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HomeMy WebLinkAbout03 DDA 2012-001, THE IRVINE COMPANYAGENDA REPORT Agenda Item Reviewed City Manager Finance Director 3 MEETING DATE NOVEMBER 6, 2012 TO JEFFREY C PARKER, CITY MANAGER & TUSTIN HOUSING AUTHORITY EXECUTIVE DIRECTOR FROM ELIZABETH A BINSACK COMMUNITY DEVELOPMENT DIRECTOR JOHN BUCHANAN, PROGRAM MANAGER CITY MANAGER S OFFICE SUBJECT CITY COUNCIL CONSIDERATION OF DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) 2012 001 DEVELOPMENT AGREEMENT 2012 -001 (ORDINANCE NO 1422) CONCEPT PLAN (CP) 2012 002, DESIGN REVIEW (DR) 2012 -004 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) AND TENTATIVE PARCEL MAP (PM) 2012 136, FOR 533 RESIDENTIAL APARTMENTS INCLUDING 37 MODERATE INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A TUSTIN LEGACY (THE IRVINE COMPANY, LLC), AND, TUSTIN HOUSING AUTHORITY CONSIDERATION OF THE REQUIRED AFFORDABLE HOUSING AND REGULATORY AGREEMENT SUMMARY The Irvine Company has submitted applications to the Community Development Department for Development Agreement (DA) 2012 001 (Ordinance No 1422) Concept Plan (CP) 2012 -002, Design Review (DR) 2012 004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and Tentative PM 2012 -136 requesting authorization to develop 533 multi - family residential apartment homes, including 37 moderate income affordable units in compliance with California Government Code Section 65915(1) at Disposition Package 2A, Tustin Legacy, to be implemented by The Irvine Company or its affiliate as may be approved by the City of Tustin On October 9, 2012, the Tustin Planning Commission considered the matter and recommended that the Tustin City Council approve the project as conditioned The project is consistent with the Tustin City Code MCAS Tustin Specific Plan and the June 19 2012 Exclusive Negotiation Agreement (ENA) between The Irvine Company and the Tustin City Council The City Council recently reviewed price, terms and payment for Disposition Package 2A and directed staff to prepare Disposition and Development Agreement ( DDA) 2012 001 with Legacy Villas LLC a Special Purpose Entity formed by The Irvine Company for Disposition Package APPLICANT The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 PROPERTY OWNER City of Tustin City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004, Density Transfer Density Bonus and PM 2012 136 Page 2 RECOMMENDATION That the City Council 1 Adopt Resolution No 12 -95 finding the project is within the scope of the adopted Final Environmental Impact Statement/Environmental Impact Report for the MCAS Tustin Reuse and Specific Plan, the Supplemental and Addendum, and that pursuant to Government Code Section 65457, the project is exempt from further environmental review 2 Adopt Resolution No 12 -100 approving Disposition and Development Agreement (DDA) 2012 001 between the City of Tustin and Legacy Villas LLC, a Special Purpose Entity formed by The Irvine Company for development of 533 affordable residential apartment housing units, including 37 moderate - income units at Disposition Package 2A, and, authorizing the City Manager to execute said DDA 2012 -01 subject to any non - substantive modifications as may be determined necessary and /or recommended by the City's special real estate counsel or the City Attorney and to carry out all City actions necessary to implement the DDA including execution of related documents as required by the DDA, 3 Introduce and have first reading of Ordinance No 1422 approving Development Agreement (DA) 2012 -001 between the City of Tustin and The Irvine Company, for 533 residential apartment units including 37 moderate - income units at Disposition Package 2A 4 Adopt Resolution No 12 -93 approving Concept Plan (CP) 2012 002, Design Review (DR) 2012 -004, Density Transfer, 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) and Parcel Map (PM) 2012 -136, required for the development of 533 apartment units including 37 moderate - income units, at Disposition Package 2A (The Irvine Company), 5 That the Tustin Housing Authority authorize the Executive Director and /or City Manager to execute the Affordable Housing and Regulatory Agreement between the Tustin Housing Authority, the City of Tustin and The Irvine Company FISCAL IMPACT 1 At conveyance the City will receive $30,148,000 from the sale of parcels 2A and 1A- North that will be placed in the "Tustin Legacy Land Sale account An independent third party appraisal was conducted by the City, the appraisal confirms that the property is being sold at Fair Market Value Because of the density bonus and transfer of 120 affordable units to 1A -North (discussed later within this report), the opinion of value was for the combined parcels 2A and 1A -North The City will receive ($30,148 000) upon the conveyance of 2A, and $1 00 upon the conveyance of 1A North 2 At conveyance the Developer will pay to the City a Tustin Legacy Master Marketing Program Fee of $50 000 for the marketing of Tustin Legacy City Council Report November 6 2012 DDA 2012 001 DA 2012 001, CP 2012 002, DR 2012 004 Density Transfer Density Bonus and PM 2012 136 Page 3 3 The Developer will pay the Tustin Legacy Fair Share Infrastructure Obligation in the amount of $15,300,000 for the construction of infrastructure within the Tustin Legacy project 4 Currently the property is tax exempt because of City ownership The property will lose its tax exempt status upon conveyance of the property to the Developer and will be taxed accordingly 5 The Developer will pay an annual Community Facilities District (CFD), known as Tax B not to exceed 0 15 percent of the assessed value of the property escalated at 2 0 percent annually The Tax `B' CFD proceeds will be used for essential services and maintenance within Tustin Legacy The Developer has elected to pay for the Tustin Legacy Fair Share Infrastructure Obligation without the use of Tax A which is an alternative method of funding capital improvements within Tustin Legacy 6 The City's transaction costs are borne by the Developer 7 The applicant has paid the required application fees for DA 2012 -001, CP 2012 002, DR 2012 -004, Density Transfer Density Bonus and PM 2012 136 ENVIRONMENTAL 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 An environmental checklist was prepared for the proposed project that concluded no additional environmental impacts would occur from approval of the project 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 City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002, DR 2012 004 Density Transfer Density Bonus, and PM 2012 136 Page 4 APPROVAL AUTHORITY In 2010, the Tustin City Council approved the Tustin Legacy Disposition Strategy for the Former Master Developer Footprint for Neighborhoods B, D, E, and G, including Disposition Package 2A within Planning Area 13 of Neighborhood D Pursuant to an extensive developer selection process The Irvine Company was selected to develop the site and on June 19 2012 an Exclusive Negotiation Agreement (ENA) was executed The Irvine Company and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -001 MCAS Tustin Specific Plan Section 4 2 9 requires a Development Agreement for all private development at Tustin Legacy in accordance with Section 65864 et seq of the Government Code and Sections 9600 to 9619 of the Tustin City Code 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 13 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 13 MCAS Tustin Specific Plan Section 3 2 3 permits the transfer of residential units (density transfer) between parcels subject to review and approval 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 Tustin City Code Section 9321d authorizes the submission of an application for Parcel Map subject to review and approval On March 15, 2011, the Tustin City Council adopted Resolution No 11 20 establishing the Tustin Housing Authority pursuant to California Housing Authorities Law (Health and Safety Code section 34200, et seq ), On January 17 2012, City Council adopted Resolution No 12 -08 stating that the Housing Authority would assume all rights powers, assets, duties and obligations associated with the housing activities of the former Redevelopment Agency and authorizing the City Manager to take such other and further actions, and sign such other and further documents, as are necessary and proper to implement Resolution 12 -08 The above entitlements require consideration by various Tustin authorities However final determination of multiple applications may be deferred to the highest level of review authority In this case, the Tustin City Council may approve, deny, or conditionally approve the project BACKGROUND On February 3 2003, the Tustin City Council adopted the MCAS Tustin Specific Plan to establish development regulations and procedures for reuse of the former Marine Corps Air Station (MCAS) Tustin The MCAS Tustin Specific Plan has been formally amended eight times since its original adoption The document can be viewed at the Community Development Department's web page http. / /www.tustinca orq /departments /commdev /index html #planningZoning City Council Report November 6 2012 DDA 2012 001 DA 2012 001, CP 2012 002, DR 2012 004 Density Transfer Density Bonus and PM 2012 136 Page 5 After termination of the Disposition and Development Agreement (DDA) and Development Agreement with Tustin Legacy Community Partners for the Master Developer Footprint in the summer of 2010 the Tustin City Council approved the Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B D E and G (shown at right) The Disposition Strategy included the implementation of refinements and /or modifications to the MCAS Tustin Specific Plan to support development activities anticipated over the next economic cycle The document can be viewed at the City's Tustin Legacy web page http. / /www tustinca.orq/ departments /citymanager /tustinlegacy html The approved Disposition Strategy provided that the City would assume an executive role in marketing early disposition packages or parcel groupings within the Master Developer footpnnt (shown at right) including Disposition Site 2A within MCAS Tustin Specific Plan Planning Area 13 of Neighborhood D at Tustin Legacy for apartment development (pictured at right) Disposition Package 2A is a 21 735 acre parcel for multi - family apartment development Following the City's completion of an extensive screening process The Irvine Company was selected to develop the site and on June 19 2012, an Exclusive Negotiation Agreement (ENA) was executed The ENA requires The Irvine Company to proceed the project and to enter into a Disposition and Development Agreement (DDA) and Development Agreement (DA) that would lead to the acquisition and development of the proposed project by Legacy Villas LLC, a Special Purpose Entity formed by the Irvine Company The proposed entitlements are consistent with the requirements of the ENA Location Disposition Package 2A consists of 21 735 acres (gross) within Planning Area 13 of Neighborhood D, MCAS - Tustin Specific Plan (Tustin Legacy), bounded by future Warner Avenue on the north future Park Avenue on the south and existing Tustin Ranch Road on the east (See Attachment A) with entitlements for General Plan Designation MCAS Tustin Specific Plan (MCAS) Zoning Planning Area 13, Neighborhood D — MCAS Tustin Specific Plan (SP 1) Existing Land Use Vacant City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002, DR 2012 004, Density Transfer Density Bonus and PM 2012 136 Page 6 DISCUSSION The Irvine Company is requesting City consideration of their submitted development proposal for the 21 735 acre Disposition Package 2A parcel (shown at right) The Irvine Company proposal includes the development of 533 multiple family apartment homes, including 37 moderate - income units and 496 market -rate units, at a density of approximately 24 5 units per acre and a complete accompanying set of amenities The proposed project is governed by the MCAS Tustin Specific Plan Tustin City Code and various Government Codes and the ENA The Irvine Company has submitted applications to the Community Development Department for Development Agreement (DA) 2012 001 Concept Plan (CP) 2012 002 Design Review (DR) 2012 -004, Density Transfer 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) that if approved requires City Manager and Executive Director execution of a Housing Covenants and Regulatory Agreement and Parcel Map (PM) 2012 -136, required for the proposed development of Tustin Legacy Disposition Package 2A at Tustin Legacy Various City codes and regulations require the entitlements to be considered by a variety of Tustin authorities including the Director of Community Development, Zoning Administrator Planning Commission and City Council However final determination of multiple applications related to a single project may be deferred to the highest level of review authority On October 9 2012 the Tustin Planning Commission considered the proposal and adopted Resolution No 4206 recommending that the Tustin City Council approve the proposed project, as conditioned The Tustin City Council may approve deny, or conditionally approve the project L q ,, -, 1.0,p 4a i s ,• . i Y Jd ,i. • ! s� Ot a au t ia, J4, ",' 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"" '`f 0 l'' ,Jt f ' it • ' A .. ..N" .1 yt_ a Disposition and Development Agreement In 2010, the Tustin City Council approved the "Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B D E, and G The Strategy divided the site into parcel groupings or "Disposition Packages located adjacent to existing development and major infrastructure investments within Tustin Legacy including Tustin Ranch Road The Strategy identified four Early Opportunity sites including Disposition Packages 2A and 1A -North (shown on next page) both are apartment uses City Council Report November 6, 2012 DDA 2012 001, DA 2012 001 CP 2012 002 DR 2012 004, Density Transfer Density Bonus and PM 2012 136 Page 7 On June 19, 2012 after a lengthy evaluation and selection process, the City Council entered into an Exclusive Agreement to Negotiate (ENA) with The Irvine Company for Disposition Package 2A and 1A North, with the acknowledgement that St Anton Partners (the selected developer of Disposition Package 1A- North) was determined to be an eligible assignee by The Irvine Company for Disposition Package 1A -North an affordable housing project Because of the manner in which each project is financed a Disposition and Development Agreement (DDA) for each parcel is being provided to City Council for consideration The negotiating period in the DDA is 150 days 16, 2012, unless extended by mutual consent of both parties The DDA will require the development of the 21 735 -acre Disposition Package 2A for 533 multiple family apartment homes including 37 moderate - income units and 496 market rate units at a density of approximately 24 5 units per acre and a complete accompanying set of amenities The proposed project is governed by the MCAS Tustin Specific Plan Tustin City Code and various Government Codes and the DDA which will terminate on November Based on direction from the City Council staff has followed the general principals outlined below for the proposed DDA • The terms and conditions of conveyance include performance measures such as construction commencement and completion dates • The property will be conveyed at not less than Fair Market Value • The property will be conveyed in an "as -is where is -and with all faults" condition • The development and construction of the project would be at no cost or expense to the City • The developer will be responsible for paying Tustin Legacy Backbone Infrastructure Program costs • The developer will be responsible for local infrastructure costs • The City will retain certain special rights including covenants for affordable housing • The City's risk as the seller of property is limited • The City will retain certain rights and remedies in the event that the Developer fails to perform as specified in the DDA, including the right to repurchase The DDA requires the Developer to perform the following • Construct a market rate type apartment community containing 533 units of which the 37 units will be leased as affordable units to those persons meeting the standards for Moderate Income in Orange County The Developer will enter into a Housing Agreement with the City to ensure compliance with City requirements An affordable housing covenant will be placed on the property for a term of 55 years City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004, Density Transfer Density Bonus and PM 2012 136 Page 8 • All on -site vertical construction must be completed within 36 months of building permits being issued by the City • Developer will be responsible for the construction of offsite improvements as follows o Warner Avenue from Tustin Ranch Road to Legacy Road o Park Avenue from Tustin Ranch Road to Legacy Road o Legacy Road from Park Avenue to Warner Avenue o Barranca Parkway improvements including an additional travel lane and storm drain improvements from Tustin Ranch Road to Aston Avenue Conveyance of the property, which is anticipated in April 2013 is dependent on the following significant events or closing conditions occurring In no event will the close of escrow occur later than twelve (12) months following execution of the DDA • The Developer receiving a Development Agreement (DA) prior to or concurrent with City approval of the project • The Developer or Developer's Affiliate (The Irvine Company) successfully concludes their Due Diligence process within 60 days from the execution of the DDA • The Developer provides a Financing Plan certifying the ability to develop the property as proposed in the DDA • The Developer successfully receiving full entitlements to develop the Disposition Package 2A as described in the DDA • The City obtaining environmental clearances from Department of Toxic Substances Control (DTSC) for remediation activities currently being remediated on the site • The City forming a Community Facilities District within the former Master Developer Footprint • The City shall have dedicated the roadways accessing Disposition Parcel 2A St Anton the proposed developer for 1A -North was vetted by The Irvine Company prior to the proposal process and also by City staff during the evaluation and selection process Based on performance to date St Anton has demonstrated the ability as a developer and the proven financing resources to develop 1A -North St Anton will use a combination of tax credits and tax exempt bonds that are privately placed with selected investors and financial institutions However in the event that the City and St Anton (1A North) fail to close within fifteen (15) months following the execution of the DDA the City and the developer (Villa Legacy LLC) will work in good faith to find a suitable replacement affordable housing developer for 1A North The proposed development and DDA respond to all City objectives and goals established through the Request for Proposal process the Disposition Strategy, the MCAS Tustin Specific Plan and the approved ENA The benefits to be derived from the project are numerous and will have long lasting positive impacts to the City and community The financial commitments by the developer have been fully evaluated and the DDA protects the interests of the City Resolution No 12 100 has been prepared in support of City Council consideration of DDA 2012 001, a copy of which is on file with the Office of the City Clerk subject to any non - substantive modifications as may be determined necessary as may be approved by the City Manager's office, or as recommended by the City's special counsel or the City Attorney In addition staff is also recommending that the City Manager be authonzed to take such actions and execute such documents and instruments as deemed necessary or desirable to implement City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002, DR 2012 004 Density Transfer Density Bonus and PM 2012 136 Page 9 the terms of the DDA and all attachments to the DDA and other documents as necessary and upon satisfaction of all conditions and obligations of the Developer thereto and pursuant to the DDA, to transfer the subject site to the Developer Development Agreement The lack of certainty in the approval of development projects can escalate the cost of housing and discourage investment and comprehensive planning Approval of a Development Agreement provides assurance to a project applicant and to the approving agency that upon approval of the project the project may proceed in accordance with existing policies, rules and regulations, and subject to conditions of approval and also ensures that the City's desires, objectives goals and policies are fulfilled In addition, MCAS Tustin Specific Plan Section 4 2 9 requires adoption of a development agreement for all private development at Tustin Legacy City staff and The Irvine Company have agreed to the proposed Development Agreement (DA) 2012 -001 for the proposed project The DA supports implementation of DDA 2012 001 The DA includes, but not be limited to the following provisions • The term of DA 2012 001 will commence on the effective date and will continue for a term of five (5) years thereafter unless the term is terminated, modified or extended by circumstances set forth in DA 2012 001 (with the exception of the affordability component which shall last for a term of 55 years) • The permitted use of the property, the density and intensity of use maximum height and size of proposed buildings the design, improvement and construction standard and specifications applicable to the development of the property and provisions for the reservation and dedication of land for public purposes, as set forth in the DDA and Existing Land Use Regulations which includes the City's General Plan Tustin City Code MCAS Tustin Specific Plan, and all other ordinances, resolutions, rules and regulations of the City governing the development and use of the property remain in effect as of the effective date of the DA • The Developer shall have a vested right to carry out and develop the Property in accordance with the DDA, Development