analysis previously completed in the approved
FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in
CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or
supplemental EIR or other environmental document to evaluate Project impacts or
mitigation measures exist with regard to traffic. Specifically, there have not been: (1)
changes to the Project that require major revisions of the previous FEIS/EIR due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified effects; (2) substantial changes with respect to the
circumstances under which the Project is undertaken that require major revisions of the
previous FEIS/EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified effects; or (3) the availability
of new information of substantial importance relating to significant effects or mitigation
measures or alternatives that were not known and could not have been known when the MINOR'.
FEIS/EIR, the Supplemental or Addendum were certified as completed.
MitigatiorVMonitoringr Required.* Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
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Sources: Field Observation
FEIS/EIR for Disposal and Reuse of MCAS Tustin (Pages 3-118 through 3-
142, 4-139 through 4-206 and 7-32 through 7-41)
Reuse Plan and MCAS Tustin Specific Plan (Pages 3-38 through 3-54).
Tustin General Plan
XVI. UTILITIES AND SERVICE SYSTEMS: Would the project:
a) Exceed wastewater treatment requirements of the applicable Regional Water
Quality Control Board?
b) Require or result in the construction of new water or wastewater treatment
facilities or expansion of existing facilities, the construction of which could
cause significant environmental effects?
c) Require or result in the construction of new storm water drainage facilities or
expansion of existing facilities, the construction of which could cause
significant environmental effects?
d) Have sufficient water supplies available to serve the project from existing
entitlements and resources, or are new or expanded entitlements needed?
e) Result in a determination by the wastewater treatment provider, which serves
or may serve the project that it has adequate capacity to serve the project's
projected demand in addition to the provider's existing commitments?
f) Be served by a landfill with sufficient permitted capacity to accommodate the
project's solid waste disposal needs?
g) Comply with federal, state, and local statutes and regulations related to solid
waste?
The proposed development of Disposition Package 1A-North would include a total of
225 affordable residential apartment units (88 very low income, 73 low income, and 64
moderate income). The proposed use is consistent with the approved Specific Plan,
The FEIR/EIR analyzed medium-high residential development on the proposed site,
which is consistent with the proposed project. Development of the site would require on-
site improvements and off-site infrastructure improvements to utilities and roadway
systems, including design and construction of full width improvements on Tustin Ranch
Road, Legacy Road and Park Avenue. In addition, certain public infrastructure will be
constructed by the applicant which may include storm drain, domestic water, reclaimed
water, sanitary sewer, and dry utility service systems necessary to serve the site, and
landscape and irrigation on in the public right-of-way. In addition, development of the
site is required to meet federal, state, and local standards for design of wastewater
treatment. The number of proposed units can be supported by the Irvine Ranch Water
District for domestic water and sewer services.
No substantial change is expected from the analysis previously completed in the approved
FEIS/EIR for MCAS Tustin. Based on the foregoing, none of the conditions identified in
CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or
supplemental EIR or other environmental document to evaluate Project impacts or
mitigation measures exist with regard to utilities and service systems. Specifically, there
have not been: (1) changes to the Project that require major revisions of the previous
FEIS/EIR due to the involvement of new significant environmental effects or a
882601.1
Evaluation • Environmental Impacts
DA 2012-002, CP 2012-003, DR 2012-005, Density Transfer, and Density Bonus
7'age 22
substantial increase in the severity of previously identified effects; (2) substantial
0-
changes with respect to the circumstances under which the Project is undertaken that
require major revisions of the previous FEIS/EIR due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified effects; or (3) the availability of new information of substantial importance
relating to significant effects or mitigation measures or alternatives that were not known
and could not have been known when the FEIS/EIR, the Supplemental or Addendum
were certified as completed.
MitigratidWonitoring Required: Mitigation measures have been adopted by the Tustin City
Council in the FEIS/EIR; these measures would be included as conditions of approval for
the project.
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (pages 3-35 through 3-
46, 4-32 through 455 and 7-20 through 7-21)
Reuse Plan and MCAS Tustin Specific Plan (Pages 3-38 through 3-54).
Tustin General Plan
XVIL MANDATORY FINDINGS OF SIGNIFICANCE
a) Does the project have the potential to degrade the quality of the environment,
substantially reduce the habitat of a fish or wildlife species, cause a fish or
wildlife population to drop below self-sustaining levels, threaten to eliminate a wf
plant or animal community, reduce the number or restrict the range of a rare or
endangered plant or animal or eliminate important examples of the major
periods of California history or prehistory?
b) Does the project have impacts that are individually limited but cumulatively
considerable? ("Cumulatively considerable" means that the incremental
effects of a project are considerable when viewed in connection with the
effects of past projects, the effects of other current projects, and the effects of
probable future projects.)
c) Does the project have environmental effects, which will cause substantial
adverse effects on human beings, either directly or indirectly?
Based upon the foregoing, the proposed project does not have the potential to degrade the
quality of the environment, substantially reduce the habitats or wildlife populations to
decrease or threaten, eliminate, or reduce animal ranges, etc. With the enforcement of
FEIS/EIR mitigation and implementation measures approved by the Tustin City Council, the
proposed project does not cause unmitigated environmental effects that will cause
substantial effects on human beings, either directly or indirectly. In addition, the proposed
project does have air quality impacts that are individually limited, but cumulatively
considerable when viewed in connection with the effects of the reuse and redevelopment of
the former MCAS Tustin. The FEIS/EIR, the Supplemental and Addendum previously
considered all environmental impacts associated with the implementation of the Reuse
Plan and MCAS Tustin Specific Plan. The project proposes no substantial changes to
environmental issues previously considered with adoption of the FEIS/EIR. Mitigation
measures were identified in the FEIS/EIR to reduce impact but not to a level of
insignificance. A Statement of Overriding Consideration for the FEIS/EIR was adopted by
the Tustin City Council on January 16, 2001.
11.001W
Evaluation of Environmental Impacts
DA 2012-002, CP 2012-003, DR 2012-005, Density Transfer, and Density Bonus
Page 23
Mitigation /Monitoring Required: The FEIS/EIR previously considered all environmental
M ORION impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific
E
Plan. Mitigation measures have been adopted by the Tustin City Council in the FEIS/EIR
and would be included in the project as applicable.
WIN
rwry
Sources: Field Observations
FEIS/EIR for Disposal and Reuse of MCAS Tustin (pages 5-4 through 5-11)
Reuse Plan and MCAS Tustin Specific Plan (Pages 3-144 through 3-154).
Tustin General Plan
CONCLUSION
The summary concludes that all of the proposed project's effects were previously examined in the
FEIS/EIR for MCAS Tustin, that no new effects would occur, that no substantial increase in the
severity of previously identified significant effects would occur, that no new mitigation measures
would be required, that no applicable mitigation measures previously not found to be feasible
would in fact be feasible, and that there are no new mitigation measures or alternatives applicable
to the project that would substantially reduce effects of the project that have not been considered
and adopted. A Mitigation and Monitoring and Reporting Program and Findings of Overriding
Considerations were adopted for the FEIS/EIR on January 16, 2001 and shall apply to the
proposed project, as applicable.