Plan Existing Land Use Regulations approved entitlements and the provisions included in DA 2012 -001 • The timing of development as set forth in the DDA • Construction of infrastructure and public facilities as set forth in the DDA • Annual review of Developer's performance • Agreement by the Developer to indemnify defend, and hold harmless the City from any and all actions, suits, claims, liabilities etc • Agreement by the Developer to 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 City Council Report November 6 2012 DDA 2012 001 DA 2012 001, CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 136 Page 10 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 State Govemment Code Section 65867 5 requires that a Development Agreement be approved by ordinance, which is an act solely reserved to the Tustin City Council based upon the following findings that the proposed development (a) 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) (b) Is compatible with the uses authorized in district in which the real property is located (Planning Area 13) 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 37 affordable apartment units and 496 market rate 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 Ordinance No 1422 has been prepared to support City Council approval of the requested Development Agreement ■i■■ _1 lI as IN MO II 1111 IUI IIII! Building Al City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer Density Bonus, and PM 2012 136 Page 11 Concept Plan 2012 002 /Design Review 2012 004 The MCAS Tustin Specific Plan requires all projects proposed within Planning Area 13 to obtain City Concept Plan and Design Review approval The Concept Plan process is intended to permit a developer to obtain early input on a project's design, site layout, etc prior to creating more detailed plans that would be subject to Design Review However, the MCAS Tustin Specific Plan permits a developer to concurrently submit a Concept Plan and Design Review application The project's compliance with the City s Concept Plan and Design Review requirements is discussed below Concept Plan 2012 -002 The proposed project is a medium high density apartment project that has incorporated Italianate design elements that includes technically sophisticated horizontal design elements and colors that visually reduce the scale of the structure to a residential pedestrian level, add warmth, and increase the residential feel of the project The project also includes a resort quality pool and spa facility, fitness center business center, leasing offices and other satellite resident amenities located throughout the apartment community The project has sufficient access to surrounding public and private roadways which the developer has agreed to construct as part of the DDA View of Front Elevation Building A2 The project compiles with the requirements of the Tustin City Code and MCAS Tustin Specific Plan (except as authorized by any approved Concessions and Incentives discussed later in this report), and the following MCAS Tustin Specific Plan Concept Plan review criteria Specifically, the proposed project depicts • Continuity and adequacy of all circulation systems such as roads access points, trails pedestrian ways and other infrastructure systems needed to serve the project, • Continuity and design quality of architecture and renovations proposed as well as landscape and hardscape theme and treatments • 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 the 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 City Council Report November 6, 2012 DDA 2012 001, DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 136 Page 12 developments in Chapter 3), • 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 • Compliance with other Specific Plan provisions (Note project compliance with MCAS Tustin development requirements is documented on the attached Land Use Fact Sheet provided as Attachment B except as identified within the Concessions and Incentives" section of this report) Design Review 2012 -004 The proposed project includes • Six 3 -story buildings and eight, 4 story buildings totaling 533 apartment units • Several ancillary buildings including a community recreation building, carports, etc • 342 1- bedroom units (589 -766 square feet) • 191 2 bedroom units (928 -1,171 square feet) The Commercial Core area of Planning Area 13 in Neighborhood D of Tustin Legacy is intended to be developed as a very urban place with taller commercial, office, and residential structures oriented toward the streets Consequently, the proposal's 4 -story structures are oriented along the perimeter of the site facing the adjacent streets and sidewalks with the 3 -story structures, pool and common area oriented in the center of the site The juxtaposition of the 4 -story buildings along the site s perimeter against the 3 story central structures creates visual interest in the buildings and views of the site utilizing a variety of horizontal and vertical changes in plane but also creates an inviting and peaceful central living space, intentionally placed apart from the surrounding urban uses and activities The project has Italianate design elements including concrete roof tiles earth tone stucco, a variety of aesthetic enhancements including window treatments balconies cornices, trim elements, and incorporating varied colors, materials and finishes The project is proposed to utilize two driveway access points one from the future Park Avenue and one from the future Warner Avenue 1,062 parking spaces are being provided including 724 covered parking spaces The proposed project's design satisfies the following general architectural and site design principles in that • The buildings define and relate to the street edge with architecture to face the streets • The buildings frame and define public space with an especially strong relationship between the building and street • The architecture is technically sophisticated in detailing • There is a rich palette of natural materials and textures City Council Report November 6, 2012 DDA 2012 001, DA 2012 001, CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 -136 Page 13 • The architecture proposes visually interesting facade treatments with distinctive architectural elements and design details • The project utilizes varied setbacks, projections roof lines, windows and reveals, and elements that minimize the impact of the building mass • The buildings are designed with traditional forms, accented by unique architectural shapes and details • The buildings reflect high quality design through the incorporation of coordinated architecture utilizing elements, materials and colors that complement the relaxed informal style • 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 • The buildings utilize varied building heights • Building facade articulation is implemented Budding B In addition, MCAS Tustin Specific Plan Section 3 6 2 J identifies the following development guidelines for Planning Area 13 (Disposition Package 2A) as follows 1 View windows into the Planning Area from Warner Avenue and Tustin Ranch Road are incorporated into the site planning for the project 2 Creative site planning is accomplished for this site given its prominent location within the Specific Plan Careful consideration has been given to building site location, attention to views, relationships to surrounding uses and open spaces The project complies with the requirements of the MCAS Tustin Specific Plan (except as authorized by any approved Concessions and Incentives discussed later in this report) In addition, the proposed project s location, size, architectural features and general appearance is 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 City Council Report November 6, 2012 DDA 2012 001, DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 136 Page 14 (4) Type and pitch of roofs (5) Size and spacing of windows doors and other openings (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, community gates are proposed for the project Staff believes that the use of gates for this project is supportable since the project is of a higher density, is in close proximity to the District at Tustin Legacy, and surrounded by streets on all sides A condition of approval has been included to ensure Police and Fire personnel ease of access Section 3 13 1 G of the MCAS Tustin Specific Plan provides specific design criteria that must be considered before approving a community gate which staff believes have been met by the proposed project "Gates which limit or control access to parking areas require special consideration as their design can significantly impact the parking demand and usage and the vehicular circulation on a site Gates shall be designed in accordance with City standards and guidelines and shall require approval through the Design Review process The applicant shall submit to the City a plan addressing the following issues 1 Type and operation of the gate including location of visitor call box 2 Adequacy of vehicle stacking area at gate including vehicle turn - around area 3 Effect of gate on parking usage and distribution on -site 4 Effect of gate on parking for surrounding or adjacent areas 5 Effect of gate on street operations at the entrances to the gated street The applicant has submitted to the City a plan that adequately addresses the above gate - related issues (see gate design study provided as Attachment 2 of proposed Resolution No 12- 95) Density Transfer The Request for Proposal (RFP) circulated by the City for the Disposition Package 2A and 1A- North sites specifically required development proposals to include the certain number of affordable units identified below RFP ALLOCATION 1A-North 2A Totals Very Low 35 53 88 Low 20 53 73 Moderate 50 51 101 Sub Total 105 157 262 Market 120 376 496 Total 225 533 758 City Council Report November 6 2012 DDA 2012 001 DA 2012 001, CP 2012 002 DR 2012 004 Density Transfer Density Bonus, and PM 2012 136 Page 15 The proposed project requests City Council approval of a density transfer The Irvine Company, LLC has worked with St Anton Partners, LLC (a respondent - developer approved by the City of Tustin to develop 225 apartments within Disposition Package 1A -North in Planning Area 15 Neighborhood G 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 The total proposed allocation of units for Disposition Packages 1A -North and 2A 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 The Irvine Company has extensive experience owning and operating large apartment communities Staff believes that the currently proposed Density Transfer is an innovative approach to providing a significant number of affordable units at Tustin Legacy Density Transfers may only be approved by the Tustin City Council Consequently staff is recommending that the City Council approve the requested Density Transfer 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 City Council approval of Resolution No 12 -93 would authorize the Tustin City Manager to execute the Affordable Housing /Regulatory Agreement on behalf of the City (Attachment H) Density Bonus, Concessions and Incentives The Irvine Company and St Anton Partners are cumulatively proposing the development of 262 Very Low, Low, and Moderate Income affordable units representing 46% of the total proposal (568 units pre - Density Bonus) and 306 market -rate units Pursuant to state density bonus law (California Government Code Section 65915(1)) the applicants have requested City of Tustin approval for 190 density bonus units as summarized below City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002, DR 2012 004 Density Transfer Density Bonus and PM 2012 136 Page 16 MCAS Tustin Specific Plan Section 3 6 2 1 requires the development of affordable housing units within Planning Area 13, including Disposition Package 2A The Specific Plan currently requires 196 affordable units within Neighborhood D The proposed project is the first development within the Neighborhood D and proposes a significant portion (157 units) of the 196 -unit requirement (Note 120 affordable units /120 market -rate units are proposed to be exchanged between Disposition Package 1A North and Disposition Package 2A respectively) If the current proposal is approved future development projects in Neighborhood D would be required to address the remaining 39 -unit affordable housing requirement Affordable housing units are also required to be reasonably dispersed and located in attached projects only In addition affordable units must be compatible with the design and use of market rate units in appearance use of materials, and finished quality As noted previously an Affordable Housing Covenant and Regulatory Agreement is required to ensure that the affordable units remain available to low- income households for a minimum of 55 years Tustin City Council approval of the previously discussed Density Transfer request would result in 120 affordable units being constructed at Disposition Package 1A -North The 37 affordable units proposed to remain at Disposition Package 2A -North are intended for moderate - income households When considered in the context of the overall reuse project at Tustin Legacy and Planning Area 13 as a whole and given St Anton's expertise in operating large affordable communities for Disposition Package 1A -North staff recommends that the proposed project should be supported Density Bonus California Government Code Section 65915(1) established regulations concerning the granting of a density bonus, and associated incentives and concessions in order to eliminate zoning constraints or restrictions that inhibit the production of affordable housing In compliance with Section 65915(1) the proposed project is also subject to Tustin City Code Section 9121(a) which states The City shall grant one (1) density bonus , and a concession(s) or incentive(s) when an applicant seeks and agrees to construct [an affordable] housing development " Tustin City Code Section 9122(1) provides a formula for calculating the amount of density bonus to which an applicant is entitled which varies by the percentage of affordable housing units proposed However Tustin City Code Section 9122 authorizes the City to grant a maximum density bonus only up to 35 percent The formula calculation for the proposed density bonus is summarized below St Anton /Irvine Company Proposal Type Proposed Very Low 88(16 %) Low 73 (13 %) Moderate 101 (18 %) Market 306 (53 %) Total 568 Density Bonus Units 190 Grand Total 758 MCAS Tustin Specific Plan Section 3 6 2 1 requires the development of affordable housing units within Planning Area 13, including Disposition Package 2A The Specific Plan currently requires 196 affordable units within Neighborhood D The proposed project is the first development within the Neighborhood D and proposes a significant portion (157 units) of the 196 -unit requirement (Note 120 affordable units /120 market -rate units are proposed to be exchanged between Disposition Package 1A North and Disposition Package 2A respectively) If the current proposal is approved future development projects in Neighborhood D would be required to address the remaining 39 -unit affordable housing requirement Affordable housing units are also required to be reasonably dispersed and located in attached projects only In addition affordable units must be compatible with the design and use of market rate units in appearance use of materials, and finished quality As noted previously an Affordable Housing Covenant and Regulatory Agreement is required to ensure that the affordable units remain available to low- income households for a minimum of 55 years Tustin City Council approval of the previously discussed Density Transfer request would result in 120 affordable units being constructed at Disposition Package 1A -North The 37 affordable units proposed to remain at Disposition Package 2A -North are intended for moderate - income households When considered in the context of the overall reuse project at Tustin Legacy and Planning Area 13 as a whole and given St Anton's expertise in operating large affordable communities for Disposition Package 1A -North staff recommends that the proposed project should be supported Density Bonus California Government Code Section 65915(1) established regulations concerning the granting of a density bonus, and associated incentives and concessions in order to eliminate zoning constraints or restrictions that inhibit the production of affordable housing In compliance with Section 65915(1) the proposed project is also subject to Tustin City Code Section 9121(a) which states The City shall grant one (1) density bonus , and a concession(s) or incentive(s) when an applicant seeks and agrees to construct [an affordable] housing development " Tustin City Code Section 9122(1) provides a formula for calculating the amount of density bonus to which an applicant is entitled which varies by the percentage of affordable housing units proposed However Tustin City Code Section 9122 authorizes the City to grant a maximum density bonus only up to 35 percent The formula calculation for the proposed density bonus is summarized below City Council Report November 6 2012 DDA 2012 001 DA 2012 001, CP 2012 002 DR 2012 004 Density Transfer Density Bonus, and PM 2012 136 Page 17 Proposal Formula Calculation 161 Very Low /Low Income 120% for first 10% Units _ 568 total units = 28 3% + 1 5% for each additional 1% or 29% (rounded up) afford Max 35% 20% + 29% (19% X 1 5 %) = 49% Maximum permitted = 35% MCAS Tustin Table 3 2 indicates that Neighborhood D is authorized for up to 891 medium -high density residential units (16 -25 dwelling units per acre) while the Irvine Company project in Planning Area 13 is authorized for 376 medium -high density residential units St Anton has requested a Density Bonus of 33 units and The Irvine Company has requested a density bonus of 157 units (cumulatively a 33% density bonus) 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 Concessions and Incentives As previously noted, the proposed project is subject to Tustin City Code Section 9121(a) which states The City shall grant one (1) density bonus and a concession(s) or incentive(s) when an applicant seeks and agrees to construct [an affordable] housing development " Incentives and concessions are also intended to facilitate the development of affordable housing by eliminating zoning constraints or restrictions etc that inhibit affordable housing Incentives or concessions may include a reduction of site development standards or a modification of zoning code requirements or architectural design requirements including, but not limited to • Reduced minimum lot size • Reduced minimum setbacks • Reduced minimum street standards such as reduced minimum street width • Increased maximum lot coverage • Increased building height • Reduced ratio of vehicular parking spaces that would otherwise be required • Other regulatory incentives or concessions proposed by the applicant or the City that result in identifiable, financially sufficient and actual cost reductions Tustin City Code Section 9123b provides a formula for calculating the number of concessions and incentives that may be granted to a proposed project Pursuant to Section 9123b, any proposal that includes over 15% Very Low Income units may request up to the three (3) incentives The cumulative project proposes to construct 88 Very Low Income units out of 568 total units (16 percent rounded up) which qualifies the project for three (3) incentives /concessions Also, Tustin City Code Section 9125 permits the City Council to grant additional assistance to ensure that the development of affordable housing is facilitated including the granting of additional incentives City Council Report November 6 2012 DDA 2012 001, DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 136 Page 18 Concessions and incentives are being requested by St Anton Partners for development of 225 affordable units at Disposition Package 1A -North The Irvine Company is requesting only one concession or incentive for the project proposed at Disposition Package Site 2A, as follows Development Regulation Authorization to 1 Increase the number of units served by a private "loop" drive (MCAS Tustin Section 2 5 2 B 8 b) beyond the current limit of 87 units Resolution 12 93 has been prepared to support City Council approval of the requested Density Bonus, Concessions and Incentives with a condition that St Anton Partners and The Irvine Company enter into an Affordable Housing Agreement and Regulatory Agreement with the City of Tustin to ensure availability of the 225 and 37 affordable apartment units (respectively) for 55 years Parcel Map 2012 -136 Section 66426 of the Subdivision Map Act requires a parcel map for proposed divisions of land containing four or Tess parcels The Irvine Company is proposing to reduce the parcel configuration of Disposition Package 2A from four parcels to two parcels and has submitted Tentative Parcel Map 2012 -136 for City action The City's Engtneenng Division has reviewed Parcel Map 2012 -136 and determined that it is technically correct The City of Tustin has established standards for determining land requirements for future park sites within the Conservation /Open Space /Recreation Element of the General Plan and in Tustin's City Code For typical residential developments, a developer has the option of dedicating parkland, providing an equivalent value of park improvements, and/or paying in lieu fees based on the formulas contained in the City Code However the City of Tustin has previously obtained all of the property necessary for future community and neighborhood parklands through conveyance from the federal government following closure of the base Therefore, as a condition of approval for a final tract map or parcel map, a developer will typically be required to pay fees or provide park improvements for the conveyed parkland, in accordance with the Tustin City Code or improvements as may be negotiated pursuant to a Disposition and Development Agreement The Disposition and Development Agreement between the City of Tustin and The Irvine Company will include a requirement for the applicant to fund its Fair Share Contribution of the Tustin Legacy Backbone Infrastructure Program, including any park related fees Review by Outside Agencies In accordance with Section 66453 of the California Government Code (Article 3 of the Subdivision Map Act) and Tustin City Code Section 9321e the Tustin Community Development Department transmitted a copy of proposed Parcel Map 2012 -136 to affected public agencies and utilities for review and/or comment on August 28, 2012 Responses were due back to the City by no later than 15 days of receipt Pursuant to Tustin City Code Section 9321e1, "if a written report is made by an agency or utility, such report may be returned to the City within fifteen (15) days of receipt of the proposed tentative map In the event that an agency or utility fails to respond within the fifteen (15) day period, such City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus and PM 2012 136 Page 19 failure to respond shall be deemed approval of the proposed subdivision by the agency or utility The City of Tustin received five letters of comment (see Attachment E) Table 1, below, identifies the agencies that responded to the City's transmittal within and outside the time limitations established by the Tustin City Code Staff has prepared responses to each of the issues identified above as follows Public Agency Rcvd Within Deadline Comment City Response California Department of Toxic Substances Control (Rcvd 9/11/12) Provided reminder of past military use of subject property and offered assistance if grading or construction activities were to identify previously unknown contamination The comment is unrelated to the subject Parcel Map 2012 136 However, the Request for Proposal (RFP) used by the City of Tustin to advertise developer interest in the property fully disclosed the historic military use of the property In addition, any deed conveyed from the City will disclose the past military use of the property and Navy assurances that the property is suitable for use as proposed etc The property is being conveyed As Is/Where Is" with a requirement that the developer carry suitable environmental insurance indemnifying the City and ensuring cleanup in the event that previously unknown soil or water contamination is discovered The Department of Navy is also required to perform additional cleanup if military related contamination is discovered No additional action is necessary for City action on PM 2012 136 Rcvd After Deadline Tustin Unified School District (Rcvd 9/20/12) Indicated that 150 K 12 students would be generated that will impact current facilities in the District The comment is unrelated to the subject Parcel Map 2012 136 The Final EIS /EIR, Addendum and Supplemental recognized that the increase in population occurring as a result of the adoption of the MCAS Tustin Specific Plan would result in K 12 students and demands upon TUSD schools Further the Specific Plan identifies three school sites that are to be conveyed at no cost to the TUSD (a 40 acre high school in Neighborhood D a 10 acre elementary school in Neighborhood G and a 10 acre elementary school near Red Hill Avenue (now constructed but not used as an elementary school) The Final EIR concluded that State legislation enacted in 1998 (SB 50) established developer paid fees to mitigate the impact of development that are collected at the time of permit issuance In addition, an alternative financing mechanism would be the Districts establishment of a Community Facilities District No additional mitigation is necessary City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus 2012 136 Page 20 and PM City of Irvine (Rcvd 9/28/12) Requested detailed information pertaining to roadway design and construction a traffic analysis, and additional details concerning the proposal The comments are unrelated to the subject Parcel Map 2012 136 Responses to specific comments are provided as follows Comments 1, 3 — See staff report 2 — Travel lanes and bike lanes are standard designs approved by the City of Tustin 4 — The Warner Avenue South extension (Tustin Ranch to Red Hill) is expected by the time Average Daily Trips at Tustin Legacy reach 109 800 Tustin Ranch Road (from Walnut to Warner) is anticipated to be completed by September 2013 5 — The proposed project is expected to be completed by 2015 6 — In 2009 the City of Tustin provided the City of Irvine preliminary planning information originally prepared by the Tustin Legacy Partners (the previous master developer for Tustin Legacy) This information was used by the City of Irvine in developing its IBC Vision Plan Traffic Study The information provided to the City of Irvine for use in the IBC Vision Plan Traffic Study was the most up to date land use data at that time Subsequent to that date the MCAS Tustin Specific Plan has been amended three times by Specific Plan Amendment 10 001 11 003 and 2011 04 to include various land use modifications and exchanges and minor text changes and clarifications Each of these amendments were analyzed and determined to be within the scope of the Final EIS /EIR To summarize, neither the TLCP vision plan nor the referenced Specific Plan Amendments increased the overall development potential or residential capacity identified in the MCAS Tustin Specific Plan The proposed development (including Tentative Parcel Map 2012 136) would result in 533 Medium High Density (MHD) residential units within Planning Area (PA) 13 of the MCAS Specific Plan PA 13 allows MHD residential at a density of up to 25 dwelling units per acre The maximum allowable residential uses permitted in PA 13 is 891 MHD units The proposed project which would result in 533 MHD residential units on approximately 21 735 acres is consistent with the MCAS Specific Plan maximum allowable City Council Report November 6, 2012 DDA 2012 001, DA 2012 001 CP 2012 002 DR 2012 004 Density Transfer, Density Bonus, and PM 2012 136 Page 21 Tustin City Code Section 9321 states that the Tustin City Council is solely responsible for approving applications for Parcel Map Resolution No 12 -93 has been prepared for City Council consideration for approval of Tentative Parcel Map 2012 -136 Housing Authority Review and Approval On March 15, 2011, the Tustin City Council adopted Resolution No 11 -20 establishing the Tustin Housing Authority pursuant to California Housing Authorities Law (Health and Safety Code section 34200 et seq ), On January 17, 2012 City Council adopted Resolution No 12 -08 stating that the Housing Authority would assume all rights powers assets duties, and obligations associated with the housing activities of the former Redevelopment Agency and authoring the City Manager to take such other and further actions, and sign such other and further documents, as are necessary and proper to implement Resolution 12 -08 building density It should also be noted that the land uses identified in the IBC traffic analysis represents 9 169 Average Daily Trips (ADT) based upon the MCAS Tustin tnp generation rates The PA 13 trip budget assumes a total of 5 907 ADT from MHD residential uses The proposed project (533 MHD units) represents 3,534 ADT and is well within the PA trip budget originally developed for the MCAS Specific Plan Based on the foregoing, the project does not warrant an additional traffic study 7 See Final Tract Map 17144 8 The westerly continuation of Warner is not a part of this project County of Orange Requested that the project be This matter was fully analyzed in the Final reviewed by the FAA to ensure EIS /EIR The proposed project is (Rcvd 9/28/2012) that the proposed structures do approximately 12 387 feet away from the end not interfere with John Wayne of the runway at John Wayne Airport Pursuant Airport operations to FAR Part 77 13 a sponsor of a project must notify the FAA for construction or alteration greater than height than the 1001 Notice surface which when measured from John Wayne Airport calculates at 12,387 - 100 = 123 feet tall Thus FAA notification is necessary for any structure that is more than 123 feet tail The tallest building proposed for the site is 57 feet tall Consequently FAA review of the project is not required and will not be pursued The Gas Indicated that gas facilities are Acknowledged Company available in the area to serve the project (Rcvd 10/4/2012) Tustin City Code Section 9321 states that the Tustin City Council is solely responsible for approving applications for Parcel Map Resolution No 12 -93 has been prepared for City Council consideration for approval of Tentative Parcel Map 2012 -136 Housing Authority Review and Approval On March 15, 2011, the Tustin City Council adopted Resolution No 11 -20 establishing the Tustin Housing Authority pursuant to California Housing Authorities Law (Health and Safety Code section 34200 et seq ), On January 17, 2012 City Council adopted Resolution No 12 -08 stating that the Housing Authority would assume all rights powers assets duties, and obligations associated with the housing activities of the former Redevelopment Agency and authoring the City Manager to take such other and further actions, and sign such other and further documents, as are necessary and proper to implement Resolution 12 -08 City Council Report November 6 2012 DDA 2012 001 DA 2012 001 CP 2012 002 DR 2012 004, Density Transfer Density Bonus and PM 2012 136 Page 22 The Housing Authority has certain responsibilities for monitoring and enforcing provisions of the City's affordable housing including Affordable Housing Covenants and Regulatory Agreements City Council approval of the proposed project requires The Irvine Company and City of Tustin to execute such an Agreement City Manager execution of the document is authorized by Resolution No 12 -100 Tustin Housing Authority authorization is requested to direct the Executive Director or City Manager to execute the Agreement on behalf of the Tustin Housing Authority Planning Commission Action of October 9, 2012 On October 9, 2012, the Tustin Planning Commission conducted a public hearing and adopted Resolution No 4206 recommending that the Tustin City Council approve the project as conditioned (Attachment J) The project is consistent with the Tustin City Code, MCAS Tustin Specific Plan and the June 19, 2012 Exclusive Negotiation Agreement (ENA) between The Irvine Company and the Tustin City Council .�-. / • Joh Buchanan Elizabeth A Binsack ro m Manager Community Development Director 4, Dana L Ogdon AICP Assistant Director Attachments A Location Map B Land Use Fact Sheet C Submitted Plans and Photographs (enclosed) D MCAS Tustin Specific Plan (not included — see CDD website) E Letters Received from Agencies on PM 2012 136 F Resolution No 12 95 Environmental Analysis Checklist/Evaluation Attachment 1 Noise Study Attachment 2 Gate Design Study G Resolution No 12 100 DDA 2012 001 H Resolution No 12 93 CP 2012 002 DR 2012 004, Density Transfer Density Bonus, Concessions or Incentives PM 2012 136 Exhibit A Conditions of Approval Attachment 1 Housing Covenants and Regulatory Agreement 1 Ordinance No 1422 DA 2012 001 J Planning Commission Resolution No 4206 and approved Minutes Attachment A Location Map a Ana C s ` �E4th St ,5! E 7st St �i,1 i 5 _ c East Tustin Irvine Blvd <°' �P I L401,, ��•� 5 \v, E Edngei Aw 2 E Wamer Ave^ 55 F rc N nQaixh W 1J~` pQ, �P �� y Browning Sppar wts Dais 9 1261 qy� O a s E oyP, �� Tustin Legacy f� Project D ;.,,t, a hur Blvd j Site ro:c -.n ->¢ Lr.a � ,,►a 3`a A" A - Irvine 4 Jabal ,per A V 1T o Amper� bin `h isnr, o a¢ r Location Map a� 261 lyay. 9� \�k�, Pill xa P e rn Ni", a` i1 < Oka i r7 ' r.l a .yah :: ^wmcr Attachment B Land Use Fact Sheet LAND USE APPLICATION FACT SHEET 1. LAND USE APPLICATION NUMBER(S) DR 2012 -004, CP 2012 -002 DA 2012 -001 PM 2012 -136 and Density Bonus 2. LOCATION: Disposition Package 2A Tustin Legacy 3. APN(S):430- 471 -10.11 12 and 13 4 PREVIOUS OR CONCURRENT APPLICATION RELATING TO THIS PROPERTY: The St. Anton Partnf 5. SURROUNDING LAND USES: NORTH: Vacant SOUTH: Vacant EAST: The District Shopping Center WEST: Vacant 6. SURROUNDING ZONING DESIGNATION: NORTF SOUTF EAST: WEST: 7. SURROUNDING GENERAL PLAN DESIGNATION: NORTH: MCAS Tustin Specific Plan SOUTH: MCAS Tustin Specific Plan EAST: MCAS Tustin Specific Plan WEST: MCAS Tustin Specific Plan 8. SITE LAND USE: EXISTING Use: Vacant Zoning: MCAS Tustin Specific Plan General Plan: MCAS Tustin Specific Plan PROPOSED 533 Residential Apartment Units, includina 37 affordable units No Change No Change DEVELOPMENT FACTS: REQUIRED 9. LOT AREA. 946.950 sq. ft.. 10. BUILDING LOT COVERAGE: 100 percent MAX. PERMITTED 11. SITE LANDSCAPING: All areas not utilized REQUIRED 12. OPEN SPACE- 13. PARKING: 14. BUILDING HEIGHT. 15. BUILDING SETBACKS: 79950 REQUIRED 1 039 REQUIRED 150 feet MAX. PERMITTED REQUIRED PROPOSED PROPOSED 21.735 ACRES 42% PROPOSED 27% PROPOSED 273.017 PROPOSED 1 062 PROPOSED 57 feet PROPOSED FRONT: 30 feet (Tustin Ranch Road) 30 feet minimum (Varies) SIDE: 0 feet (Park Avenue) 15 feet minimum (Varies) REAR: 20 feet (Warner Road) 20 feet minimum (Varies) 16. OTHER UNIQUE CONDITIONS ASSOCIATED TO THE PROPERTY (I.E. SPECIAL STUDY ZONES, EASEMENTS, ETC.) None Forms: LandUseApplicationFactSheet Attachment C Submitted Plans and Photographs (Enclosed) Attachment D MCAS Tustin Specific Plan (Not Included — See CDD Website) Attachment E Letters Received From Agencies on PM 2012 -136 Matthew Roddqu" Secretary for Environmental Protection Department of Toxic Substances Control September 11, 2012 Mr. Dana L. Ogdon, AICP Assistant Director Deborah O. Raphael, Director 5796 Corporate Avenue Cypress, California 90630 Tustin Community Development Department 300 Centennial Way Tustin, California 92780 Edmund G. Brown Jr. Governor APPLICATION FOR TENTATIVE PARCEL MAP 2012 -136 TO CONSTRUCT 533 MULTI - FAMILY RESIDENTAIL APPARTMENT HOMES WITH RELATED AMENITIES AT DEVELOPMENT PARCEL 2A, WITH IN THE TUSTIN LEGACY SITE The Department of Toxic Substances Control (DTSC) has received your submitted of the Parcel map for the above - mentioned project. The following project description is stated in your letter: The project involves construction of 533 multi - family residential homes (Medium —High Density Residential) with related amenities at Development Parcel 2A. Based on the review of the submitted document DTSC has the following comments: Parcel 2A where Irvine Company is proposing to build 533 multi - family residential apartments and homes is part of the original Parcel 14, which the Navy transferred to the City of Tustin. This parcel is located south of the south hanger. Two Areas of Concern MWA -19 and TOW -17 received regulatory concurrence and received no further action (NFA). One Former Underground Storage Tank (UST -543) also received NFA. Building 543 is demolished. During grading or other construction activities Irvine Company may encounter additional contamination at Parcel 2A. Irvine Company should identify the mechanism to initiate any required investigation and /or remediation at the site, and the government agency to provide appropriate regulatory oversight. If necessary, DTSC would require an oversight agreement in order to provide oversight. Any additional contamination found should be cleaned up to residential standards before residential development could occur. Sincerely, A Anantaramam Peddada, Project Manager Brownfields Environmental Restoration Program Uni f_iea School Distmicf A Legacy of Excellence in Education 300 South C Street, Tustin, CA 92780 -3695 • (714) 730 -7301 • FAX (714) 731 -5399 • wwvvtust1n.k12.ca.us September 12, 2012 RECEIVED SEP 2 0 2012 Mr. Dana L. Ogdon, Assistant Director COMMUNITY DEVELOPMENT DEPT City of Tustin Community Development Department 300 Centennial Way Tustin, CA 92780 Re: Tustin Legacy Project Tentative Parcel Map 2012 -136 (The Irvine Company) Former MCAS Tustin Dear Mr. Ogdon: Thank you for your letter of August 29, 2012, in regard to tentative parcel map 2012 -136. We appreciate the recent staff discussions regarding alternatives to provide grades K -12 school facilities for generated students within and relating to the build -out of Tustin Legacy. Our concern is that this specific development will generate approximately 150 K -12 students and the impact it will have on our current facilities and the District. Any additional details in regard to this project and any other development(s) that may impact the District in the immediate future would be appreciated. District staff is looking forward to discussing this timely project and other future development(s) at Tustin Legacy. Please feel free to contact us as to any additional information desired. Very truly yours, Ed.D. c: Jeffrey C. Parker, City Manager Tony Soria, Tustin Unified School District Tustin Unified School District Board of Education BOARD OF EDUCATION Jonathan Abelove • Tammie Bullard • Lynn Davis • James Laird • Francine Scinto Community Development City of Irvine, One Civic Center Plaza, PO Box 19575, Wine, California 92623 -9575 September 20, 2012 Mr. Dana L. Ogdon, AICP City of Tustin 300 Centennial Way Tustin. CA 92780 Subject: Tentative Parcel Map 2012 -136 Dear Mr. Ogdon: RECEIVED SEP 28 2012 ,"PN.cityofirvine org (949) 724 -6000 COMMUNITY DEVELOPMENT DEPT Thank you for the opportunity to comment on proposed Tentative Parcel Map 2012 -136 within the Tustin legacy site. The City of Irvine staff has reviewed the project and has the following comments: 1. Provide a Vicinity and Location Map. 2. Show travel lanes and bike lanes including dimensions on each cross section. 3. Include in the Lot Summary the proposed number and type of units on the map. 4. Provide a note on the map stating the construction schedule for Warner Avenue South (Tustin Ranch Road to Red Hill) and Tustin Ranch Road (from Walnut to Warner) 5. Identify when the project will be built out. 6. Based on the latest information, from City of Tustin, provided to the City of Irvine for IBC Vision Plan Traffic Study, this area is TAZ 630 (Tustin Legacy Traffic Analysis Zone) and the associated land use data is 96 DU, 38 TSF of Commercial, 100 TSF of General Office, and 483.28 TSF of Office Park. The analyzed land use mix approved is different than what is being proposed; therefore, please provide a traffic study that analyzes the impact of proposed multi - family residential project for City's review. 7. Delineate the entire stretch of Park Avenue and Tustin Ranch Road in its current condition. 8. Expand the map area to include the westerly continuation of Warner Avenue. iaann Fn rw ncrvri cn onnnn Mr. Dana Ogdon September 20, 2012 Page 2 The City of Irvine requests the opportunity to review and comment on any future tentative maps and master plans for this development to ensure circulation and land use consistency with the approved MCAS Tustin Specific Plan. If you have any questions, please contact Farideh Lyons at (949) 724 -6237 or via e-mail at flyons(aDcityofirvine.org. Sincer ly, d Bill Jacobs, AICP Principal Planner c: Kerwin Lau, Project Development Administrator Sun -Sun Murillo, Supervising Transportation Analyst Farideh Estiri Lyons, Senior Transportation Analyst Tom Perez, Senior Civil Engineer O R A N G E C O U N T Y ' C PublicWorks Our Community Our Commitment. September 26, 2012 Dana L. Ogdon, AICP Assistant Director City of Tustin 300 Centennial Way Tustin, California 92780 RECEIVED SEP 28 2011 DDMMUNl7y D�Ft�PMENT DEFT' Jess A. Carbajal, Director 300 N Flower Street Santa Ana, CA P O Box 4048 Santa Ana, CA 92702 -4048 Telephone. (714) 834 -2300 Fax (714) 834 -5188 NCL 12 -027 SUBJECT: Notice and Copy of Tentative Parcel Map 2012 -136 (The Irvine Company) at Former MCAS Tustin located in the City of Tustin Dear Mr. Ogdon: The County of Orange has reviewed Notice and Copy of Tentative Parcel Map 2012 -136 (The Irvine Company) at Former MCAS Tustin and offers the following comment: John Wayne Airport: The proposed Project will consist of 533 multi - family residential apartment homes with related amenities for the Tustin Legacy site. The Project is located within the Federal Aviation Regulation (FAR) Part 77 Notification Surface and the Obstruction Imaginary Surfaces for 1WA. Prior to the initiation of any construction on the property, the applicant should file FAA Form 7460 -1 with the FAA Regional Office in order for that agency to determine any potential impact by the Project upon navigable airspace surround 1WA. In addition, once building heights are established for the proposed Project, they should be reviewed to ensure that structures erected on the property do not penetrate the conical surfaces for 1 WA. Please feel free to contact the Airport Planning Manager, Kari Rigoni at (949) 252 -5284 or via e-mail at krieoniClocair.com regarding these comments. Sincerely, Michael Balsamo Manager, OC Community Development OC Public Works /OC Planning 300 North Flower Street Santa Ana, California 92702 -4048 Michael. Balsamo(@ocpw.oceov.com cc: Kari Rigoni, John Wayne Airport The Gas Company A Sempra Energy utility - u September 27, 2012 City of Tustin Community Development Department 300 Centennial Way Tustin, CA 92780 Attention: Dana L. Ogdon 1919 S. State College Blvd. Anaheim, CA 92806-6114 RECEIVED OCT 0 4 2012 COMMUNITY DEVELOPMENT DEPT Subject: Environmental Impact Report for Tentative Parcel Map No. 2012 -136 within the Tustin Legacy sit. Thank you for providing the opportunity to respond to this E.I.R. Document. We are pleased to inform you that Southern California Gas Company has facilities in the area where the aforementioned project is proposed. Gas service to the project can be provided from an existing gas main located in various locations. The service will be in accordance with the Company's policies and extension rules on file with the California Public Utilities Commission when the contractual arrangements are made. This letter is not a contractual commitment to serve the proposed project but is only provided as an informational service. The availability of natural gas service is based upon conditions of gas supply and regulatory agencies. As a public utility, Southern California Gas Company is'under the jurisdiction of the California Public Utilities Commission. Our ability to serve can also be affected by actions of federal regulatory