882601.1
Exhibit 1
em
ry
��v w
Ow
TUSTIN LEGACY APARTMENTS IN
TUSTIN AND RECOMMENDATIONS TO
MEET NOISE LIMITS OF CITY OF TUSTIN
M Prepared for
St. Anton Partners, LLC
1801 1 Street, Suite 200
Sacramento, CA 95811
August 28, 2012
R12135
TABLE OF CONTENTS AMR
he
�P
U
1.0 SUMMARY .................................. ...............................
2.0 ACOUSTIC STANDARDS ..................... ............................... 2
2.1 Noise Element Standards ................... ............................... 2
2.2 Noise Control Ordinance ................... ............................... 3
3.0 PROJECT DESCRIPTION & SITE ............... ............................... 4
4.0 SOUND SOURCES ............................ ............................... 5
4.1 Existing ................................ ............................... 5
4.2 Existing + Project ............................. I ................. ........ 6
4.3 Cumulative + Project ...................... ............................... 6
5.0 EXTERIOR ACOUSTIC ENVIRONMENT ........ ............................... 7
5.1 Existing ................................ ............................... 7
5.2 Existing + Project ........................ ............................... 8
5.3 Cumulative + Project ...................... ............................... 9
6.0 INTERIOR ACOUSTIC ENVIRONMENT ........ ............................... 10
7.0 ACOUSTIC IMPACT ......................... ............................... I 1
7.1 Exterior Impact ......................... ............................... lI
RIMS
7.2 Interior Impact .......................... ............................... I MEMO,
BENZ
8.0 MITIGATION MEASURES .................... ............................... 11
9.0 REFERENCES .............................. ............................... 13
LIST OF TABLES
TABLE L Exterior Noise Ordinance Limits for the City of Tustin for Residential Property Affected by Non- Transporta-
tion Sources per Section 4614 .............................. ............................... 4
TABLE 1I. Interior Noise Ordinance Limits for the City of Tustin for Residential Property Affected by Non- Transporta-
tion Sources ............................................ ............................... 4
TABLE 1I1. Heavy Rail Traffic Volumes and Types Assumed to Calculate Existing Day -Night Average Sound Levels at
MCAS Redevelopment Project, Lot 20, Tustin ................. ............................... 5
TABLE IV. Roadway Traffic Volumes and Mixes Assumed to Calculate Existing Plus Project La„ Sound Levels for the
Proposed Tustin Legacy Apartments in the City of Tustin ............................ . .......... 6
TABLE V. Roadway Traffic Volumes and Mixes Assumed to Calculate Cumulative Plus Project La„ Sound Levels at
the Tustin Legacy Apartments in the City of Tustin ............. ............................... 7
TABLE VI. Predicted Day -Night Sound Levels for Existing Plus Project Conditions at the Tustin Legacy Apartments in
Tustin. ............................................... ............................... 8
TABLE VII. Predicted Day -Night Sound Levels for Cumulative Plus Project Conditions at the Tustin Legacy Apartments
inTustin . ............................................. ............................... 9
TABLE VIII. Predicted Cumulative Plus Project Interior Ld, Sound Levels in Representative 2' Floor Rooms of Tustin
Legacy Multifamily Housing in Tustin ...................... ............................... l t
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012
�cr
1.0 SUMMARY
This report documents the impact of road, rail and air traffic noise on the proposed Tustin Legacy
multifamily housing in the City of Tustin. Because the proposed apartments are part of the Marine
Core Air Station (MCAS) Redevelopment Project, few roads exist on the site. Road traffic will be the
major sound source at the project site when complete. Other sound sources include commercial flights
into and out of John Wayne Airport, heavy rail traffic to the north, activity at the commercial retail site
southwest of the project site and activity in the park to the east. The latter two sound sources are non -
transportation types. The heavy rail tracks are more than 3,000 feet away. John Wayne Airport is
approximately 2.5 miles southwest of the project site but departures are near the site. Road traffic is
expected to remain the dominant sound source at the project site to the design year of 2030. Sound
generated by activity in the park east of the site is expected to increase with time. Based on the pro-
posed layout, significant group activity is not expected to occur close to the common boundary. Sound
generated in the park will be heard and could become excessive at time. This is particularly true for
organized events or activities or for random individual events. Sound from commercial properties is
expected to increase slightly. The park and commercial property generate non - transportation sound
sources that are judged based on the hourly sound level. Sound reduction is difficult for both sources.
For park produced sounds, mitigation is limited to building sound walls at the common boundary,
monitoring park activity and restricting use near the boundary. The project will create non- transporta-
tion sources such as mechanical equipment, parking lot activity and general human activity. These are
not expected to adversely influence any nearby residential property. The project will generate road
traffic, but the day -night average, La, sound level will increase by less than 0.5 dB(A). This is consid-
ered insignificant.
The project site is on the former MCAS and includes a multi- family residential development and
the development of a park adjacent to it, to the northeast. The residential site is bounded by Tustin
Ranch Road on the west, Legacy Road on the north and Park Avenue on the east. Tustin Ranch Road
and Park Avenue exist, but not near the project site. Legacy will be a completely new street. All of
the 15 buildings will lie on Lot 20 and the park will occupy Lot MMM. Nine of the buildings will be
next to a street, one will be in the center of the other buildings, and five will be next to an adjacent
property or the park. All the apartment buildings will be three stories tall, except for the central build-
ing, which will be four stories.
Noise Requirements of City of Tustin are given in the Noise Element chapter of the City of Tust-
in General Plan [1]' and in the Noise Control chapter of the Health and Sanitation article of the City
of Tustin Code of Ordinances [2]. The California Building Code, CBC, [3] requires a noise study
when residential property is exposed to day -night average, L., sound level goal of 60 dB(A) or more
in outdoor activity areas. The City uses the Community Noise Equivalent Level, CNEL, as their met-
ric of choice for transportation sources. The CNEL divides the day into three parts, day, evening and
night with penalties for evening and night sound levels. The City sets an exterior L. sound level limit
of 65 dB for multifamily residences in common recreation areas and patios or balconies of 6 feet or
more in depth. The CNEL is typically higher than the L. sound level, but by no more than 0.5 dB.
The City and the State have an interior L. sound level limit of 45 dB in habitable spaces such as bed-
rooms.
* - Number in brackets refers to references listed at the end of this letter report.
RI 2135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 ai—V
Existing plus project exterior Ld., sound levels are predicted to be 53 to 67 dB(A) when measured
at the buildings' exterior, on balconies, or in common recreation areas. Road traffic is the main source.
The impact of the change in exterior L. sound level from cumulative to cumulative plus project is
insignificant. The changes in all predicted exterior Ld. sound levels are at or less than 70 dB(A), and
less than 65 dB(A) in the common recreation areas or on the balconies, the impact is considered insig-
nificant. Additional exterior sound reduction is not required.
The cumulative plus project exterior L. sound levels were used to predict the interior Ldd, sound
levels in habitable rooms closest to roadways. A 45 dB Ld. sound level design goal was used in the
evaluation of these spaces with the application of a 2 dB margin of safety. The margin of safety ac-
counts for inaccuracies in the model and the use of laboratory data that will not reflect field construc-
tion procedures and techniques. Interior Ld. sound levels will not exceed the City's 45 dB Criteria nor
the Design Goal of 43 dB(A). Predictions were done based on the proposed construction shown in the
architectural drawings [4]. Interior L. sound level impacts will be insignificant relative to the City's
limit and the design goal. Special mitigation measures will not be required but certain minimums
material and construction techniques must be followed to comply with the assumption used in arriving
at these conclusions.
Non-transportation sound sources associated with the park could produce levels that exceed the
City's Noise Ordinance. The park is not set up for organized athletics or concerts and sound reinforce-
ment systems will not be allowed. The park has been designed maximize the distance between picnic
areas and play areas and the boundary common to the apartments. Spontaneous or unorganized events
such as birthday parties could generate excess sound if held close to the common boundary. Ideally,
SEEN
MIS
people should be encouraged to hold such events in the designated areas and to be within 50 feet of the
common boundary during such gathers. The design allows visual access between the multifamily
dwellings and the park and a gate at one location allows access from the apartments. The proposed
wall separating the two uses provides both visual and acoustical views between the park and the apart-
ments. That is, the wall not stop people from looking into the opposite area and neither will it stop
sound from passing back and forth. Administrative action should be pursued first to prevent excess
sound generation by designing the areas closest to the common boundary to prevent any gatherings. If
a problem persists with excess sound from the park, building a sound wall along the common boundary
could be an option. This would only be undertaken after tests show that the City's limits are exceeded
and administrative options have been exhausted.
2.0 ACOUSTIC STANDARDS
Noise sensitive projects fall under the jurisdiction of two sets of acoustical criteria as published
by the City of Tustin. The first criterion is given in the Noise Element chapter of the City of Tustin
General Plan [I]. The second standards are contained in the Noise Control chapter of the Health and
Sanitation article of the City of Tustin Code of Ordinances [2]. These are described below.
2.1 Noise Element Standards
Acoustic criteria contained in the Noise Element of the City of Tustin General Plan are based on
the Community Noise Equivalent Level, CNEL, sound level. This criterion addresses the average
sound level over 24-hours and is directed mainly at transportation sources. Table N-3 of the Noise
Elements sets an interior noise limit is CNEL 45 dB and the exterior noise limit is CNEL 65 dB. The
interior noise standard is with windows closed. For multifamily residences, the exterior requirement
pjl
R12135: SAP, NLS and Recommendations to Meet Noise Limits; 'rustin Legacy Apts, August 28, 2412
applies on patios and balconies with a depth of 6 feet or more and in common recreation areas. For the
purpose of this project, common recreation areas are the courtyards of Buildings 8 and 9 and the recre-
ation/pool area.