agencies. Should these agencies take any action, which affect gas supply or the conditions under which service is available, gas service will be provided in accordance with the revised conditions. This letter is also provided without considering any conditions or non - utility laws and regulations (such as environmental regulations), which could affect construction of a main and /or service line extension (i.e., if hazardous wastes were encountered in the process of installing the line). The regulations can only be determined around the time contractual arrangements are made and construction has begun. Estimates of gas usage for residential and non - residential projects are developed on an individual basis and are obtained from the Commercial - Industrial /Residential Market Services Staff by calling (800) 427 -2000 (Commercial /Industrial Customers) (800) 427 -2200 (Residential Customers). We have developed several programs, which are available upon request to provide assistance in selecting the most energy efficient appliances or systems for a particular project. If you desire further information on any of our energy conservation programs, please contact this office for assistance. Sincerely, Jeannette Garcia Technical Services Supervisor Orange Coast Region - Anaheim (ctrl "r02 dog Attachment F Resolution No. 12 -95 Environmental Analysis RESOLUTION NO. 12 -95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT THE FINAL JOINT PROGRAM MCAS ENVIRONMENTAL IMPACT STATEMENT /ENVIRONMENTAL IMPACT REPORT (MCAS TUSTIN FEIS /EIR), AS AMENDED BY SUPPLEMENT AND ADDENDUM, IS ADEQUATE TO SERVE AS THE PROJECT ENVIRONMENTAL DOCUMENT FOR THE THIRD AMENDMENT FOR DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) 2012 -001, DEVELOPMENT AGREEMENT (DA) 2012 -001, CONCEPT PLAN (CP) 2012 -002, DESIGN REVIEW (DR) 2012 -004, 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), AND TENTATIVE PARCEL MAP (PM) 2012 -136, FOR 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE- INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A, TUSTIN LEGACY (THE IRVINE COMPANY, LLC). AND THAT THE CITY HAS ALTERNATIVELY DETERMINED THAT THE PROPOSED PROJECT IS EXEMPT FROM FURTHER CEQA REVIEW PURSUANT TO GOVERNMENT CODE SECTION 65457. The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That The Irvine Company and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -001, and The Irvine Company has submitted a proper application for DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and Tentative PM 2012 -136 requesting authorization to develop 533 multi - family residential apartment homes, including 37 moderate - income affordable units in compliance with California Government Code Section 65915(1), at Disposition Package 2A, Tustin Legacy, to be implemented by The Irvine Company or its affiliate as may be approved by the City of Tustin. B. That the site is zoned as Planning Area 13, Community Core, Neighborhood D in the MCAS Tustin Specific Plan (SP -1); and designated MCAS Tustin (MCAS) by the Tustin General Plan. In addition, the project City Council Resolution No. 12 -95 Page 2 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 on January 16, 2001, the City of Tustin Certified the Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the disposal and reuse of MCAS Tustin pursuant to, among other things, the MCAS Tustin Specific Plan /Reuse Plan. On December 6, 2004, the City Council adopted Resolution No. 04 -76 approving the 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 for modifications to the MCAS Tustin Specific Plan /Reuse Plan. The FEIS /EIR, Supplement to the FEIS /EIR, and Addendum are collectively referred to as the "Prior Environmental Review." D. That the City prepared an environmental checklist and determined that the proposed project is within the scope of the Prior Environmental Review. 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. (Public Resources Code § 21166; Cal. Code Regs., Tit. 14, §§ 15168, 15162.) The City has therefore determined that no further environmental review is required. E. That 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 exemption does not apply if an event specified in Public Resources Code Section 21166 occurs, unless and until a supplemental environmental impact report is certified. Here, the proposed project implements and is consistent with the MCAS Tustin City Council Resolution No. 12 -95 Page 3 Specific Plan / Reuse Plan. The FEIS /EIR for the reuse of MCAS Tustin pursuant to, among other things, the MCAS Tustin Specific Plan /Reuse Plan, was certified January 16, 2001. And, as set forth above, the City prepared an environmental checklist and determined that none of the events specified in Public Resources Code Section 21166 have occurred. On this basis, the City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. F. That in accordance with the provisions of the California Environmental Quality Act (CEQA), the checklist provided as Attachment 1 to Resolution No. 12 -95 has been considered and found to be complete and adequate prior to approving the project as proposed. G. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. H. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. II. The Tustin City Council hereby finds the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK City Council Resolution No. 12 -95 Page 4 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -95 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6th day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK Attachment 1 COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (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 2A — 533 multi- family residential apartment homes. The proposal requests City of Tustin consideration of Development Agreement (DA) 2012 -001, Concept Plan (CP) 2012- 002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136. 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 2A is a triangular- shaped parcel of 21.735 acres (gross) within Planning Area 13 of Neighborhood D, MCAS- Tustin Specific Plan (Tustin Legacy), bounded by future Warner Avenue on the north, future Park Avenue on the south, and existing Tustin Ranch Road on the east. Project Sponsor's Name and Address: The Irvine Company, LLC c/o Mr. Bryan Austin, Vice President Project Management 550 Newport Center Drive Newport Beach, CA 92660 General Plan Designation: MCAS Tustin Specific Plan Zoning Designation: MCAS Tustin Specific Plan, Community Core, Planning Area 13, which allows Medium -High Density Residential at 16 -25 dwelling units per acre. Project Description: Development Agreement (DA) 2012 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136 for (MCAS Tustin Planning Area 13) for the purpose of developing 533 B. multi - family residential apartment homes including 157 affordable units (53 very low income, 53 low income and 51 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 St. Anton Partners, LLC, an affordable housing provider approved by the City of Tustin to develop Disposition Package lA -North in Planning Area 15, 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: Vacant — MCAS Tustin Planning Area 8, Community Core. East: The District (regional shopping center), Tustin Legacy South/West: Vacant — MCAS Tustin Planning Area 14, Community 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 ❑Population and Housing ❑Geology and Soils ❑Hydrology and Water Quality ❑Air Quality ❑Transportation & Circulation ❑Biological Resources ❑Mineral Resources ❑Agricultural Resources ❑Hazards and Hazardous Materials ❑Noise ❑Public Services ❑Utilities and Service Systems ❑Aesthetics ❑Cultural Resources ❑Recreation ❑Mandatory Findings of Significance C. DETERMINATION: On the basis of this initial evaluation: ❑ I 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: O .. oe—, V Date: D Z y�Dana L. Ogdon,,AAICP, ss stant Director " l- /c- S Date Z- Elizabeth A. Binsack, Community Development Director D. EVALUATION OF ENVIRONMENTAL IMPACTS See Attached EVALUATION OF ENVIRONMENTAL IMPACTS L 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 anew source of substantial light or glare which would adversely affect day or nighttime views in the area? 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? III. AIR OUALITY: 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? ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M 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? t) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? 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? c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside of formal cemeteries? 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: ❑ ❑ ❑ ❑ ❑ ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ 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? VILHAZARDS 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? 0 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 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ 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? Vlll. 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. I) 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? 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? IX. LAND USE AND PLANNING — Would the project a) Physically divide an established community? ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ■ ■ ►,1 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 groundbome 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? XII.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 Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? 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: Fire protection? Police protection? Schools? Parks? Other public facilities? 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? 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? ❑ ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ IK ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ IK ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? 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? XVII. 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 ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ EVALUATION OF ENVIRONMENTAL IMPACTS DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) 2012 -001, DEVELOPMENT AGREEMENT 2012 -001, CONCEPT PLAN 2012 -002, DESIGN REVIEW (DR) 2012 -004, DENSITY TRANSFER, 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), AND PARCEL MAP (PM) 2012 -136 FOR THE PROPOSED DEVELOPMENT OF TUSTIN LEGACY DISPOSITION PACKAGE 2A - 37 MODERATE UNIT INCOME UNITS AND 496 MARKET RATE UNITS (FOR A TOTAL OF 533 RESIDENTIAL APARTMENT UNITS) 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 approximately 21.735 acres (gross) located within the MCAS Tustin Specific Plan boundaries affecting only Disposition Package 2A, which is an irregular parcel within Planning Area 13 of Neighborhood D. The project site is bounded by future Warner Avenue on the north, future Park Avenue on the south, and existing Tustin Ranch Road on the east. The proposed development of Tustin Legacy Disposition Package 2A is to construct 533 multi- family residential apartment homes ('Project'). The proposal requests City of Tustin consideration of Disposition and Development Agreement (DDA) 2012 -001, Development Agreement (DA) 2012 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136. 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 2 The Project proposes to develop 533 multi - family residential apartment homes including 157 affordable units (53 very low income, 53 low income and 51 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 St. Anton Partners, LLC, an affordable housing provider approved by the City of Tustin to develop Disposition Package 1A -North in Planning Area 15, 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 proposed use is consistent with the approved Specific Plan. The final propose 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 13 allows Medium -High Density Residential at 16 -25 dwelling units per acre. The Project proposes a density of 25 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 this 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. The following information provides background support for the conclusions identified in the Environmental Analysis Checklist. 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 3 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? The proposed development of Disposition Package 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 development of residential apartment units within Planning Area 13 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 it relates to Warner Avenue, Park Avenue, and existing Tustin Ranch Road on the east. 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. 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 !:f:Yb11M Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 4 Tustin City Council in the FEIS /EIR, Addendum and Supplement; and applicable measures 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 MCAS Tustin (Page 3 -84, 4 -109 through 114) and Addendum (Page 5 -3 through 5 -8) MCAS 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). The proposed use is consistent with the approved Specific Plan. As documented in the FEIS /EIR, the project site is part of MCAS 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. MitigatiorVMonitoring 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 impacts to farmland were significant and impossible to fully mitigate. A 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 5 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 (Page 3 -37 to 3 -54) MCAS Tustin Specific Plan Tustin General Plan III. 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 within the maximum allowable density of the site (16 -25 dwelling units). Therefore, no significant impact beyond what was analyzed in the adopted FEIS /EIR is anticipated. Although the project is within the maximum density, the project (St. Anton's proposed development of Disposition Site 1A -North and The Irvine Company's proposed development of Disposition Site 2A) is proposing 262 affordable units and qualifies for density bonus and concessions or incentives. 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 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 6 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/Mondoring 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 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 FEIS /EIR, the Supplemental and Addendum for MCAS Tustin. The 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 7 FEIS /EIR determined that implementation of the Reuse Plan and MCAS Tustin Specific Plan (including the proposed project) could impact jurisdictional waterstwetlands 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 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 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. Mitigation/Mon#oring 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) 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 §15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). The proposed use is consistent with the approved Specific Plan. 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 8 It should be noted that 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. Through the Section 106 process, these facilities 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 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. However, no portion of the previously existing blimp landing pads nor the existing blimp hangars are located within the project site boundary. 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: 8826041 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 9 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? • Seismic - related ground failure, including liquefaction? • Landslides? b) Result insubstantial 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 wastewater? The proposed development of Disposition Package 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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. 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 10 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 MCAS 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 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 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 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? Q 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? 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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. 882604 1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 11 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 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 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. 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 -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. VIII. HYDROLOGY AND WATER QUALITY: -Would the project: 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 12 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 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, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? The proposed development of Disposition Package 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 (TMDL) 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 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 13 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 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) 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? The proposed development of Disposition Package 2A would include a total of 533 affordable Medium -High Density residential apartment units (37 moderate unit income units and 496 market rate units) on 21.735 gross acres, at 24.52 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. 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 13, which contemplates the development of 891 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 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 14 development standards for development of the site. The proposed project complies with Planning Area 13's development standards for multiple family residential units as noted in Sections 3.6.2.G of the MCAS Tustin Specific Plan. Although the Project is within the maximum density, when combined with St. Anton's proposed development of Disposition Site 1A -North the two projects collectively propose 262 affordable units and qualify for density bonus and concessions or incentives. 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. 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. Mitigation/Monitoring Required: The proposed project is consistent with the development standards of the MCAS Tustin Specific Plan as identified by the adopted FEIS /EIR. No mitigation is required. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -3 to 3 -17, 4 -3 to 4 -13 and 7 -16 to 7 -18) MCAS 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 8826041 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 15 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 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 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. Mitigation Monitoring Required: No mitigation is required. Sources: Field Observation FEIS /EIR for Disposal and Reuse of MCAS Tustin (Page 3 -91) MCAS 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? b) Exposure of persons to or generation of excessive ground borne vibration or ground borne 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 excessive noise levels? The proposed development of Disposition Package 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 16 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 Attachment 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 noise levels as required by Tustin City Code for residential use. The applicant has also prepared a noise analysis for the project to ensure that the residential units 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. 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 XII. 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? 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 17 The proposed development of Disposition Package 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). Although the project is the maximum density, the project (St. Anton's proposed development of Disposition Site 1A -North and The Irvine Company's proposed development of Disposition Site 2A is proposing 262 affordable units and qualifies for density bonus and concessions or incentives. The proposed use is consistent with the approved Specific Plan, and the number of dwelling units proposed is under the maximum development threshold for Planning Area 13, which contemplates the development of 891 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. Mitigation Mondoring 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). Tustin General Plan 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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. 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 18 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 Planning Area 13 is 891 units. The applicant is requesting approval of 533 units (representing 60% of the total number of units allowed in Planning Area 13). No other residential units have been previously built in Planning Area 13. 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. 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 !:f:Y.r11.11 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 19 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. 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). The proposed use is consistent with the approved Specific Plan. 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, the proposed project includes a request for City approval of Parcel Map 2012- 136. Projects that propose the subdivision of property are subject to the provisions of the Quimby Act and are required to provide in -lieu fees or publicly accessible park space (where approved by the City). In this case, the Disposition and Development Agreement between the City and the developer will require that payment of park in -lieu fees will be collected from the private developer as part of the conveyance transaction process. 