Both the CNEL and La metrics address the average sound level over 24 -hours and are directed
mainly at transportation sources. The day -night noise descriptor averages measured or predicted sound
levels over 24 -hours after applying a 10 dB penalty to nighttime sounds. Hourly average sound levels,
Leq, are measured or predicted for each hour of the day or for each hour during which a sound source is
present. A 10 dB penalty is added to each hourly average sound level measured or predicted from
10:00 p.m. to 7:00 a.m. The penalty is applied because people trying to sleep during these hours are
more sensitive to external sounds. The CNEL divides the day into three parts instead of two. Daytime
is defined as 7:00 a.m. to 7:00 p.m. while the evening is the hours between 7:00 p.m. to 10:00 p.m.
The same nighttime penalty is applied for the CNEL but the evening has a 5 dB penalty for sound
measured during these hours. The 10 dB nighttime penalty is equivalent to multiplying the number of
train, plane or road "events" by 10. That is, the volume is increased by a factor of 10. The evening
penalty used by the CNEL is equivalent to multiplying the number of "events" by 3. Typically, the
CNEL is about 0.5 dB(A) higher than the L. sound level at any site. This is within the prediction
error for these metrics. However using the CNEL is difficult for many sources because there is no
specific information for 7:00 p.m. to 10:00 p.m. Therefore, the day -night average, L., is used instead
for many sources such as road traffic. Excluding or including only certain sources is possible. For
example, the sounds of aircraft flying over the site are included only during those hours when they
occur. If no events happen during the nighttime, no penalty would be applied. When some sources are
Inacexcluded from the analysis, it is called the Background L,„ or CNEL sound level.
2.2 Noise Control Ordinance
The second criteria, the Noise Ordinance [2], looks at the sound produced during shorter times by
sources not related to transportation equipment. The one exception is that sound produced by trans-
portation equipment while on private property may be regulated by the Noise Ordinance. This Ordi-
nance limits the amplitude and duration of sound produced over any given 1 -hour period. Sound limits
are based on the type of source, the duration of the sound, the time of day of occurrence, background
sound levels and the tonal content of sound. This is a City code and is enforceable with limited excep-
tions. The Noise Control Ordinance applies a 5 dB penalty to the limits when the sound comprises
mainly speech or music or if it contains pure tones or impact sounds. When background sound levels
equal the limits given in Table I for the individual categories, the limit of that category is raised to
reflect the background sound. The exact meaning of this is unclear. Table I summarizes limits of the
Noise Ordinance with and without a penalty but without regard to the background sound level. The
background sound level is that measured when the source or sources of interest are absent. Sound
generated at the project by people or mechanical equipment will be required to meet limits of the Noise
Ordinance at all nearby residential property. Sound generated at the park will be required to meet
these limits at the multifamily development.
The City also has a sound level limit for the interior of multifamily units. Again, the limits are
based on the sound measured over an hour. This standard is believed to apply to sources within adja-
cent units and for sources exterior to the building. Penalties apply for time of day and sound character-
istic. The influence of background sound on the limits is the same as for the exterior. Table II pro-
vides a summary of the interior noise standards for non- transportation sound sources.
3
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012
TABLE I. Exterior Noise Ordinance Limits for the City of Tustin for Residential Property Af-
fected by Non - Transportation Sources per Section 4614.
Exterior Sound Level Limits, dB(A)
.................................. . .................................... r.......................................................................
Without Penalty i With Penalty 0
. ...t .......................
Cumulative Number of Min- I Daytime Nighttime I Daytime Nighttime
1 30 (Lso)
( 55
50
50
45
2 15(L25)
60
55
55
50
3 5 (Los)
65
60
60
55
4 1 (Lo2)
70
65
65
i
60
5 0(LMAx)
75
70
70
65
- Penalty applies when sound is composed primarily of speech or music, contains pure tones or results from impacts or
impulsive sources.
TABLE 1I. Interior Noise Ordinance Limits for the City of Tustin for Residential Property Af-
fected by Non - Transportation Sources.
- Penalty applies when sound is composed primarily of speech or music, contains pure tones or results from impacts or
impulsive sources.
3.0 PROJECT DESCRIPTION & SITE
The project site is on an undeveloped plot of land that was part of a Marine Corps Air Station.
The property has been turned over to the City of Tustin for redevelopment. The infrastructure will
have to be installed before residential development can begin. A 12.2 acre parcel that is to be bor-
dered on the west by Tustin Ranch Road, on the north by Legacy Road, and on the east by Park Ave-
nue in the MCAS redevelopment project (Lots 20 and MMM of tract number 17404 [5]) is proposed to
be developed for affordable multifamily housing (7.49 acres) and a park (4.71 acres). A total of 225
units is to be constructed at the site in 14 3 -story buildings and one 4 -story building. The latter build-
ing includes the rental offices, club room, and fitness facilities as well as several apartments on the
ground floor. Four of the buildings front Park Avenue, three front Tustin Ranch Road, one is on the
corner of Tustin Ranch Road and Legacy Road, one fronts Legacy Road, one fronts an adjacent lot
(Lot 21), four front the park, and one is in the center of the other buildings.
All land that is part of the MCAS redevelopment project is currently vacant. Single- family
homes may be built on land surrounding the project site but at this time no land uses are confirmed.
Southwest of the project is an existing commercial retail center bordered on the north by the existing
C!
EBOB-
ING
Interior Sound Level Limits, dB(A)
...........................................................................................................
Without Penalty- j
..............................................................................................................
...............................
With Penalty -
...............................
Cumulative Number of Min-
Daytime
Nighttime (
Daytime Nighttime
Category utes in any I -hour period
7 a.m. to 10 p.m.
1.0 p.m. to 7 a.m.
7 a.m. to 10 p.m. 10 p.m. to 7 a.m.
1 5 (Los)
55
45
50 40
2 I (Lo2)
60
50
55 45
3 0(LmAx
; 65
55
60 50
- Penalty applies when sound is composed primarily of speech or music, contains pure tones or results from impacts or
impulsive sources.
3.0 PROJECT DESCRIPTION & SITE
The project site is on an undeveloped plot of land that was part of a Marine Corps Air Station.
The property has been turned over to the City of Tustin for redevelopment. The infrastructure will
have to be installed before residential development can begin. A 12.2 acre parcel that is to be bor-
dered on the west by Tustin Ranch Road, on the north by Legacy Road, and on the east by Park Ave-
nue in the MCAS redevelopment project (Lots 20 and MMM of tract number 17404 [5]) is proposed to
be developed for affordable multifamily housing (7.49 acres) and a park (4.71 acres). A total of 225
units is to be constructed at the site in 14 3 -story buildings and one 4 -story building. The latter build-
ing includes the rental offices, club room, and fitness facilities as well as several apartments on the
ground floor. Four of the buildings front Park Avenue, three front Tustin Ranch Road, one is on the
corner of Tustin Ranch Road and Legacy Road, one fronts Legacy Road, one fronts an adjacent lot
(Lot 21), four front the park, and one is in the center of the other buildings.
All land that is part of the MCAS redevelopment project is currently vacant. Single- family
homes may be built on land surrounding the project site but at this time no land uses are confirmed.
Southwest of the project is an existing commercial retail center bordered on the north by the existing
C!
EBOB-
ING
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 Aril--E
section of Tustin Ranch Road and an existing section of Warner Avenue. The Google Earth program
suggests that the property is currently about 45 to 47 feet above seal level (ASL) while the Tustin Leg-
acy civil engineering grading plans suggest that the finish floor elevations will range from 52 to 57 feet
ASL. The land will be fairly flat at the project site when complete.
Four basic apartment building designs are to be built with nine basic apartment layouts. All
apartments have 9 foot ceilings. The 3 -story buildings are designated at Types A (10), B (2), and C
(2). The 4 -story building is D and is the apartments cum recreation and rental office building in the
center of the development. Only four of the nine apartment layouts are evaluated as representative of
the worst case scenarios for this study. A typical exterior wall construction comprises 1 -coat stucco
over wire mesh, fastened to 1" thick insulation applied over 2- layers of building paper fastened to
7/16" shear plywood attached to minimum 2" x 4" wood studs. R -1 I insulation is to be installed in all
stud cavities with 5/8" Type X gypsum board attached to the interior face of the studs. The ceilings of
all living units will be finished with gypsum board. Double glazed windows will be used throughout
all units.
4.0 SOUND SOURCES
4.1 Existing
The proposed development is part of the Marine Core Air Station redevelopment project. None
of this land tract has been developed at this point. This includes a lack of roads on the property. Cur -
rently, Tustin Ranch Road borders a commercial retail center southwest of the project site but does not
continue onto the MCAS redevelopment land. Once roads are built on the MCAS redevelopment site,
road traffic on Tustin Ranch Road, Legacy Road, and Park Avenue will be the dominant sound source
influencing the project site. Other sound sources are secondary in importance and include aircraft
flyovers, heavy rail traffic, dogs barking and general human activity.
Railroad tracks exist just north of Edinger Avenue, which forms the north border of the MCAS
redevelopment lands. These tracks are approximately 3,900 feet from the proposed project site. The
volume of traffic on the tracks is unknown. Table III provides the assumptions made regarding vol-
ume, number of engines, speed and percent of nighttime traffic.
TABLE III. Heavy Rail Traffic Volumes and Types Assumed to Calculate Existing Day -Night
Average Sound Levels at MCAS Redevelopment Project, Lot 20, Tustin.
Distance to Average Number Number Percent
Train Track Center Daily of Whistle of of Trains Train
Description Line, Ft, Volume Engines Blown Cars at Night Speed
UPRC >3900 33 3 no 95 27 40
John Wayne Airport in Irvine is approximately 2.5 miles southwest of the project site. The main
runway runs approximately southwest to northeast. Typical flight patterns carry the aircraft north of
the project site. The site is outside any standard noise contours generated by airport operations. The
airport maintains noise level monitoring sites including three north of the airport (8N, 9N, ION) [6].
61
R12135: SAP, NLS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2612
Sites 8N and ION are generally in line with the runway while 9N is offset to the west. This project site
is offset to the east further than 9N is to the west, so 2010 published aircraft noise levels for site 9N
were used to estimate the noise impact on the proposed project from John Wayne Airport. Standard
noise levels for heavy rail traffic moving through urban areas at the same distance were used to predict
the sound impacts on the proposed project site from the railroad traffic.
4.2 Existing + Project
Once roads are built on the MCAS redevelopment property, road traffic will be the dominant
sound source on the project site. Tustin Ranch Road will have 2 -lanes running each direction along
the west border of the property. Legacy Road will have a single lane running along the north border of
the property of both the apartment complex and the park. Park Avenue also will have a single lane
running along the east border of the property of both the apartment complex and the park. Road traffic
counts were based on data in Volume 2 of the Final Environmental Impact StatementlEnvironmental
Impact Report for the Disposal and Reuse of MCAS Tustin, FEIS/EIR [7]. This document provided
2005 and 2020 counts. The project has not started so the 2012 volumes were assumed to be the same
as for 2005 since the project has not progressed. Legacy Road was not included in the redevelopment
FEIS/EIR. The road was assumed to be the Sam as Park Avenue. Table IV summarizes the data used
to model the existing plus project Ld, sound levels.
TABLE IV. Roadway Traffic Volumes and Mixes Assumed to Calculate Existing Plus Project Ld„�
Sound Levels for the Proposed Tustin Legacy Apartments in the City of Tustin.
Distance Average Percent Percent Percent Percent Vehicle
Road to Near Daily Heavy Medium Trucks Autos at Speed
Name Lane, Ft Volume Trucks Trucks at Night Night MPHo
Park Ave 25 8,000 2.0 3.0 6.0 11.0 30/25
Legacy Rd 25 8,000 2.0 3.0 6.0 11.0 30/25
Tustin Ranch Rd 25 14,000 2.0 10 6.0 11.0 45/40
e- Automobile and truck speed respectively
Rail and air traffic are not expected to change from existing to existing plus project. The infor-
mation given in the section on Existing Sound sources was used to find the exiting plus project L.
sound level.
4.3 Cumulative + Project
Road traffic on Tustin Ranch Road, Legacy Road and Park Avenue are expected to remain the
dominant sound source at the Tustin Legacy Apartments in the year 2030. Traffic generated by the
project will have a small impact on the total volume on these roads because the developments on the
other lots on Tract 17404 are expected to be built at approximately the same time as the proposed pro-
ject. Train movements and aircraft flights will remain sound sources of secondary importance. Very
little change is expected in the volume of traffic for these sources. The information in the section on
Existing sound sources will be applicable. Other secondary sound sources will include general avia-
tion flights, mechanical equipment and general human activity. Only vehicle volumes could be quanti-
fied.
Cf
rill
y
R12135: SAP, NIS and Recommendations mMeet Noise Limits; Tustin ugacrApts, August 28,2012
--
The project ndD potentially be' ted by non-transportation sound sources and will impact
other residential areas because of such sources. The project will add new non-transportation sound
sources including mechanical equipment, trash collection, vehicle movements in the parking lot and
general human activity. Commercial sites southwest of the site are potential sources of non-transporta-
tion oouod. This includes public address systems, mechanical equipment body work tools, people
tu|king, vehicles moving in and out ofparking lots and other l activity. Activity iu the park will
bo another source of non-transportation sound. Adults and children playing or yelling could generate
excessive sound. In general, quantifying these sources ivdifficult.
TzufOu volumes will grow from existing nkm project b» cumulative plus project conditions ma
shown in the FEI0/EIR for the study was based oothe
year 2005uaexisting and 2020 for the cumulative plus project. Traffic volumes on Tustin Ranch Road
were projected tngrnvvutuouuuoulcuhenf4pcnznut0mUueycur2020.Anuneunzptiunwuunoadethot
the 2020 projected volun\esvvcmnotilluppliuuhleundfuoher&n)`vtbwouhdncoozfrom2O\2b`2U20to
give these volumes. Between the year 2020 and 2030, road traffic was assumed to grow u1anannual
rate ofl.5 percent oo this road. Park Avenue traffic volumes were not expected 1ngrow from 2005to
2O2Oin the FIIIS/BlR. Then, the volume was assumed to increase at an annual rate of 3 percent per
year hn the year 2030. Legacy Road traffic volumes were not available but were assumed tobocompa-
rable to those on Park Avenue. The same growth rates were used also. The bufOo ruiz and upm:du
were uaaumocd to stay the same on all roads. A summary Vf road traffic information used tn compute
cumulative plus project I.u" sound levels in given io Table \/.
EM
DIE
MER
No changes were assumed in air and rail volumes or mixes b/ the year 2O30. lofbn-nation given
in the Existing Sound Source section was used to predict cumulative plus project [. sound levels.
5.0 EXTERIOR ACOUSTIC ENVIRONMENT
5.& Existing
As the MCAS redevelopment land is currently undeveloped, no measurements of existing sound
levels were made, nor were predictions of existing exterior sound levels completed. The existing
CNEL or L. sound levels are not important if there are no receivers to be impacted.
7
IN
TABLE V. Roadway Traffic Volumes and Mixes Assumed b) Calculate Cumulative
Plus Project
i^SouudLevclaoltbcTomtbn Legacy Apartments io the City ufTustin.
�
Distance Average Pcoom Percent Percent vmrou
Vehicle
Rood to Near Daily Heavy K4odimn Trucks Autos at
Speed
Name Lane, Ft Volume Trucks Trucks at Night Night
MPH,)
vxdk Ave 11,000 2.0 3.0 6.0 11.0
30/25
Legacy Rd 11,000 2.0 IO 6.0 !iO
3025
Tustin Ranch KJ 29,00 2.0 ]/] 6�0 11.0
45/4
o-Automobile and truck speed respectively
EM
DIE
MER
No changes were assumed in air and rail volumes or mixes b/ the year 2O30. lofbn-nation given
in the Existing Sound Source section was used to predict cumulative plus project [. sound levels.
5.0 EXTERIOR ACOUSTIC ENVIRONMENT
5.& Existing
As the MCAS redevelopment land is currently undeveloped, no measurements of existing sound
levels were made, nor were predictions of existing exterior sound levels completed. The existing
CNEL or L. sound levels are not important if there are no receivers to be impacted.