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 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 20 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. 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? 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). The proposed use is consistent with the approved Specific Plan, and the number of dwelling units proposed is under the maximum development threshold for Planning Area 13, which contemplates the development of 891 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 882644.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 21 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 Attachment 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 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. 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? 882604.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 22 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 2A would include a total of 533 affordable residential apartment units (37 moderate unit income units and 496 market rate units). 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 improvements on Tustin Ranch Road, Warner Avenue 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. Also, 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 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. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 3 -35 through 3- 46, 4 -32 through 4 -55 and 7 -20 through 7 -21) Reuse Plan and MCAS Tustin Specific Plan (Pages 3 -38 through 3 -54). Tustin General Plan XVII. MANDATORY FINDINGS OF SIGNIFICANCE 882601.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 23 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? 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. MitigatiorVMonitoring Required: The FEIS /EIR previously considered all environmental impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific Plan. Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR and would be included in the project as applicable. 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 882661.1 Evaluation of Environmental Impacts DDA 2012 -001, DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, PM 2012 -136 Page 24 Considerations were adopted for the FEIS /EIR on January 16, 2001 and shall apply to the proposed project, as applicable. 882604.1 Attachment 1 Noise Study W Veneklasen Associates Acv ✓m, - Al Irl °nmronm?r alNose August 8 2012 Irvine Company 550 Newport Center Drive Newport Beach California 92660 Attention Mr Bryan Austin Vice President Apartment Development Subject Tustin Legacy Parcel 2A Tustin, California Exterior Environment and Facade Analysis VA Project #4214 -028 Dear Bryan RECEIVED AUG 06 2012 COMMUNITY DEVELOPMENT DEPT Veneklasen Associates (VA) has completed our noise study of Tustin Legacy Parcel 2A in Tustin California This report represents the results of our findings 1.0 INTRODUCTION This study was conducted to determine the impact of the exterior noise sources on the proposed residential development and to provide mitigation recommendations required to reduce interior and exterior noise levels to acceptable limits as set forth in the City General Plan and California State Building Code Exterior noise levels were predicted at the site Based on these levels interior noise levels were calculated for proposed residential development Several different types of glazing were evaluated and the results are presented in this report The project site is a portion of the Tustin Legacy project The site is bounded by Warner Avenue to the north, Tustin Ranch Road on the each, Park Avenue to the south, and Legacy Road to the west 2.0 NOISE CRITERIA CNEL (community noise equivalent level) is the 24 hour equivalent sound pressure level in which the evening (7 pm — 10 pm) and nighttime (10 pm — 7 am) noise levels are weighted by adding 5 and 10 dB respectively CNEL is commonly used to evaluate community noise impact in California The Noise Element of the City of Tustin General Plan, Table N 3 states that the exterior noise standard is CNEL 65 For multifamily projects, this standard is limited to patios and balconies with a depth of 6 feet or more, and common recreation areas The Noise Element of the City of Tustin General Plan Table N 3 states that the Interior noise standard is CNEL 45 This requirement is consistent with the California State Building Code (CBC) section 1207 Mechanical ventilating system or other means of natural ventilation shall be provided per applicable codes but cannot compromise the acoustical isolation 3.0 EXTERIOR NOISE EXPOSURE 31 Computer Model To predict exterior noise level due to future traffic volumes VA utilized the California Department of Transportation Model published by the State of California ( "California Noise Emission Levels" FHWA CA TL 87/03, January 1987) The model uses traffic volume vehicle mix, vehicle speed, and roadway geometry and site conditions to compute noise exposure 1711 Sixteenth Street Santa Monica California 90404 tel 310.450.1733 fax 310.396.3424 www veneklasen com WVeneklasen Associates Tustin Legacy Parcel 2A Exterior Noise Analysis August 8 2012 Page 2 of 5 The day /evening /night distribution and the percentages of medium and heavy trucks shown in Table 1 were used in the computer model The relative distributions and mixes were assumed to remain the same for future noise projections Table 1— Traffic Distribution for Orange County Arterial Vehicle Type Percent of Total ADT Day Evening Night Automobile 75 54 12 55 9 33 Medium Trucks 1.56 009 0 19 Heavy Trucks 0.64 0.02 008 The 2025 average daily traffic volumes for the project were taken from Exhibit 9 of the Addendum to the Disposition and Development Agreement Development Plan dated March 2006 Table 2 below gives the traffic volumes and vehicle speeds used in the CNEL calculations Table 2 — Future (2025) Traffic Volumes and Speeds Road Traffic Volume (ADT) Speed (mph) Tustin Ranch Road 26,000 40 Warner Avenue 30,000 40 Legacy Road 16,000 35 Park Avenue 22,000 35 Based on the information shown above VA calculated the future noise levels at the closest building to each roadway The calculated noise levels are shown in Table 3 Table 3 — Future (2025) Traffic Noise Levels Road CNEL Tustin Ranch Road 68 Warner Avenue 69 Legacy Road 67 Park Avenue 67 3.2 Overall Noise Exposure VA summed the levels from the various roadways The overall future exterior noise levels are shown in the following table Noise zones are defined in Figure 1 Table 4 — Future (2025) Noise Levels Location CNEL Zone A 70-72 Zone B 65 -70 Remaining Homes <65 Common Recreation Area <65 www veneklasen com WVeneklasen Associates Tustin Legacy Parcel 2A Exterior Noise Analysis August 8 2012 Page 3 of 5 3.3 �40 a ' a � w Figure 1 —Noise Zones K � � nwgRNEN � q yFNUF Of 441111 m 2 \� Common Sya� Recreation Area db i • Zone A —� Zone B Exterior Noise Mitigation The common recreation areas are located in the center of the project and shielded from traffic by surrounding buildings The noise level at the common areas will be less than CNEL 60 and will therefore satisfy the City noise standards Units in Zones A and B have private balconies which may be exposed to noise levels exceed CNEL 65 However these balconies are less than 6 feet in depth and therefore the noise standards do not apply No exterior noise mitigation is required www veneklasen com WVeneklasen Associates Tustin Legacy Parcel 2A Exterior Noise Analysis August 8 2012 Page 4 of 5 4.0 INTERIOR NOISE CALCULATION 4.1 Exterior Facade Construction VA assumes the exterior wall to be a 2x4 wood stud wall with batt insulation Interior finish will be one layer of 5/8 inch type x gypsum board and exterior finish will consist of stucco VA s calculations include the exterior wall construction for the building but indicate that the interior noise levels are determined by the acoustical Performance of the glazing system VA utilized the window assemblies shown in Table 4 below The transmission loss values were based on typical glazing units The actual construction and STC ratings shown may differ Note that the STC ratings presented are for the entire window assembly including frame and seals Table 4 — Glazing Assembly Descriptions STC Rating Thickness Typical Glazing Construction STC 30 1 dual 1/8' late, 3/4 airspace, 1/8' lite STC 34 1" dual 3/16" lite, 5/8" airspace, 3/16" lite VA also evaluated the noise through the roof of the buildings but found this acoustical path to be insignificant to the resultant interior noise level 4.2 Average Noise Level (DNL) VA calculated the interior level within the residential units given the measured noise environment and the exterior facade construction described above The calculations were based on the floor plans and elevations provided The results for each location are presented in the Table 6 Table 6— Calculated Future Interior DNL Noise Levels * Sound rated construction is not required as typical construction practices are sufficient to satisfy interior noise criteria STC 30, minimum, is recommended but not required 4.3 Mechanical Ventilation Requirement Because the windows and doors must be kept closed to meet the noise requirements at some locations, mechanical ventilation is required All units in Zones A and B will require mechanical ventilation The mechanical ventilation shall meet all Code requirements including the capability to provide sufficient fresh air exchanges without depending on open windows or leakage through windows and doors The ventilation system shall not compromise the sound insulation capability of the exterior facade assembly S.0 CONCLUSION The following mitigation measures will satisfy the noise criteria as described in section 2 • No exterior noise mitigation required with the existing design www veneklasen com Windows & Future Exterior Interior Zone Sliding Glass Noise Level Noise Level Doors A 70 -72 STC 34 4042 B 65 -70 STC 32 3842 Remaining <60 STC 30* <45 * Sound rated construction is not required as typical construction practices are sufficient to satisfy interior noise criteria STC 30, minimum, is recommended but not required 4.3 Mechanical Ventilation Requirement Because the windows and doors must be kept closed to meet the noise requirements at some locations, mechanical ventilation is required All units in Zones A and B will require mechanical ventilation The mechanical ventilation shall meet all Code requirements including the capability to provide sufficient fresh air exchanges without depending on open windows or leakage through windows and doors The ventilation system shall not compromise the sound insulation capability of the exterior facade assembly S.0 CONCLUSION The following mitigation measures will satisfy the noise criteria as described in section 2 • No exterior noise mitigation required with the existing design www veneklasen com WVeneklasen Associates Tustin Legacy Parcel 2A Exterior Noise Analysis August 8 2012 Page 5 of 5 • The exterior wall of residential units will be stucco on wood studs with a single layer of gypsum board on the inside and insulation in the cavity • Exterior window and patio door assemblies for the residential units will satisfy the requirements in Table 4 Noise zones are shown in Figure 1 Table 6 — Required Window STC Ratmes * Sound rated construction is not required as typical construction practices are sufficient to satisfy interior noise criteria STC 30 minimum is recommended but not required Various noise mitigation methods may be utilized to satisfy the noise criteria described in this report Alteration of mitigation methods that deviate from requirements should be reviewed by the acoustical consultant We trust this information is satisfactory If you have any questions or comments regarding this report please do not hesitate to contact us Sincerely, Veneklasen Associates, Inc JohnLoVerde Associate Principal g. \4216- 028 \Report 01 exterior noise analysis Tustl dmx www veneklasen corn Zone Window Rating Mechanical Ventilation A STC 34 Required B STC 32 Required Remaining STC 30' Not required * Sound rated construction is not required as typical construction practices are sufficient to satisfy interior noise criteria STC 30 minimum is recommended but not required Various noise mitigation methods may be utilized to satisfy the noise criteria described in this report Alteration of mitigation methods that deviate from requirements should be reviewed by the acoustical consultant We trust this information is satisfactory If you have any questions or comments regarding this report please do not hesitate to contact us Sincerely, Veneklasen Associates, Inc JohnLoVerde Associate Principal g. \4216- 028 \Report 01 exterior noise analysis Tustl dmx www veneklasen corn Attachment 2 Gate Design Study IRVINE COMPANY Since 1,464 September 24, 2012 Dana L. Ogdon, AICP Assistant Director Community Department City of Tustin 300 Centennial Way Tustin, CA 92780 Re: APPLICATION FOR DESIGN REVIEW 2012 -004, CONCEPT PLAN 2012 -002, DEVELOPMENT AGREEMENT 2012 -001, PARCEL MAP 2012 -136, AND INCLUDING CONSIDERATION OF REQUESTED 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). Dear Mr. Ogdon, In Response to your information regarding the gates we are proposing for our project at Tustin Legacy, I offer the following for your consideration. 1. Exhibits are attached that identify the locations of the call boxes and document the stacking distances provided for both our Park Avenue and Warner Avenue entries. In responding to your request we determined that minor revisions to the gate locations and median configurations were necessary. These exhibits reflect those revisions and supplement our application materials. 2. Consistent with Orange County guidelines, and presumably City of Tustin guidelines, one foot of stacking distance is provided for every unit in the project. 247 linear feet is provided in two lanes at the Park Avenue entry and 287 linear feet is provided in two lanes at the Warner entry. This creates a total of 534 linear feet of stacking distance. This is consistent with other Irvine Company projects. 3. As indicated on the exhibits both gated entries provide a turnaround opportunity after the call box but before the gates. The opening is 25 ft wide. 4. The two gated entries are located on each side of the project providing convenient and well distributed access to the loop drive and various apartment buildings. 5. The Park Avenue entry gate will remain open during the leasing office business hours. Typically 8:30am to 6:00 pm Monday through Saturday, Noon to 6:00 pm on Sundays. This operating approach allows prospective tenants and visitors to easily enter and park in the visitor parking spaces provided within the project, primarily on the loop drive. The City's requirement for guest parking is 144 spaces. We are providing 167 spaces, 23 in extra spaces. We do not believe parking will be allowed by the City an the adjacent perimeter streets and none is required to adequately serve our project. 6. Since the Park Avenue entry gate will be open during the day, adequate stacking distance is provided at both gates when they are closed, and the entries distribute the traffic entering the project evenly, we do not believe that the gates will impact the operation of the adjacent streets. Hopefully this information is helpful and if you need anything further, please call me at 949- 720 -2724. Thanks, i Bryan Vice President Irvine Company PARK AVENUE 1 " = 30' �IlkN2 FUSCOE I M 0 1 Y I I R I M 0 16795 Von K.,m.O, SO. 100 Irvine. C.lifwni. 97606 1.1949 474.1960 ^ f 949.474.5115 0 IRVINE COMPANY APARTMENT 1M1 I COMM U N IT[ ES TUSTIN LEGACY STACKING EXHIBIT SEPTEMBER 20, 2012 ��"it11 �i,W, FUSCOE E N 0 1 N E! N I N 0 16]95 Von Narmun, SO. 100 Irvine, California 92606 W 949.474.1960 fax 949,4]4.5]15 .1VS CO. .m WARNER AVENUE S IRVINE COMPANY I APARTMENT COMMUNITIES wo 1 " = 30' TUSTIN LEGACY STACKING EXHIBIT SEPTEMBER 20, 2012 Attachment G Resolution No. 12 -100 DDA 2012 -001 (On file with the City Clerk) RESOLUTION NO. 12 -100 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING DISPOSITION AND DEVELOPMENT AGREEMENT 2012 -001 BETWEEN THE CITY OF TUSTIN AND LEGACY VILLAS LLC, A SPECIAL PURPOSE ENTITY FORMED BY THE IRVINE COMPANY, FOR 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE - INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A, TUSTIN LEGACY (THE IRVINE COMPANY, LLC). The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That in 2010, the Tustin City Council approved the "Tustin Legacy Disposition Strategy for the Former Master Developer Footprint" for Neighborhoods B, D, E, and G, including Disposition Package 2A within Planning Area 13 of Neighborhood D. B. Pursuant to an extensive developer selection process, The Irvine Company was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed. C. That The Irvine Company and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012 -001 to cause the development of 533 multi - family residential apartment homes, including 37 moderate - income affordable units in compliance with California Government Code Section 65915(1), at Disposition Package 2A, Tustin Legacy, to be implemented by The Irvine Company or its affiliate as may be approved by the City of Tustin. D. That the site is zoned as Planning Area 13, Community Core, Neighborhood D 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. E. It is the City's desire to effectuate development of the Project through the sale, lease and development of the Property in accordance with Disposition and Development Agreement 2012 -001, all in conformance with Governmental Requirements and in substantially the form on file with City Clerk, pursuant to which, among other matters: 1. At conveyance, the City will receive $30,148,000 from the sale of parcels 2A and 1A -North that will be placed in the "Tustin Legacy Land Sale" account. An independent third party appraisal was conducted by the City; the appraisal confirms that the property is being sold at Fair Market Value. Because of the density bonus Resolution No. 12 -100 DDA 2012 -001 Page 2 and transfer of 120 affordable units to 1A -North (discussed later within this report), the opinion of value was for the combined parcels 2A and 1A -North. The City will receive ($30,148,000) upon the conveyance of 2A, and $1.00 upon the conveyance of 1A -North. 2. At conveyance, the Developer will pay to the City a Tustin Legacy Master Marketing Program Fee of $50,000 for the marketing of Tustin Legacy. 3. The Developer will pay the Tustin Legacy Fair Share Infrastructure Obligation in the amount of $15,300,000 for the construction of infrastructure within the Tustin Legacy project. 4. Currently the property is tax exempt because of City ownership. The property will lose its tax exempt status upon conveyance of the property to the Developer and will be taxed accordingly. 5. The Developer will pay an annual Community Facilities District (CFD), known as Tax 'B' not to exceed 0.15 percent of the assessed value of the property; escalated at 2.0 percent annually. The Tax 'B' CFD proceeds will be used for essential services and maintenance within Tustin Legacy. The Developer has elected to pay for the Tustin Legacy Fair Share Infrastructure Obligation without the use of Tax 'A' which is an alternative method of funding capital improvements within Tustin Legacy. 6. The City's transaction costs are borne by the Developer. 7. The Developer will develop the proposed project at Disposition Package 2A in accordance with the DDA, Development Agreement (DA) 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136, consistent with any conditions of approval, and any approved concessions and incentives; and, F. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. G. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. H. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12 -95 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an Resolution No. 12 -100 DDA 2012 -001 Page 3 additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. II. DDA 2012 -001, a copy of which is on file with the Office of the City Clerk, is hereby approved subject to any non - substantive modifications as may be determined necessary as may be approved by the City Manager's office, or as recommended by the City's special counsel or the City Attorney. III. The City Manager is hereby authorized to take such actions, and execute such documents and instruments, as deemed necessary or desirable to implement the terms of the DDA and all attachments to the DDA and other documents as necessary and, upon satisfaction of all conditions and obligations of the Developer thereto and pursuant to the DDA, to transfer the subject site to the Developer. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6" day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -100 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6" day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK Attachment H Resolution No. 12 -93 CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, Concessions and Incentives, PM 2012 -136 RESOLUTION NO. 12 -93 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING CONCEPT PLAN (CP) 2012 -002, DESIGN REVIEW (DR) 2012 -004, 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), AND TENTATIVE PARCEL MAP (PM) 2012 -136, FOR 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE - INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A, TUSTIN LEGACY (THE IRVINE COMPANY, LLC). The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows: A. That in 2010, the Tustin City Council approved the 'Tustin Legacy Disposition Strategy for the Former Master Developer Footprint' for Neighborhoods B, D, E, and G, including Disposition Package 2A within Planning Area 13 of Neighborhood D. B. Pursuant to an extensive developer selection process, The Irvine Company was selected to develop the site and on June 19, 2012, an Exclusive Negotiation Agreement (ENA) was executed. C. That The Irvine Company and City of Tustin have completed and desire to enter into Disposition and Development Agreement 2012- 001, and The Irvine Company has submitted a proper application for CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and Tentative PM 2012 -136 requesting authorization to develop 533 multi - family residential apartment homes, including 37 moderate - income affordable units in compliance with California Government Code Section 65915(1), at Disposition Package 2A, Tustin Legacy, to be implemented by The Irvine Company or its affiliate as may be approved by the City of Tustin. D. That the site is zoned as Planning Area 13, Community Core, Neighborhood D 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. City Council Resolution No. 12 -93 CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136 Page 2 E. 