7
RI 2135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Aptg, August 28, 2012 Tn
5.2 Existing + Project
Predicted L. sound levels due to road traffic were made using the Federal Highway Administra-
tion (FHWA) Highway Noise Prediction Model [8]. The FHWA model was modified to include the
CalTrans noise emission levels [9]. Road visibility and ground conditions were considered in calcula-
tions of the hourly average sound levels at the worst case position outside each apartment or outdoor
area considered. The ground was assumed to be acoustically hard for all vehicle types.
The day-night average sound levels were predicted at the project site based on the data given in
Table IV for road traffic and for other background sources. Exterior sound levels were predicted for
ten positions: seven for the exterior of the apartment walls, three for balconies, and two for common
outdoor areas. Predictions for the seven apartments were done at the exterior wall of each of the seven
evaluated apartments in what was determined to be the worst position for each. The courtyard and
pool were evaluated in what was determined to be the worst case spot in terms of exposure to road
noise. Three balconies were chosen, each representative of the worst case for each building. Accord-
ing to the Noise Element [I], exterior noise standards have to be met in common recreation areas and
patios or balconies with a depth of six feet or more. This requirement means that exterior noise stan-
dards do not have to be met on the balconies of apartment floor plans B1, C1, A1, or A2. Predictions
of the exterior L,,,, sound level on the balconies were made for approximately three feet front the bal-
cony edge. Table VI gives the predicted day-night average sound levels for existing plus project con-
ditions at each of these nine positions.
SAME
TABLE V1. Predicted Day-Night Sound Levels for Existing Plus Project Conditions at the Tustin
Legacy Apartments in Tustin.
Predicted L, Sound Level, dB Total Ld,,,
....... ... dB, All
Bldg # Unit Type & Heavy Medium Total JW Air- Heavy Other Sources
& Type Position Trucks Trucks Auto-mobiles Roadway port" Rail Sources
#2, A B2 58 52 59 62 43 42 45 62
#2, A
B2, Balcony
55
49
56
59
43
42
45
60*
#2, A
Cl,
58
52
59
61
43
42
45
62
#8, C
B2
59
56
65
66
43
42
45
66
#8, C
B4
59
56
65
66
43
42
45
66
#8, C
B4, Balcony
51
48
56
58
43
42
45
58*
#8, C
Courtyard
54
51
60
61
43
42
45
62*
#10, B
B2
60
55
62
65
43
42
45
65
#10, B B2, Balcony 58 52 59 62 43 42 45 62*
#10, B C1 60 57 65 67 43 42 45 67
#10, B B4-Alt 59 56 65 66 43 42 45 66
#15, D Rec/Pool 45 42 50 52 43 42 45 54*
John Wayne Airport sound levels are in CNEL rather than L&
Denotes outdoor areas to which the Noise Element's exterior noise standard applies.
RON
I
E-13
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 _o
Existing plus project L. sound levels do not exceed the 65 dB limit in the pool, courtyard, or any
of the three balconies. These are the areas of primary concern to which the Noise Element's exterior
noise standard applies. The exterior L. sound levels are not excessive at any of the buildings also.
5.3 Cumulative + Project
Road traffic is expected to remain the dominant sound source influencing the L,,„ sound levels at
the project site to the year 2030. The FHWA model was used to predict the L. sound levels for road
traffic for cumulative plus project conditions using information in Table V. Though the number of
trains and planes is not expected to increase significantly, each of these was increased by 1 dB to ac-
count for the worst case scenario. Similarly, the other sound from other secondary sources was in-
creased by 2 dB to account for increased activity and varied land uses in the future. Table VII presents
the predicted L. sound levels at the same nine positions outside the seven apartments and in the Build-
ing 8 courtyard and pool area.
The predicted L. sound level for cumulative plus project conditions at the exterior varies from 56
to 70 dB(A). The Noise Element's 65 dB(A) noise standard applies to the two common recreation
areas and the three balconies. All of these spaces meet the noise standard, though the courtyard just
meets it with no safety factor. The exterior L. sound level at the face of the apartment reaches 70
dB(A).
Sound generated by people and animals using the park east/northeast of the Tustin Legacy apart-
ments could exceed the Noise Ordinance of the City. Predicting accurately sound levels for these
0
TABLE VII. Predicted Day -Night Sound Levels for Cumulative Plus Project Conditions at the
Tustin Legacy
Apartments in Tustin.
Predicted L, Sound Level, dB
Total Ld,,,
Bldg #,
Type
Unit Type &
Position
_ ..................................................
Heavy Medium Total JW
Trucks Trucks Automobiles Roadway Airport°
...............................
Heavy Other
Rail Sources
dB, All
Sources
#2, A
#2, A
B2
B2, Balcony
59
57
54
51
60
58
63
61
44
44
44
44
47
47
64
61
#2,A
CI
59
53
60
63
44
44
47
63
#8, C
B2
62
59
68
69
44
44
47
69
#8,C
B4
62
59
68
69
44
44
47
69
#8, C
B4, Balcony
54
51
60
61
44
44
47
61*
#8, C
Courtyard
57
54
63
65
44
44
47
65*
#10, B
B2
63
58
66
68
44
44
47
69
#10, B
B2, Balcony
59
53
60
63
44
44
47
63*
#10, B
Cl,
63
60
68
70
44
44
47
70
#10, B
B4 -Alt
62
59
68
69
44
44
47
69
#15, D
ReclPool
48
45
54
55
44
44
47
56*
-- John Wayne Airport sound levels are in CNEL rather than Ldn
* - Denotes outdoor areas to which
the Noise
Element's exterior noise
standard applies.
The predicted L. sound level for cumulative plus project conditions at the exterior varies from 56
to 70 dB(A). The Noise Element's 65 dB(A) noise standard applies to the two common recreation
areas and the three balconies. All of these spaces meet the noise standard, though the courtyard just
meets it with no safety factor. The exterior L. sound level at the face of the apartment reaches 70
dB(A).
Sound generated by people and animals using the park east/northeast of the Tustin Legacy apart-
ments could exceed the Noise Ordinance of the City. Predicting accurately sound levels for these
0
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28,2012 _-LbN_qn9_
sources is not possible without complete knowledge of the people using the park, what they are doing,
where are they doing and the time of day they are doing the activity. If a typical group activity occurs
near the west boundary of the park, the sound limits will likely be exceeded. Noise making activity
that occurs farther from this boundary will result in little or no impacts. Organized sporting or musical
events could result in excess sound at the residences, especially if a sound reinforcement system is
used.
6.0 INTERIOR ACOUSTIC ENVIRONMENT
The State of California assumes that a 15 dB reduction can be expected from the building exterior
to the building interior with the windows open. Thus, any Ld,, sound level greater than 60 d13 will
cause interior sound levels to be greater than the 45 d13 limit [I] if the windows or doors are allowed to
be open. The Noise Element specifies that the interior noise standard of CNEL 45 d13 is with the win-
dows closed. The 45 dB limit with a 2 dB margin of safety was used to evaluate the wall construction
of the Tustin Legacy apartment buildings. A margin of safety is used because the highway noise pre-
diction model is only good to ±1.5 dB(A) and because laboratory test data is used for construction
materials. The laboratory data is called the Sound Transmission Class, STC, ratings of building com-
ponents. Laboratory construction techniques can seldom be duplicated in the field. The State assumes
up to a 5 dB reduction in sound loss from the laboratory to the field. The STC rating of building prod-
ucts is used in the calculation of interior L. sound levels.
Interior L. sound levels were predicted for bedrooms on the second floor that were closest to the
street. Interior Ld,, sound levels are typically higher in smaller rooms, rooms with more than one exte-
rior wall, and rooms closest to Tustin Ranch Road which has the highest traffic volume and projected
speed. Because no sound measurements were made at the site, road traffic sound spectra measured at
another site with similar traffic volumes and speeds was used to calculate interior L. sound levels
based on the exterior L. sound level shown in Table VII. The wall construction described in the Pro-
ject Description Section was used in the prediction. A 5 dB reduction in the sound transmission was
assumed because of the source location outdoors with no reflecting surfaces nearby [ 10]. The sound
transmission loss of materials used in exterior constructions was taken from publications by the Na-
tional Institute of Tests and Standards [11] and the State of California [12]. Some data was taken from
literature published by manufacturers or computed from in house computer models.
Table VIII summarizes the predicted interior L. sound levels for representative units closest to
each of the three roads. Exterior Ldn sound levels shown in Table VII were used for these calculations.
Interior L. sound levels are all less than the 45 dB required by the City and less than the re-
quired level with a 2 dB(A) margin of safety. Sound impacts will be less than significant and mitiga-
tion measures are not required. The predicted results are true assuming the construction materials and
practices meet minimum requirements. These general requirements are described in the mitigation
section of this report.
The influence of road traffic on sleep interference and speech interference was evaluated also.
The maximum sound levels in bedrooms will be less than 50 dB(A). This will be sufficient to prevent
speech and sleep interference.
10
R12135: SAP, NIS and Recommendations to Meet Noise Limits, Tustin Legacy Apts, August 28, 2012 5_
TABLE VIII. Predicted Cumulative Plus Project Interior La„ Sound Levels in Representative 2
Floor Rooms of Tustin Legacy Multifamily Housing in Tustin.
Bldg No. Bldg Type Unit Type Room Name Interior L., dB
2 A B2 Master Bedroom 32
2
A
B2
Bedroom 1
32
2
A
C1
Bedroom 1
32
8
C
B2 (North)
Master Bedroom
38
8
C
B4 (North)
Master Bedroom
37
10
B
B2
Master Bedroom
34
10
B
B2
Bedroom 1
37
10
B
CI
Master Bedroom
38
10
B
C1
Bedroom 1
38
10
B
C1
Bedroom 2
28
10 B B4 -Alt Master Bedroom 37
7.0 ACOUSTIC IMPACT
5
7.1 Exterior Impact
Exterior La sound level impacts for cumulative to cumulative plus project conditions due to
transportation sound sources are insignificant for multi - family residences. The noise impact due to the
absolute L. sound is insignificant because the predicted Ld„ sound levels are at or less than 70 dB(A)
and because backyards do not exist. The La sound level on the south side of the club house will be
less than 60 dB(A) and this was assumed to be the "backyard" for these units.
Sound levels produced by transportation and non - transportation sources associated with this pro-
ject could be significant. Sound reduction could be required, but too many unknowns exist. Both
administrative and physical sound reduction is possible.
7.2 Interior Impact
Interior La sound level impacts are insignificant for cumulative plus project conditions based on
the County's limit 45 dB in habitable spaces. Impacts are insignificant relative to the design goal of 43
dB and the maximum sound level. These conclusions are based on the proposed floor plans and con-
struction. All walls and windows must meet minimum acoustical requirements in all areas for these
conclusions to be correct.
8.0 MITIGATION MEASURES
Exterior sound reduction is not required for this project for transportation sources. Non- transpor-
tation sound generated in the park could have a significant impact. Options are included for providing
relief for such sources, but they would be implemented only if it is determined that a need exists for
such measures. Interior sound reduction is not needed to meet noise limits for transportation sound
11
R12135: SAP, mIS and Recommendations mMeet Noise Limits; Tustin LegacrApts, August 28,2012
acoustical sources. General bs met for any of the conclusions toheaccurate. The
general requirements are given in the following outline.
General Requirements
A. All joints in exterior walls shall be sealed airtight around windows and doors, atthe wall
perimeter and at major umoono.
B. All above ground penetrations of exterior walls by electrical and plumbing components shall
include a V4 to V2 inch airspace around the perimeter. This space shall be filled loosely with
fiberglass insulation. The space shall then be sealed airtight on both sides of the wall with a
resilient, non-hardening caulking or mastic.
C. Basic exterior wall
l. Minimum 2"x4" wood studs o1u minimum l6 inches oncenter.
2. Minimum B,ll insulation bz the stud cavities,
3. Minimum 5/8" Type X gypsum wallboard fastened to the interior face of the wood
studs. The wall shall be fully taped and finished including where perpendicular walls
intersect and where the wall meets the ceiling. The base of the vvn]|u shall be ocolcd
with u combination of backer rod and resilient, non-hardening caulking,
4. The exterior surface shall be finished with the following or with another product with
equal oc greater surface weight.
u. Minhznon L -layer ofminimum 7/16" shear plywood with
h. 2-layers of building paper fastened over plywood.
C. l" thick dense insulation applied over building paper and fastened to studs ocply-
wood,
d. Minimum 2O gauge l" wire mesh, and
e. I -coat stucco over wire mesh,
D. Windows shall have a minimum QTC rating of29nrbetter. Windows shall have un air infil-
tration rate of less than or equal to 0.20 CFM0in. ft. when tested with a25mile an hour
wind per A8TM standards. A good quality window with //x" float glass, >\" airspace, //."
float glass window should meet this requirement if the seals meet iufi)brationrates.
B. All exterior doors mbaD have uminimum 8TC nadnszofZA.
F. Sliding glass shall have uminimum STC 29 rating.
G. There shall beooneed to open windows, doors ozother exterior openings to provide ade-
quate Ynndludoo.
D. Sound Sources in Park
A. Administrative
l. Ensure park im closed for general use by 10:00 p.m.
_ Encourage
the residential boundary.
-' Design park ~'~ limit gatherings such ~~birthday parties from being within ~` feet ~^
the west property line.
IN
ON
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012
vivmmmmm
4. Enforce the restriction on the use of sound reinforcement systems in the park and do
not allow the use of such equipment after 8:00 p.m or dusk, whichever comes first.
B. Physical Mitigation Measures (If administrative efforts are insufficient. Use only as a last
resort)
I . Construction a minimum 6 foot tall sound wall along the boundary between the apart-
ments and the park where the current combination solid and open wall is to be built.
2. Any such wall shall have a minimum surface density of 3.5 to 4 lbs. /sq.ft.
3. The wall shall be continuous along its length and height with no gaps or holes.
9.0 REFERENCES
L Anon., "Noise ", from City of Tustin General Plait, adopted June 17, 2008.
2. Anon., "Chapter 6: Noise Control" in "Article 4: Health and Sanitation ", from City ojTustin Code of Ordi-
nances, adopted May 15, 2012.
3. 2007 California Building Code, Appendix Chapter 12 Amended, Division IIA, Sound Transmission Control.
N
�� z
4. Anon. "Tustin Legacy, Tustin, CA, Development Application ", for St. Anton Partners, Sacramento, by Archi-
tects Orange, Orange, CA, July 23, 2012.
5. R.S. Williams, L.S. 6654, Hunsaker and Associates Irvine, Inc., Date of Survey: August 2007, Tract No.
17404, in the City of Tustin, County of orange, State of California. Received via email from St. Anton Part-
ners, LLC.
6. Anon., "Table 2: Long Term Measured Aircraft Noise Levels" from JWA Noise Abatement Program Quar-
terly Report, retrieved from http:// www. ocair. com/ reportspubIications /AccessNoise /noiselevels.pdf.
7. Anon., Final Environmental Impact Statement/Environmental Impact Report for the Disposal and Reuse of
MCAS Tustin, Volume 2.
8. T.M. Barry & J.A. Readgan, FHWA Highway Traffic Noise Prediction Model, FHWA -Rd -77 -108, Federal
Highway Administration, Office of Research, Office of Environmental Policy, December 1978.
9. R.W. Hendriks, California Vehicle Noise Emission Levels, FHWA /CA /TL- 87/03, Office of Transportation
Laboratory, California, Department of Transportation, Sacramento, California, 95819, January 1987.
10. G.E. Mange, S.R. Skale, L.C. Sutherland, Background Report On Outdoor- Indoor Noise Reduction Calcula-
tion Procedures Employing The Exterior Wall Noise Reduction (EWNR) Method, FHWA Report TS -77 -220;
March 1978.
IN
R12135: SAP, NIS and Recommendations to Meet Noise Limits; Tustin Legacy Apts, August 28, 2012 - 4"V_
Anon., Acoustical and Thermal Performance of Exterior Residential Walls, Doors and Windows, NBS
Building Science Series 77, National Bureau of Standards (National Institute of Tests and Standards), Depart-
ment of Commerce, 1975.
12. R. DuPree, Catalog of STC and 11C Ratings For Wall and FloorlCeiling Assemblies with TL and ISPL Data
Plots, Office of Noise Control, California Department of Health Services, Berkeley, California, 1981.