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 13. 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 City Council 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); 4. Conformity with the Non - Residential Land UselTrip 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 November 6, 2012 staff report provided to the Tustin City Council, (except as authorized by any approved Concessions and Incentives)). F. 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 13. After consideration of the proposed project, the Tustin City Council has determined that the proposed project's design satisfies the following general architectural and site design principles in that: 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 with distinctive architectural elements and design details. City Council Resolution No. 12 -93 CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136 Page 3 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. 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 City Council 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 District at Tustin Legacy, is surrounded by streets on City Council Resolution No. 12 -93 CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136 Page 4 all sides, and will not impact the parking demand, usage, or the vehicular circulation on the site. G. 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 City Council has determined that the requested Density Transfer is an innovative approach to providing a significant number of affordable units at Tustin Legacy with the requirement 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 moderate - income affordable apartment units (respectively) for 55 years. H. 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, but must make findings for any concessions or incentives requested for projects that provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. The Irvine Company has requested City Council approval of the requested Density Bonus, Concessions and Incentives including: Development Authorization to: Regulation 1. Increase the number of units served by a private "loop" drive (MCAS Tustin Section 2.5.2.6.8.1b) beyond the current limit of 87 units. I. That on October 9, 2012, the Tustin Planning Commission held a duly called, noticed, public hearing on the matter and adopted Resolution No. 4206 recommending that the Tustin City Council approve CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136. J. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. K. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. L. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. M. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12 -95 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on City Council Resolution No. 12 -93 CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and PM 2012 -136 Page 5 January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. II. The City Council hereby approves CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and Tentative PM 2012 -136 for 533 residential apartment units, including 37 moderate - income affordable units, at Disposition Package 2A, Tustin Legacy, with the findings noted above and subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the City Council of the City of Tustin at an adjourned regular meeting held on the 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -93 was duly passed and adopted at an adjourned regular meeting of the Tustin City Council, held on the 6th day of November, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK EXHIBIT A RESOLUTION NO. 12 -93 DEVELOPMENT AGREEMENT (DA) 2012 -001, CONCEPT PLAN (CP) 2012 -002, DESIGN REVIEW (DR) 2012 -004, 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), AND PARCEL MAP (PM) 2012 -136, FOR 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE- INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A, TUSTIN LEGACY (THE IRVINE COMPANY, LLC) GENERAL CONDITIONS OF APPROVAL The proposed project shall substantially conform with the submitted plans for the project date stamped November 6, 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) 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) 1.3 This approval shall become null and void unless the use is established within twenty (24) 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 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136 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. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODE /S (7) PC /CC POLICY (4) DESIGN REVIEW * ** EXCEPTION Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 2 (1) 1.5 Ordinance No. 1422 shall be effective. (1) 1.6 Approval of DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136 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 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136, the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision - making body, including staff, concerning this project. The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in 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 project, subject to review and approval by the Community Development Department. Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 3 USE RESTRICTIONS (1) 2.1 The Irvine Company, LLC, has partnered with St. Anton Partners (a respondent - developer approved by the City of Tustin to develop 225 apartments within Disposition Package 1A -North in Planning Area 13, Neighborhood G 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 (The Irvine Company) 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. (1) 2.2 That The Irvine Company, LLC, execute and record Development Agreement 2012 -001 provided as approved by the City Attorney (See Ordinance No. 1422), to ensure that the project related to DA 2012 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 4 9123, and PM 2012 -136 is implemented as proposed. (1) 2.3 That The Irvine Company, LLC, execute and record the Housing and Regulatory Agreement provided as approved by the City Attorney (Attachment 1 of this Exhibit), 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 The Irvine Company, 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- 001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136. 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 a Noise Report 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 November 6, 2012. 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 Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 5 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 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, when 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. (1) 3.9 The final parcel map shall be submitted following approval of the tentative parcel map. The final parcel map shall be recorded in accordance with submitted maps dated November 6, 2012, and all applicable requirements of the MCAS Tustin Specific Plan, Tustin City Code, and applicable policies and guidelines. All conditions of approval herein, as applicable, shall be satisfied prior to recordation of a final map or as specified herein. (1) 3.10 The subdivider shall comply with all applicable requirements of the State Subdivision Map Act, and the City's Subdivision Ordinance, the MCAS Tustin Specific Plan, the Tustin City Code, applicable City of Tustin guidelines and standards and applicable mitigation measures identified in the certified FEIS /EIR, and other agreements with the City of Tustin unless otherwise modified by this Resolution. (1) 3.11 Prior to final parcel map approval, the subdivider shall submit: 1. A current title report; and, Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 6 2. A duplicate mylar of the Final Parcel Map, or 8'/: inch by 11 inch transparency of each map sheet and "as built" grading, landscape, and improvement plans prior to Certificate of Acceptance 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 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 pallet: Pinus canariensis and Liquidambar styraciflue from Tustin Ranch Road and Arbutus Marina and Washingtonia robusta from Park Avenue and Legacy Road. 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 Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 7 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) will be required. The engineer's estimate, which covers the cost of all work shown on the grading plan, including grading, drainage, water, sewer and erosion control, shall be submitted to the City for approval. (1) 6.6 Prior to issuance of any permits, the applicant shall submit a Water Quality Management Plan (WQMP) for approval by the Community Development and Public Works Departments. (1) 6.7 The WQMP 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, if the WQMP is determined to be a Priority WQMP. Structural BMPs identified in the WQMP shall be shown on the grading plan. (1) 6.8 The Priority WQMP shall identify the following: a. Implementation of BMPs. b. Assignment of long -term maintenance responsibilities (specifying the developer, parcel owner, maintenance association, lessees, etc.). c. Reference to the location(s) of structural BMPs. (1) 6.9 Prior to submittal of a 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 O & M Plan to Fund and Maintain Water Quality BMPs. Consent to Inspect and Indemnification ", with the County Clerk- Recorder. This document shall bind current and future owner(s) of the property regarding implementation and maintenance of the structural and non - structural BMPs as was specified in the approved WQMP. PUBLIC WORKS DEPARTMENT— PUBLIC IMPROVEMENTS (1) 6.11 A complete hydrology study and hydraulic calculations shall be submitted to the City for review and approval. Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 8 (1) 6.12 Construction of catch basins, storm drain laterals and junction structures shall be required to eliminate the need for cross gutters on public streets. (1) 6.13 Prior to issuance of first Certificate of Occupancy for the project, the subdivider shall construct the full width improvements of all roadways listed as required roadways to be constructed as shown on Tentative Parcel Map 2012 -136, whether Tustin Legacy Backbone Infrastructure or Local Infrastructure improvements shall include all master planned systems including the streets, sidewalks, bikeways (Class I and Class II), landscaped medians, street lighting, traffic signals, bus turn -outs, landscaping and irrigation, domestic water lines, gas, storm drainage, telephone, electricity, cable TV, sewage and reclaimed water, telemetry, any necessary telecommunication systems as shown in the Specific Plan, Irvine Ranch Water District (IRWD) Sub Area Master Plan for Tustin Legacy as approved by the City, and responsible utility providers. (1) 6.14 The applicant shall design and construct the full width improvements to Legacy Road from Warner Avenue to Carnegie Road including utilities, meandering sidewalks adjacent to the project site, landscape and irrigation system adjacent to the project site, and street lights along both sides of Legacy Road. (1) 6.15 The applicant shall construct all of the improvements to Park Avenue from Legacy Road to Tustin Ranch Road as shown on the approved Park Avenue and Carnegie Road improvement plans including meandering sidewalks on both sides of the street, street lights, utilities, raised median, landscape and irrigation system for the median, etc. (1) 6.16 The applicant shall modify the traffic signal at Park Avenue and Tustin Ranch Road intersection. Intersection enhancements shall include the creation or extension of left turn lanes, additions or modifications of signal apparatus including loops and interconnects, signing and striping modifications as necessary, and restoration of landscape medians impacted by left -turn enhancements or median modifications, all of which shall be carried out in accordance with City standards. (1) 6.17 The applicant shall design and construct the Park Avenue median landscape & irrigation system and the parkway landscape & irrigation system along both sides of Park Avenue from Legacy Road to Tustin Ranch Road. (1) 6.18 The applicant shall design and construct the meandering sidewalks, landscape, and irrigation system on the west side of Tustin Ranch Road between Park Avenue and Warner Avenue South along the project Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 9 frontage. (1) 6.19 The applicant shall construct traffic signal at Tustin Ranch Road and Warner Avenue south intersection. (1) 6.20 The applicant shall construct full width improvements to Warner Avenue South from Tustin Ranch Road to Legacy Road as shown on the approved Warner Avenue improvement plans including utilities, meandering sidewalks adjacent to the project site and street lights on both sides of the street, etc. (1) 6.21 The applicant shall design and construct the traffic signal at Warner Avenue South and Legacy Road intersection. (1) 6.22 The applicant shall design and construct the Warner Avenue median landscape & irrigation system and parkway landscape & irrigation system on Warner Avenue between Legacy Road and Tustin Ranch Road along the project frontage. (1) 6.23 The applicant shall design and construct the landscape and irrigation system within Lot "N" and Lot "M" of Tract Map 17404. (1) 6.24 Separate 24 "x36" street improvement plan, as prepared by a California Registered Civil Engineer, shall be required for all construction within the public right -of -way along Park Avenue, Legacy Road, Warner Avenue south, and Tustin Ranch Road, as applicable. Said plan shall include, but not be limited to the following: a. Curb and Gutter b. Sidewalk, including curb ramps for the physically disabled c. Underground utility connections d. Signing /striping plan e. Street lighting f. Catch basin /storm drain laterals /connection to existing storm drain system g. Domestic water facilities h. Reclaimed water facilities i. Sanitary sewer facilities j. Landscape /irrigation In addition, a 24" x 36' reproducible construction area traffic control plan, as prepared by a California Registered Traffic Engineer or Civil Engineer experienced in this type of plan preparation may be required. (1) 6.25 The proposed landscaping material along Tustin Ranch Road, Warner Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 10 Avenue south, Legacy Road and Park Avenue shall be consistent with the Tustin Legacy Backbone Street Plant Palette, or as approved by the Community Development Director and /or the City Engineer. (1) 6.26 The applicant shall provide a Geotechnical Report, Pavement Analysis, and Design Report for all required Tustin Legacy Backbone Infrastructure, Local Infrastructure and Private Infrastructure improvements required in the Vesting Tentative Parcel Map. (1) 6.27 Preparation of plans for and construction of: a. All sanitary sewer facilities shall be submitted as required by the City Engineer and local sewering agency. These facilities shall include a gravity flow system per the standards of the Irvine Ranch Water District. b. A domestic water system shall be designed and installed to the standards of the Irvine Ranch Water District. Improvement plans shall also be reviewed and approved by the Orange County Fire Authority for fire protection purposes. The adequacy and reliability of water system design and the distribution of fire hydrants will be evaluated. The water distribution system and appurtenances shall also conform to the applicable laws and adopted regulations enforced by the Orange County Health Department. Any required reclaimed water system shall meet the standards as required by the Irvine Ranch Water District. (1) 6.28 Existing sewer, domestic water, reclaimed water and storm drain service laterals shall be utilized whenever possible. (1) 6.29 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) 6.30 All utility lines shall be placed underground by the developer. (1) 6.31 Current Federal Americans with Disabilities Act (ADA) requirements shall be met at all driveways and sidewalks adjacent to the site. City of Tustin standards shall apply, unless otherwise approved by the City Engineer. (1) 6.32 A street lighting system shall be prepared for review and approval by the City of Tustin and Southern California Edison. Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 11 (1) 6.33 Class II Bike Lanes shall be designed and constructed in accordance with the MCAS Tustin Specific Plan requirements and approved street improvement plan. (1) 6.34 The minimum pipe diameter for all public storm drains shall be 24 -inch. (1) 6.35 The applicant shall be responsible for abandoning and removing all existing utilities within the current and proposed roadway sections. (1) 6.36 The applicant shall be responsible for connection of the project to new backbone utility systems. The applicant shall provide applicable easements for any new utilities on private property. (1) 6.37 As part of the final design process and to comply with the Final EIR /EIS requirements for the Disposal and Reuse of MCAS Tustin, the applicant shall submit detailed 100 -year storm event hydrology calculations for the existing pre - project condition and for the project condition. As part of the study, the project's contribution to the overall increase in stormwater runoff from the redevelopment of MCAS Tustin shall be estimated and the potential design and construction costs to mitigate the increase storm water discharge contribution from the project shall be determined. (1) 6.38 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 Warner Avenue, Legacy Road, Park Avenue, Tustin Ranch Road, and within Lot "M" and Lot "N" of Tract Map 17404. (1) 6.39 The applicant shall design, construct and maintain the landscape and irrigation system and monument sign at Lot "A" of Parcel Map 2012 -136. The applicant shall dedicate in fee title "Lot A" of PM 2012 -136 to the City of Tustin, at no cost to the City. PUBLIC WORKS DEPARTMENT — GRANTS IN FEE AND DEDICATIONS (1) 6.40 The applicant shall submit legal descriptions and sketches of the areas below, prepared by a California Licensed Civil Engineer or California Licensed Land Surveyor, current Title Report, applicable back up documents, and plan check deposit to the Public Works Department for review and approval. Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 12 1. Easements for emergency vehicle access and public services ingress and egress purposes over the private streets and driveways shall be provided, at no cost to the City. 2. The applicant shall dedicate public access and maintenance easements to the City of Tustin for sidewalk along Warner Avenue south, Legacy Road, Park Avenue, and Tustin Ranch Road, at no cost to the City. PUBLIC WORKS DEPARTMENT — COORDINATION WITH AFFECTED PROPERTY OWNER(S) AND AGENCY(S) (1) 6.41 The applicant shall obtain permission from and coordinate with affected property owners, jurisdictions, and resource agencies for all public and private improvements, including, but not limited to, the following: a. Prior to any work in the public right -of -way, an Encroachment Permit shall be obtained and applicable fees paid to the Public Works Department. b. The applicant shall coordinate the design and construction of the bus stop locations with the Orange County Transportation Authority (OCTA). c. The applicant shall obtain written approval and /or permits from the applicable utility companies, including but not limited to Southern California Edison, The Gas Company, Irvine Ranch Water District (IRWD), AT &T, Cox Communications, Time Warner. etc. d. The applicant shall coordinate the design and construction of all utilities with the utility providers and the City. The applicant shall also include the design and construction of dry utility conduits and pull boxes for future City use in the arterial streets backbone system throughout the project subject to review and approval of City Engineer. PUBLIC WORKS DEPARTMENT — MISCELLANEOUS (1) 6.42 Payment of Major Thoroughfare and Bridge Fees to the Tustin Public Works Department are required at the time a building permit is issued. The fee rate schedule automatically increases on July 1st of each year. Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 13 (1) 6.43 CADD Requirements a. In addition to the normal full -size map and plan submittal, all final maps and plans including, but not limited to, tract maps, parcel maps, right -of -way maps, records of survey, public works improvements, private infrastructure improvements, final grading plans, and site plans shall be submitted to the Public Works Department in computer aided design and drafting (CADD) format to the satisfaction of the City Engineer. b. The 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). c. 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) 6.44 Subdivider shall execute a subdivision and monumentation agreement and furnish the improvement and monumentation bonds as required by the City Engineer prior to recordation of the final map. (1) 6.45 Prior to submittal of an application for building permits, the applicant shall obtain new addresses for all buildings from the Engineering Division. (1) 6.46 The applicant, property owner(s) and /or tenant(s) are required to participate in the City's recycling program. 