0311-0
1101
01111>10
11_1
IN
ME
FEW-
M
Exhibit 2
Parking demand Analysis with Gate Design
Study
September 24, 2012
Ms. Rachel Green
St. Anton Partners
18011 Street, Suite 200
Sacramento, California 95811
Subject: Parking Assessment Anton Legacy Apartments
WAS Tustin Specific Plan, Disposition Package 1A-North, Lot 20
1EIRIMIM
Pursuant to your request, we are pleased to submit this parking assessment for Anton
Legacy Apartments to address concerns expressed by City of Tustin Staff on the
appropriateness of this project providing parking spaces based on State affordable housing
parking requirements. This project is providing 435 parking spaces while the State parking
code requires a total of 372 parking spaces and MCAS Tustin Specific Plan requires a total
of 468 parking spaces. Using the City of Tustin specific plan, the proposed apartment
project does not comply with the City's parking requirements. However, this parking
assessment will demonstrate that the parking spaces provided by the proposed apartment
project are sufficient and will not adversely impact parking and circulation within or
outside the project area,
St. Anton is proposing to develop 225 affordable multifamily dwelling units in the City of
Tustin MCAS Tustin Specific Plan, Disposition Package IA-North. The project is located on
Lot 20 in Neighborhood Cl of Planning Area 15. The lot is approximately 7.5 acres and
bounded by Legacy Road to the north, a future park to the east, Park Avenue to the south,
and future Tustin Ranch Road to the west, see Attachment 1. There will be a total of 78
one-bedroom, units (35% of total), 117 two-bedroom units (52% of total), and 30 three-
bedroom units (13% of total). The project's dwelling units are further Separated into 88 very
low income units, 77 low income units, and 64 moderate income units. A total of 435
parking spaces are provided for residents and guests, including garages, tuck-under
parking and surface parking. The parking spaces are distributed throughout the project site
to serve the fifteen buildings.
The apartment project is subject to parking requirements contained in the City of Tustin
MCAS Tustin Specific Plan, Chapter 3.13 Off-Street Parking. The residential off-street
parking requirements are detailed, in Chapter 3.13.2, Table 3-4 and include separate
requirements for all reuse plan disposition parcels except Parcel 36 and for Parcel 36 only.
NO
SOON
Ms. Rachel Green
Page 2
September 24, 2012
The requirements for condominiums and multiple-family are used and are summarized in
Table 1.
Based on the specific plan requirements, the proposed apartment project requires 411
parking spaces for residents with 372 of them in a garage or carport and 57 guest parking
spaces, for a total of 468 parking space".
The proposed apartment project also satisfies the State residential off-street parking
requirements. Per the State of California Government Code Section 65915, one density
bonus shall be granted if the housing development contains 10% for lower income
households or 5% for very low income households or senior citizen housing, or 10% for
moderate income households. The proposed apartment project contains 34% for lower
income, 39% for very low income, and 28% for moderate income. As the proposed apartment
project contains unit percentages far above the calculation shown in Section F. St. Anton is
requesting to use the parking ratios shown in Section P (see Table 2).
Table 2
State of California Residential Off-Street Parking Requirements
Table I
AS
NS Tustin Specific Plan Residential Off-Street Parking Requirements
Number of
Housing Type Number of Spaces Covered/Assigned Unassigned Guest
�A_Required Spaces per Unit aces
Condominium and Multiple - Family Units
0 to 1. Bedroom
Garage or carport 0.25 per unit
I Bedroom
1.5 1 Garage or carport, 0.25 per unit
2 Bedroom
10 1 Garage or carport j 0.25 per unit
3 Bedroom
2.0 1 Garage or carport 0.25 per unit
4 Bedroom
2.5 1 Garage or carport 0.25 per unit . J
Based on the specific plan requirements, the proposed apartment project requires 411
parking spaces for residents with 372 of them in a garage or carport and 57 guest parking
spaces, for a total of 468 parking space".
The proposed apartment project also satisfies the State residential off-street parking
requirements. Per the State of California Government Code Section 65915, one density
bonus shall be granted if the housing development contains 10% for lower income
households or 5% for very low income households or senior citizen housing, or 10% for
moderate income households. The proposed apartment project contains 34% for lower
income, 39% for very low income, and 28% for moderate income. As the proposed apartment
project contains unit percentages far above the calculation shown in Section F. St. Anton is
requesting to use the parking ratios shown in Section P (see Table 2).
Table 2
State of California Residential Off-Street Parking Requirements
Government Code 65915 Section P
Housing Type
On-site Parking Spaces
0 to 1. Bedroom
1.0
2 to 3 Bedroom
2.0
4 and more Bedroom
2.5
Based on the State requirements, the proposed apartment project requires 372 parking
spaces, inclusive of handicapped and guest parking spaces,
ROTOR
Ms. Rachel Green
NOM
Page 3
September 24, 2012
Existing Parking L)ernand
When the City's Code required parking rate for condominium and multiple-family is
applied to the proposed apartment project, 468 parking spaces are required. However, when
the State's Code required parking rate is applied, 372 parking spaces are required. Due to
the large difference in parking requirements, a parking accumulation survey was conducted
to determine the actual parking utilization at similar sites. The counts were conducted at
two similar affordable apartment projects in the City of Irvine, the Woodbury Walk
Apartments and the Montecito Vista Apartments, on Wednesday, September 5, 2012 and on
Saturday, September 8, 2012. These two existing apartment locations contain 100%
affordable units, which is consistent with the proposed apartment project. The count hours
were 6:00 AM to 9:00 AM and 8:00 PM to 11:00 PM on Wednesdays and 8:00 AM to 12:00
PM on Saturdays, all at 30-minute intervals. The locations and count hours were
coordinated with and approved by City of Tustin Staff. The existing sites that were used to
conduct the counts are shown in Attachment 2 and 3. The parking accumulation counts at
both existing sites are provided in Appendix A for reference.
The existing Woodbury Walk Apartments is located in Planning Area 9.A in the City of
Irvine and has 150 affordable multifamily dwelling units, out of a total of 150 units. There FROM
are 30 one-bedroom units (20% of total), 74 two-bedroom units (49% of total), and 46 three-
MEN'
bedroom units (31% of total). A total of 266 parking spaces are provided on-site, with 2371 IN
regular spaces (135 single car garages), 25 guest spaces, and 4 handicap spaces. As the
parking accumulation counts show, the peak parking demand occurred on Wednesday at
6:00 AM and 6:30iW- when 214 regular spaces (including 135 inside the garages and 3
handicap spaces) and 24 guest spaces were parked on-site. The peak parking demand
occurred on Saturday at 8:00 AM when 207 regular spaces (including 135 inside the
garages and :3 handicap spaces) and 18 guest spaces were parked on-site. To determine the
actual parking rate for the existing apartments, 238 vehicles observed on Wednesday at
6:00 AM was divided by the total dwelling units. Based on this information Woodbury Walk
Apartments during the peak period observed was parked at an average rate of 1.59 parking
spaces per dwelling units (238 spaces/150 dwelling units). It should be noted that the
percentage of 2-bedroom units is similar to the proposed apartment project (49% vs. 52%)
but the percentage of 3-bedroom units is higher (31% vs. 131/1o). The unit mix suggests that
more parking spaces would be required at Woodbury Walk Apartments.
The existing Montecito Vista Apartments is located in Planning Area 4 in the City of Irvine
and has 1.62 affordable multifamily dwelling units, out of a total of 162 units. There are 84
two-bedroom units (52% of total) and 78 three-bedroom units (48% of total). A total of 347
parking spaces are provided on-site, with 319 regular spaces, 12 guest spaces, 6 handicap
spaces, 9 community spaces, and I reserved space. As the parking accumulation counts
show, the peak parking demand occurred on Wednesday at 6:00 AM when. 230 regular
spaces and 4 guest spaces were parked on-site. The peak parking demand occurred on
Saturday at 8:00 AM when 209 regular spaces and 3 guest spaces were parked on-site. To
NINE �
11-11
determine the actual parking rate for the existing apartments, 234 vehicles observed on RE
INS--
L
F-117-
W Ms. Rachel Green
Page 4
September 24., 2012
Wednesday at 6:00 i)dN4 was divided by the total dwelling units. Based on this information
Montecito Vista Apartments during the peak period observed was parked at an average
rate of 1.44 parking spaces per dwelling units (234 spaces/162 dwelling units). It should be
noted that the percentage of 2-bedroom units is similar (52% vs. 52%) but the percentage of
3-bedroom units is higher (48% vs. 13%). The unit mix suggests that more parking spaces
would be required at Montecito Vista Apartments.