6.47 The applicant shall coordinate the proposed trash disposal locations and services with the City's contract services provider, CR &R. (1) 6.48 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). a. The applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least 50% of the project waste material. b. The applicant will be required to submit a $50.00 application fee and a cash security deposit. Based on the review of the Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 14 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 plans and gate design study (See Attachment 1 of Resolution No. 12- 95), as may be amended from time to time with the approval of the Community Development Director. All pedestrian and vehicle gates shall be accessible to emergency and law enforcement personnel. Please identify and label the location of all 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). Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 15 (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 PR180). (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 party shall submit: • The sprinkler monitoring system (service code PR500). • The fire alarm system (service code PR500- PR520) FEES (1) 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; Exhibit A Resolution No. 12 -93 DA 2012 -001, DR 2012 -004, CP 2012 -002, DA 2012 -001, PM 2012 -136, and Density Bonus Page 16 g. New construction tax fees; h. Other applicable Tustin Legacy Backbone Infrastructure Program fees as specified in Resolution No. 3946; 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 Housing Covenants and Regulatory Agreement 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 [SPACE ABOVE LINE FOR RECORDER'S USE ONLYI 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 LEGACY VILLAS LLC, a Delaware limited liability company (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 Housing 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. All capitalized terms not set forth in below or in the Glossary of Defined Terms in Exhibit `B" attached hereto shall have the meanings set forth in the DDA (defined below). RECITALS A. The City and Owner have entered into that certain Tustin Legacy Disposition and Development Agreement for Parcel 2A, 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 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants Affordable Housing Units to Qualified Households 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 21.735 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_, (the "Quitclaim Deed ") 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 Housing 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. ; (ii) a combined density bonus for the Property and the Parcel 1 A North Property that would allow the transfer of Affordable Housing Units from the Property to Lots of Tentative Tract Map No. 17404 (the "Parcel IA North Property ") and the development on the Property of up to five hundred thirty three (533) dwelling units, including 37 Moderate Income Units, 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. The development of up to five hundred thirty three (533) dwelling units, including 37 Moderate Income Units, is hereinafter referred to as the "Project ". 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. F. The City and Owner have entered into that certain Development Agreement for Parcel 2A, 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." City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants G. The Density Bonus Law and the Density Bonus Ordinance, among other matters, provide for the following: (1) Pursuant to City Code Section 9122, the City must, upon the request of an applicant, grant a density bonus of up to thirty -five percent (35 %) (the "Mandatory Density Bonus ") when an applicant proposes to restrict twenty percent (20 %) of the Base Unit Count to Low Income Units. In the aggregate, there are 161 Very Low Income Units and Low Income Units proposed to be constructed on the Parcel l A North Property, thus exceeding the percentage of Affordable Housing Units required to obtain the maximum Mandatory Density Bonus. (2) The maximum residential density that is permitted by the Specific Plan to be constructed on both the Property and the Parcel 1 A North Property, on a combined basis, is 375 residential units on the Property and 192 residential units on the Parcel IA North Property (in the aggregate, the 567 residential units permitted on the two properties are the "Base Unit Count "). With application of the 33.7% Mandatory Density Bonus a total of 191 additional residential units may be constructed on the combined parcels of the Property and the Parcel 1 A North Property. (3) Accordingly, after application of the Mandatory Density Bonus, the Property and the Parcel 1 A North Property, on a combined basis, may contain an aggregate of 758 residential units. (4) The City has allocated the total residential units between the Property and the Parcel I North Property as follows: (i) the Property may contain up to 533 residential units as further described in this Housing Agreement, (ii) provided that 225 residential units developed on the Parcel I North Property are restricted to Affordable Housing Units. (5) The City has also allocated the total affordable residential units between the Property and the Parcel IA North Property as follows: (i) the Parcel IA North Property shall contain 88 Very Low Income Units, 73 Low Income Units, and 64 Moderate Income Units and (ii) the Property shall contain 37 Moderate Income Units. (6) When an applicant seeks a density bonus on a project that proposes to restrict fifteen percent (15 %) 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 up to three (3) incentives or concessions. The project proposed for the Parcel I A North Property will include 88 Very Low Income Units, out of a total of 567 residential units that are the Base Unit Count on the Property and the Parcel I North Property. Thus, sixteen percent (16 %), rounded up, of the Base Unit Count will be Very Low Income Units and the projects are entitled to three (3) concessions. In addition, Section 9125 of the Tustin City Code the City provides that the City Council may grant additional assistance to a project to ensure that the development of affordable housing is facilitated, including the granting of concessions. The City Council has authorized Owner to increase the number of units served by a private "loop" drive (MCAS Tustin Section 2.5.2.B.8.b) beyond the current limit 87 units. City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants H. In accordance with the allocated affordable dwelling units described above, and in connection with density bonus for the Property and the Parcel 1 A North 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) up to 533 dwelling units in the Project at the Property, of which 37 units will be reserved for Moderate Income Units. I. 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 Qualified Project Period. 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. K. Conditions of the DDA and the Entitlements require that Owner agree to enforce certain affordable housing restrictions to ensure the affordability of the 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. El City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants AGREEMENT NOW, THEREFORE, Tustin and Owner hereby agree as follows: 1. 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. Moreover, the City acknowledges that, concurrently with the execution of this Housing Agreement, City and Owner are entering into the DA relating to the Property and that any provisions of this Housing Agreement Owner or the Property to comply with any Governmental Requirements imposed by the City relating to entitlements or development of the Property shall be subject to the terms of the DA and in the event of any inconsistency between such Governmental Requirements and the DA, the Governmental Requirements required to be imposed pursuant to the DA shall control. 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 up to 533 dwelling units. Regardless of the number of units actually constructed on the Property, the Project shall include not less than 37 Moderate Income Units to be rented to, occupied by, or held available only for rental to Moderate Income Households at an Affordable Rent subject to the occupancy restrictions contained in this Section 2. Provided, however, that notwithstanding any future rent control ordinance or other restrictive rent requirements Tustin may enact, the units in the Project other than the 37 Moderate Income Units shall continue to be rented at market rates throughout the term of this Housing Agreement with no restrictive covenants on rental rates. Owner shall have no responsibility for the purchase or development of Parcel IA. 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 approved by the Program Administrator at the commencement of the Qualified Project Period 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. Pursuant to the terms of this Section 2, the location of the Affordable Housing Units in the Project could change. 2.2.2. Affordable Housing Unit Types. During the first twelve months of the Qualified Project Period, 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 to ensure compliance with Section 2.2.1. City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 2.2.3. Allocation of Affordable Unit Types. The Affordable Housing Units shall be allocated among the units in the Project as follows: Affordable Housing Unit Types Very Low Income Units Low Income Units Moderate Income Units Studio Units 0 0 0 1 Bedroom Units 0 0 21 2 Bedroom Units 0 0 16 3 Bedroom Units 0 1 0 0 Totals 0 0 37 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 and in accordance with the following terms: 2.3.1. A Qualified Household leasing an Affordable Housing Unit shall not pay Rent Consideration in excess of the Maximum Monthly 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. 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 so that at all times there are 37 Qualified Households occupying 37 Moderate Income Units. Owner is not required to maintain a particular Affordable Housing Unit in a particular location in the Project at all times. However, Owner shall use its best efforts to lease vacant Affordable Housing Units so that the number, income level, and number of bedrooms in all of the Moderate Income Units in the Project most closely match the requirements in Section 2.2.3. City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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, which may be determined by the interest list maintained by Owner. 2.3.6. During the first year of the Qualified Project Period, 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 Preference Policy. 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 Preference Policy. 2.3.9. Each Qualified Household which occupies an Affordable Housing Unit at the expiration of the Qualified Project Period, which is not in default under the terms of such Qualified Household's lease, and which 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 increase has been made pursuant to all applicable Governmental Requirements, including the TCAC Procedures. City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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. 2.4. 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" and as described in Section 2.4.2. The Maximum Monthly Affordable Rent for each Affordable Housing Unit shall be calculated initially as of the date an Affordable Housing Unit is leased to a tenant, and annually thereafter, but not later than the Outside Rent Calculation Date. The "Outside Rent Calculation Date" for each calendar year means the date that is sixty (60) days after the date on which the California Department of Housing and Community Development publishes its list of maximum affordable rents (the "HCD List') during such calendar year. Owner shall deliver to the City their proposed list of Maximum Monthly Affordable Rent for each Affordable Housing Unit in the Project (the "Proposed List') no later than the Outside Rent Calculation Date. The City shall have thirty (30) days after receipt of the Proposed List to approve the Proposed List or to provide Owner with suggested corrections to the Proposed List so that the Proposed List will comply with the maximum affordable rents permitted under this Housing Agreement. Owner shall modify the Proposed List and resubmit the same to the City for approval to address any corrections suggested by the City. If the City fails to approve or provide corrections to a Proposed List within thirty (30) days after receipt of the same, then the Proposed List shall be deemed to be approved on the thirty-first day after receipt by the City; but only to the extent the Proposed List otherwise complies with the maximum affordable rents that would be permitted under the HCD List. Owner shall not charge Rent Consideration for an Affordable Housing Unit that exceeds the applicable Maximum Monthly Affordable Rent for such Affordable Housing Unit set forth on the most recently approved (or deemed approved) Proposed List. 2.4.2. Adiustments 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. In establishing Maximum Monthly Affordable Rent for each household, Owner shall not exceed the rental amounts specified on the City Maximum Rent List, unless such list is not published on or before the date City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants that is 45 days following the publication of the HCD List, in which event Owner shall not exceed the rental amounts specified on the HCD List. 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. 2.6. Rent Schedule and Utility Allowances The Program Administrator shall annually review and approve rents proposed by Owner for the Moderate Income 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. Over- Income Moderate Income Units. If, as a result of the annual re- examination of incomes required pursuant to Section 2.9.5, Owner determines that the income of a tenant in an Affordable Housing Unit exceeds the income to qualify as a Moderate Income Household, then the dwelling unit occupied by such household shall remain an Affordable Housing Unit until the next annual Verification of Income. If, at the subsequent Verification of Income, the income of the tenant occupying the unit again does not qualify, then Owner shall request that such tenant vacate the Affordable Housing Unit within sixty (60) days after the Verification of Income date. If such tenant fails to consensually vacate the Affordable Housing Unit within such sixty -day period, then Owner shall commence eviction proceedings and shall prosecute such proceedings to completion, causing the tenant to vacate the Affordable Housing Unit. 2.7.2. Vacant Units. At all times, Owner shall attempt to lease vacant Affordable Housing Units so that the number, income level, and number of bedrooms in all of the Affordable Housing Units in the Project most closely match the requirements in Section 2.2.3. Notwithstanding anything in this Section 2.7 to the contrary, at all times during the Qualified Project Period, there shall never be fewer than 37 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. A vacant Affordable Housing Unit will continue to be treated as an Affordable Housing Unit provided that Owner continues to make reasonable attempts to rent the dwelling unit to a Qualified Household. 2.7.3. Allocation of Units. Notwithstanding the foregoing provisions, it is the intent of this Housing Agreement that all 37 of the Affordable Housing Units shall be City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants Moderate Income Units and positioned within the Project, and containing the number of bedrooms as provided in Section 2.2. In the event the application of the provisions in this Section 2 result in there being fewer than 37 Moderate Income Units in the project, then Owner shall lease the next available dwelling unit in the Project to a Qualified Household as a Moderate Income Unit. 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 an initial term of not less than six (6) months, unless the Program Administrator provides prior written approval. 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. 2.8.1.3. 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: 2.8.2.1. 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 Affordable Housing Unit after the tenant has moved out of the Affordable Housing 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 its agents legally responsible for any action or failure to act, whether intentional or negligent. 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. 10 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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 Tenancy. 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 cause. Any termination or refusal to renew without cause 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. Notwithstanding the foregoing, Owner may terminate the tenancy or refuse to renew the lease of a Qualified Household for cause upon three (3) day's notice to the Qualified Household. 2.9. Qualified Households; Records and Reports 2.9.1. Certificate Regarding Affordability Commencement Date. 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. Verification of Income. 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 Procedures 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. The Parties agree that so long as the Verification of Income is performed prior to the renewal or extension of the term of any lease, if Owner complies with the income verification procedures established by TCAC from time to time as contained in California Code of Regulations, Title 4, Division 17, Chapter 1, as amended from time to time, and as set forth on the website (http: / /www. treasurer .ca.gov /ctcac /compliance.asp), or any successor website or other published set of procedures, as may exist from time to time (collectively, the "TCAC Procedures "), then Owner's compliance with the TCAC Procedures shall be deemed to be compliance with the requirements in this Section 2.9.2. City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 2.9.3. Procedure. 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 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 proof of legal residency. In the alternative, if approved by the Program Administrator, the following may be submitted (a) proof of residency and (b) either (i) 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 (ii) 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. Qualified Household. 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 a Moderate Income Household, calculated using the definition of Income set forth in Exhibit "B" to this Housing Agreement. 2.9.5. Files. 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 occupancy by such Qualified Household and (ii) thereafter, annual Verifications of Income which must be dated as of June 1 st of each year, or such other date as may be mutually agreed 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. Certificate of Continuing Program Compliance. 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 (15`h) 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. Records. 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 solely to any of the following: (a) the occupancy of the Affordable Housing Units; and (b) the Verification of Income. 12 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 2.9.8. Contents of Certificate. Owner will prepare and submit to the Program Administrator no later than June l of each calendar year during the Qualified Project Period, a Certificate of Continuing Program Compliance executed by Owner with the following information: 2.9.8.1. 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 2.9.8.2. A statement that either (i) no uncured 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. Lease Provisions. 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 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 any household and determines that such household's income exceeds the income limit for a Moderate Income Household, then such tenant's lease shall be subject to termination in accordance with Section 2.7.1 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); provided that Owner shall not be obligated to hold an available Affordable Housing Unit vacant if none of the prospective rental applicants are eligible under the Local Preference Policy, but may instead lease the vacant Affordable Housing Unit to another Qualified Household. 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. 13 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 2. 10. Termination of Affordable Housing Covenants. The provisions of this Section 2 shall terminate in their entirety on the date that is the last day of the Qualified Project Period. 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, 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 or its employees or agents 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." 3.1.2. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 14 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 3.1.3. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 4. Maintenance of the Project Owner and all Successor Owners shall maintain the Property, at their sole cost, in accordance with the requirements of the Special Restrictions. 5. Sale or Transfer of the Proiect. 5.1. Limitations on Transfers. Prior to the termination of the DDA, any transfers of the Property or transfers of control shall be subject to Article 2 of the DDA. Following the termination of the DDA, there shall be no restrictions on transfer of the Property, or transfers of control, except as set forth in Section 5.2. 5.2. Assignment of Obligations. If the Owner transfers its fee title interest in the Property following the issuance and recording of the Certificate of Compliance, Owner shall cause the purchaser of the Property to assume in writing all of the obligations of Owner under this Housing Agreement pursuant to an assignment agreement in the form attached hereto as Exhibit "C" to this Housing Agreement (the "Assignment Agreement "), and Owner and the purchaser 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 Assignment Agreement is recorded as required, then Owner shall be released from the obligations of this Housing Agreement for that portion of the Property transferred in fee to the purchaser. 