As can be seen there is a significant difference between the City's code required parking
rate for condominium and multiple-family units shown in Table 1 (2.08 parking spaces per
dwelling units for the proposed apartment project) and the observed parking rate of 1.59
spaces and 1.44 spaces per dwelling units. Using the Institute of Transportation Engineers
Parking Generation Manual, 4th Edition the average peak period parking rate for low/mid-
rise apartments is 1.23 vehicles per dwelling units. This rate is similar but lower to the
observed peak parking rate. The State code required parking rate for the proposed
apartment project is 1.65 vehicles per dwelling units. Using the average observed parking
rate (1.52 vehicles per dwelling units) at the existing affordable apartments and applying it
to the proposed 225 dwelling units would require 342 parking spaces. This is a very close
correlation to the 372 parking spaces calculated per the State code.
1 "01
IN Proposed Parking Demand
The proposed Anton Legacy Apartments located in the City of Tustin is providing a total of
435 on-site parking spaces. When the City's code required parking for condominium and
multiple-family units is applied to the project 468 parking spaces are required, which
exceeds the number of parking spaces provided by 33 parking spaces. Using the average
observed parking rate of 1.52 vehicles per dwelling units would require 342 parking spaces,
which is a surplus of 93 parking spaces. Using the State, parking code of 1.65 vehicles per
dwelling units would require 372 parking spaces, which is a surplus of 63 parking spaces.
As a comparison the parking rate contained in the Institute of Transportation Engineers
Parking Generation Manual, 4th Edition for low/mid-rise apartments would require 277
parking spaces, which is a surplus of 158 parking spaces. A comparison of the parking rates
are shown in Table 3.
Table 3
Parking Rate Comparison
Source
Rate
Dwelling
Units
Parking
Provided
Parking
Required
Surplus/
Deficit
City
2.08/du
225
435
468
Average(?)
225
435
342
93
State
1.65/du
225 1
435
372
63
1.23/du
225 1
435
277
158
(i) Average of the two observed parking rates
(2) Institute of Transportation Engineers
Ms. Rachel Green
Page 5
September 24, 2012
Parking rates are based on acceptable design criteria that generally use dwelling units as
the basis for determining the required parking for residential developments. In the case of
Anton Legacy Apartments, the parking demand and parking characteristics observed at
two similar sites generate a parking rate that is similar to the parking requirements
contained in the State of California Government Code 65915.
Gate Stacking
The site plan prepared by Fuscoe Engineering dated August 27, 2012 shows that Anton
Legacy Apartments will share an access off of Park Avenue with the future park, see
Attachment 4. This access will be a gated access with the entry/exit gates and call box
located past the future park parking drive aisles. The gate stacking for the proposed
apartment project is reviewed based on the County of Orange Standard Plan 1107, which is
one foot of stacking per dwelling unit. Therefore, a minimum of 225 feet of stacking is
required.
All resident and guest parking spaces for the proposed apartment project are located inside
the gated area. There is an entry and exit gate separated by a 5-foot raised center median.
Both the entry and exit gates are 2-piece swing gates. Residents will access the gate with
entry devices (remote) while guests will use the call box to gain entry. The gates will take
approximately 30 seconds for one full open-close cycle but sensors will re-open the gates
when additional vehicles are detected. It is anticipated that after the initial lease period,
the gates will remain closed during all hours. In the event of a power outage, the gates will
automatically swing open and stay open until power has been restored. The call box is
located approximately half-way between the future park drive aisles and the gates. In
addition, there is a turnaround area between the call box and the gates, see Attachment 4.
The project drive provides full access to the site and future park and is approximately 40
feet wide at Park Avenue, 41 feet wide at the call box, and 38 feet at the gates (see
Attachment 4). The 40-foot wide cross section of the drive consists of two inbound lanes and
two outbound lanes and a raised center median at the call box. The inbound drive consists
of two 10-foot wide lanes at the entry and at the call box that narrows down to a single 20-
foot wide lane at the gate. The raised median at the call box is 5 feet wide. The outbound
drive consists of one 13-foot wide lane at the gate and one 16-foot wide lane at the call box
that widens to one 10-foot wide shared throughileft -turn lane and a 10-foot wide right-turn
lane, Per Orange County Fire Authority (OCFA) requirements, the entry and exit lane at
the gates shall be a minimum of 13 feet. There is a secondary gated emergency vehicle
access west of the project drive along Park Avenue but it will not be accessible by residents
and guests. The distance of the guest lane from the prolongation of the curb to the call box
is 173 feet and the resident lane from the prolongation of the curb to the gate is 280 feet,
The total stacking distance for both lanes is 453 feet, which is more than the required 225
feet. As a worst case scenario, the stacking distance is taken from the prolongation of the
exit lane curb of the future park. The distance of the guest lane to the call box is 61. feet and
10
N
IN
10
NEMs. Rachel Green
10 Page 6
WN September 24, 2012
the resident lane to the gate is 168 feet. The total stacking distance under the worst case
scenario is 229 feet, which is still more than the required 225 feet.
The proposed gates are located at the easterly portion of the project site. The throat
distance from the proposed gates to the first on-site drive aisle is 84 feet. Per OCFA
requirements, the minimum gate setbacks are 27 feet behind the gates and 56 feet in front
of the gates. Therefore, the operation of the gates will not negatively affect the on-site
circulation. The proposed on-site garages, tuck-under parking, and surface parking are
distributed throughout the site to serve the fifteen buildings and none are located within
the throat area. Therefore, the operation of the gates will not negatively affect the on-site
parking and distribution. As detailed above, the gate stacking distance for the proposed
apartment project is more than the required distance even under the worst case scenario.
Therefore, the operation of the gates will not negatively affect vehicles utilizing the future
park. The operation of the gates also will not negatively affect vehicles on Park Avenue.
Conclusion
St. Anton is proposing to develop the Anton Legacy Apartments in the City of Tustin within
the NICAS Tustin Specific Plan area. The proposed 225 multifamily dwelling units are
100% affordable and contain lower income units, low income units, and moderate income
fir„ units. The proposed project is providing a total of 435 parking spaces, which is less than the
MEN
468 parking spaces required by City of Tustin but more than the 372 parking spaces
required by State of California for affordable housing developments, St. Anton is requesting
the application of the State parking requirements for affordable housing developments.
Therefore a parking accumulation study was conducted at two existing similar apartments
in the City of Irvine on a weekday and one weekend day to establish the observed parking
ratio. The Woodbury Walk Apartments and Montecito 'Vista Apartments are 100%
affordable and similar sized. Based on the results of the study, the average observed
parking ratio for both sites is 1.52 spaces per dwelling units, which is significantly different
than the parking ratio calculated from City requirements of 2.08 spaces per dwelling units.
However, this compares closely with the parking ratio calculated from the State parking
requirements of 1.65 spaces per dwelling -units. Applying the State parking requirements
will result in a total of 372 parking spaces. Therefore, the proposed apartment project will
have a surplus of 63 parking spaces. In addition, the unit mix at the two existing
apartments suggest that more parking spaces are required compared to Anton Legacy
Apartments.
A gate stacking analysis was also conducted for the Anton Legacy Apartments based on the
County of Orange Standard Plan 1107, which is one foot of stacking per dwelling unit, for a
total of 225 feet of stacking. The separate entry and exit gates are 2-piece swing gates with
sensors to re-open the gates if additional vehicles are detected. The inbound drive consists
of one 10-foot guest lane and one 10-foot resident lane, which narrows down to a 20-foot
lane at the gate. The distance of the guest lane from the prolongation of the entry curb is
173 feet and the resident lane to the gate is 280 feet. The total stacking distance of 453 feet
Ms, Rachel Green
Page 7
September 24, 2012
is more than the 225 feet of stacking required. However, the project drive is a shared drive
with a future park and therefore a worst case scenario for the stacking past the future park
parking drive aisles was conducted. The distance of the guest lane to the call box is 61 feet
and the resident lane to the gate is 168 feet. The total stacking distance under the worst
case scenario is 229 feet, which is still more than the required 225 feet. The location of the
entry and exit gates will not negatively affect the on•site parking and circulation. Since the
stacking distance is more than the minimum required, the gates will not negatively affect
vehicles utilizing the future park. Also, the gates will not negatively affect vehicles on Park
Avenue,
Please call me if you have any questions regarding the above analysis or, if you need any
additional information.
Sincerely,
4---
Peter Hsu, P.E.
Project Manager
Attachments
PAI 17301(2),Al,%Ii,Tti�tiii-OW,12012.R(,rttii-Parkint,
gAsizessment-Impyh
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