6. Effectiveness of Housing Agreement. 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. The terms of this Housing Agreement to the contrary notwithstanding, the requirements of this Housing Agreement, other than Section 2 shall be suspended and shall be of no further force and effect during the period (the "Suspension Period ") commencing on the Involuntary Transfer Date (defined below) and ending on the Suspension End Date (defined below). On the day after the Suspension Period, all of the requirements of this Housing Agreement shall again apply to the Owner of the Property. 15 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 6.1. Involuntary Transfer Date. "Involuntary Transfer Date" means the date on which any of the following occur: (i) Owner is prohibited by law from complying with this Housing Agreement pursuant to a change in federal law or pursuant to new or modified regulation by a federal agency that specifically prohibits the City from enforcing the material terms of this Housing Agreement; (ii) substantially all of the Property is taken by a government agency pursuant to the exercise of powers of eminent domain (in which event there will be no Suspension End Date); (iii) a Permitted Mortgagee obtains title to the Property pursuant to foreclosure, transfer of title by deed -in -lieu of foreclosure, or a similar event; provided that this clause (iii) shall not include the purchase at a foreclosure sale by a third party that is not an affiliate of the Permitted Mortgagee. 6.2. Suspension End Date. "Suspension End Date" means the date on which any of the following occur: (i) If the Involuntary Transfer Date is pursuant to clause (i) of Section 6.1 then the date that the owner of the Property is no longer prohibited by law from complying with this Housing Agreement; (iii) If the Involuntary Transfer Date is pursuant to clause (iii) of Section 6.1, then the date that the a Permitted Mortgagee conveys title to the Property to a third party that is not an affiliate of the Permitted Mortgagee. 6.3. Permitted Mortgagees. The obligation of Owner to obtain an Assignment Agreement from any transferee shall not apply to any transfer of the Property to a Permitted Mortgagee that obtains title to the Property pursuant to foreclosure, transfer of title by deed -in- lieu of foreclosure, or a similar event; provided that any subsequent transfer by such Permitted Mortgagee will require an Assignment Agreement from any subsequent transferee who obtain title to the Property from the Permitted Mortgagee. Covenants and Restrictions to Run with the Land. 7.1. Covenants That Run With the Land. This entire Housing Agreement, 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 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 cant' out the intent and purposes of this Housing Agreement. 7.2. 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 16 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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 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 for specific performance or other proper proceedings to enforce the curing of such breach of this Housing Agreement or covenants or restrictions. 7.3. 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. 7.4. 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. 8. 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. 9. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Property in order to establish and carry out a common plan for the use, development and improvement of the Property. 17 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 10. Default Enforcement. 10.1. Default. "Event of Default" under this Housing Agreement means any of the following: 10.1.1. 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. 10.2. 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 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 Housing 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. 10.2.1. Delinquency Notice. 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 14.4. The lien may be foreclosed by appropriate action in court or in the manner prescribed by 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 18 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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. 10.2.2. 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 Certificate of Continuing Program Compliance 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 2 occurs resulting in an Affordable Housing Unit becoming a Non - Complying Unit, and (i) if the Default is not cured within sixty (60) days after notice from Tustin to Owner, or (ii) if such Default cannot reasonably be cured within the sixty (60) 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, with respect to such Non - Complying Unit, Owner shall pay to the City the "Compliance Fee" (defined below) for the "Period of Non- Compliance" (defined below) regarding such Non - Complying Unit. Owner shall pay the Compliance Fee for the Non - Complying Unit on the fifteenth (15`) day of the calendar month immediately following the end of the Period of Non - Compliance for such Non - Complying Unit. (a) "Compliance Fee" for a Non - Complying Unit means an amount equal to (a) twenty-five percent (25 %) multiplied by (b) the Rent Consideration payable by the tenant of the Non - Complying Unit under its lease for the entire Period of Non - Compliance. (b) "Non- Compliance Period" for a Non - Complying Unit means the period commencing on the date that is sixty -one (61) days after notice from Tustin to Owner pursuant to this Section 10.2.2, and ending on the date that is the earlier of (i) the date that Owner cures the Default that resulted in the Non - Complying Unit or (ii) the date that the tenant of the Non - Complying Unit vacates the Non - Complying Unit. Owner shall provide Tustin with reasonable evidence of the date that either (i) Owner cures the Default that resulted in the Non - Complying Unit or (ii) the tenant of the Non - Complying Unit vacates the Non - Complying Unit, as applicable. 10.3. Lien of Mortgage. No breach of any of the provisions of this Housing Agreement shall impair, defeat or render invalid the lien of any Permitted Mortgage made in good faith and for value encumbering the Property or Project or any portion thereof. 10.4. Obligation of Owner During Default. The Owner shall remain liable under this Housing Agreement for any breach or default of this Housing Agreement that occurs 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. 19 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 11. Administration, Recording and Filing. 11.1. 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. 11.2. 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. 12. 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 Housing Agreement, except to the extent cause by the gross negligence or willful misconduct of Tustin. 13. 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, Tustin 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 Housing 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 Housing Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. 14. Miscellaneous. 14.1. Governing Law. This Housing Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, W City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants without giving effect to any choice of law provisions.Amendments This Housing Agreement shall be amended only by written instrument that (a) is executed by (i) the City and its successors and assigns and the Authority and its successors and assigns, as the first parties, 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. Following its approval by Tustin, this Housing Agreement shall be administered by the Program Administrator. Except where the terms of this Housing Agreement expressly require the approval of a matter by the City or the taking of any action by the City, any matter to be approved by Tustin shall be deemed approved, and any action to be taken by Tustin shall be deemed taken, upon the written approval by the Program Administrator (or designee). The Program Administrator or designee shall have the authority to issue interpretations with respect to this Housing Agreement and to determine whether any action requires the approval of the City Council. 14.3. 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. 14.4. 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: 21 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants Owner: Legacy Villas LLC c/o The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: Fax: Email: With copy to: Buchalter Nemer PC 1000 Wilshire Blvd., Suite 1500 Los Angeles, CA 90017 -2457 Attn: Michael Williamson Fax: (213) 630-5799 Email: mwilliamson @buchalter.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 14.5. Severability. 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. 22 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 14.6. 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 capacity to execute and deliver this Housing Agreement on behalf of the parties for which execution is made. In no event shall the individual executing this Housing Agreement on behalf of Owner have any personal liability hereunder. Each party represents and warrants to the other that the execution of this 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. 14.7. 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. 14.8. 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. 14.9. 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 judgment for purposes of deciding whether a Party is entitled to its costs or attorneys' fees. 14.10. 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. 23 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 14.11. 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. 14.12. 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. 14.13. Counterparts. This Housing Agreement may be executed in counterparts, and all such counterparts when taken together shall constitute a single agreement. «« Signature Page Follows »» 24 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 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: ATTEST: Un CITY OF TUSTIN: IC Jeffrey C. Parker, City Manager TUSTIN HOUSING AUTHORITY Pamela Stoker City Clerk By: APPROVED AS TO FORM 06-fi David Kendig, City Attorney Armbruster Goldsmith & Delvac LLP Special Tustin Counsel LOW Amy E. Freilich Jeffrey C. Parker Executive Director OWNER: LEGACY VILLAS LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: 25 City of Tustin / Legacy Villas 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. Signature of Notary Public (Seal) 26 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants EXHIBIT A LEC,AL DESCRIPTION OF PROPERTY That certain real property located in the City of Tustin, County of Orange, State of California and legally described as follows Lots 29 30 38 39, N, and W WW W of Tract No 17404 in the City of Tustin, County of Orange, State of California as shown on a map Fled in Book 907 Page 6, Official Records of Orange County California `= JJ LOT O r R LOT D j �'tiF� LOT P xxxx -r 40 \ l7 ! ±.aXX e 2 41 rxwbL � 03� L7 Y. 0 - Vx, i� 32. L OT VVVV IF 38 1 Un N I LCt 0000 0 26 `Ot MM 39 27 j� 25 } 28 ) 29 +i 28 TRACT NO. 17404 IN THE CITY OF TUSTIN COUNTY OF ORANGE STATE OF CALIFORNIA 27 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants EXHIBIT B GLOSSARY OF DEFINED TERMS For purposes of this Housing Agreement, the following initially capitalized terms shall mean the following: "Act" means Chapter 8 (commencing with Section 33750) of Part 1 of Division 24 of the Health and Safety Code of the State of California, as amended. "Affordability Commencement Date" means the date on which both of the following have occurred: (a) Owner has received a final certificate of occupancy for all 37 Affordable Housing Units; and (b) all 37 Affordable Housing Units 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 Moderate Income Households identified below, in each case leased to a Qualified Household at not more than the Maximum Monthly Affordable Rent as described in Section 3 in this Housing Agreement applicable to such restricted units: Type of Unit Re uired Number of Units Very Low Income Units 0 Low Income Units 0 Moderate Income Units 37 Total Affordable Housing Units 37 "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 Compliance" means that certain certificate of compliance to be provided by Tustin in the form set forth in Attachment 15 of the DDA, and recorded in the Official Records of the County of Orange upon the completion of the Improvements. "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 2.9.6 hereof or such other form as may be prescribed by the Agency. Exhibit B — page 1 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants "City" has the meaning set forth in the introductory paragraph of this Housing Agreement. "City Code" has the meaning set forth in Recital D. "City Maximum Rent List" has the meaning set forth in Section 2.4.1. "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 11.2.1. "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 11.1. "Governmental Requirements" shall mean all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines and other requirements issued by any Governmental Authority having jurisdiction over, governing, applying to or other affecting the Parties, the Project, the Improvements and/or the Property or any component thereof and including the City Code, the Specific Plan, the Entitlements and the Approved Plans. "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. "HCD List" has the meaning set forth in Section 2.4.1. "Income" means `Income,' as defined by California Code of Regulations Title 25, §6914, and shall include, but not be limited to the following: Exhibit B — page 2 City of Tustin / Legacy Villas 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; 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; Exhibit B — page 3 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants 6) Relocation payments made pursuant to federal, state, or local relocation law; 7) Foster child care payments; 8) The value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged the eligible household; and 9) Payments received pursuant to participation in the following volunteer programs under the ACTION Agency: a. National Volunteer Antipoverty Programs which include VISTA, Service Leaming 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). "Involuntary Transfer Date" has the meaning set forth in Section 7.1. "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). "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. "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 G. Exhibit B — page 4 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants "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: 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 equal to the product obtained by multiplying (i) thirty percent (30 %) by (ii) one hundred and ten percent (1 10 %) 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. "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 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 at the time of the lease shall only be deemed to be a Non - Complying Unit solely as a result of the Qualified Household losing income eligibility between certification dates in accordance with the terms of Section 2.7. "Official Record" has the meaning set forth in Recital B. Exhibit B —page 5 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants "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. "Outside Rent Calculation Date" has the meaning set forth in Section 2.4.1. "Owner" means the owner of fee title to all or any portion of the Parcel, which as of the Effective Date is Legacy Villas, LLC, a Delaware limited liability company, and each Successor Owner. "Parcel IA North Property" has the meaning set forth in Recital D. "Party" has the meaning set forth in the introductory paragraph of this Housing Agreement. "Permitted Mortgage" means Owner's permanent financing loan(s), secured by a deed of trust recorded against the Property following the issuance and recording of the Certificate of Compliance. "Permitted Mortgagee" means the lender under a Permitted Mortgage. "Permitted Transfer" has the meaning set forth in Article 2 of the DDA. "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. "Provider" has the meaning set forth in Section 11.2.2. "Qualified Household" has the meaning set forth in Section 2.9.4. "Qualified Project Period" means the period beginning on the Affordability Commencement Date and ending on the date which is fifty -five (55) years after the Affordability Commencement Date. Exhibit B — page 6 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants "Rent Consideration" means all consideration actually paid by a tenant to the landlord under a lease for housing services and amenities, of the comparable 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. "Special Restrictions" has the meaning set forth in Recital E. "Specific Plan" has the meaning set forth in Recital C. "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 Housing Agreement. "Suspension End Date" has the meaning set forth in Section 7.2. "Suspension Period" has the meaning set forth in Section 7. "TCAC" means the California Tax Credit Allocation Committee, or its successor agency. "TCAC Procedures" has the meaning set forth in Section 2.9.2. "Tustin" has the meaning set forth in the introductory paragraph of this Housing Agreement. "Tustin Legacy" has the meaning set forth in Recital C. "Verification of income" has the meaning set forth in Section 2.9.2. "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 7 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants EXHIBIT C FORM OF ASSIGNMENT AGREEMENT 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 [SPACE ABOVE LINE FOR RECORDER'S USE ONLY] ASSIGNMENT AND ASSUMPTION OF AFFORDABLE HOUSING COVENANTS AND REGULATORY AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF AFFORDABLE HOUSING COVENANTS AND REGULATORY AGREEMENT (this "Assignment ") is made and entered into as of 20_ by and between the LEGACY VILLAS LLC, a Delaware limited liability company ( "Assignor ") and [PURCHASER], a [STATE] [ENTITY] ( "Assignee "). RECITALS A. Assignor holds fee title to that certain real property consisting of an approximately 21.735 acre site, legally described in Exhibit "A ", attached hereto (the "Property "). B. Assignor and the City of Tustin entered into that certain Affordable Housing Covenants and Regulatory Agreement dated as of 2012 (the "Housing Agreement "), recorded , 201_ as Instrument No. in the official records in the Orange County Recorder's Office (the "Official Records "). Exhibit C — page 1 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants C. Assignor desires to sell the Property to Assignee, and Assignee desires to purchase the Property. D. The Housing Agreement requires that, as a condition to Assignor transferring its interest in the Property, Assignor is obligated to assign all of its rights, title, interest and obligations under the Housing Agreement to any successor owner of the Property. E. For and in consideration of transferring the Property, the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree to the following. AGREEMENT 1. Definitions. Capitalized terms used in this Assignment and not expressly otherwise defined herein shall have the meanings set forth for those terns in the Housing Agreement. The definitions and recitals set forth hereinabove are incorporated herein by reference to the same extent and with the same force and effect as if fully hereinafter set forth. 2. Assignment. Assignor hereby absolutely, unconditionally and irrevocably transfers, conveys, sets over and assigns to Assignee, all of Assignor's right, title, interest and obligations in and to the Housing Agreement, together with full power and authority, in the name of the Assignor. 3. Assumption. Assignee hereby absolutely, unconditionally and irrevocably assumes from Assignor, all of Assignor's right, title, interest and obligations in and to the Housing Agreement and agrees to assume all of the obligations and liabilities of Owner under the Housing Agreement. 4. Representations of Assignor. Assignor warrants, represents, covenants and agrees that Assignor has not previously assigned any of its right, title, interest or obligations in and to the Housing Agreement. Assignor is authorized to execute, deliver and perform under this Assignment, which is a valid and binding obligation of Assignor. No provision or obligation of Assignor contained in this Assignment violates any applicable law, regulation, or ordinance, or any order or ruling of any court or governmental agency. No such provision or obligation conflicts with, or constitutes a breach or default under, any agreement to which Assignor is a party. No consent, approval, authorization of, or notice to any person or entity is required in connection with Assignor's execution of and obligations under this Assignment. 5. Representations of Assignee. Assignee warrants, represents, covenants and agrees that Assignee has read and understood the Housing Agreement and, from and after the date of this Assignment, Assignee shall perform the obligations of the Owner under the Housing Agreement and shall be liable to the City for all liabilities of the Owner under the Housing Agreement. Assignee is authorized to execute, deliver and perform under this Assignment, Exhibit C — page 2 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants which is a valid and binding obligation of Assignee. No provision or obligation of Assignee contained in this Assignment violates any applicable law, regulation, or ordinance, or any order or ruling of any court or governmental agency. No such provision or obligation conflicts with, or constitutes a breach or default under, any agreement to which Assignee is a party. No consent, approval, authorization of, or notice to any person or entity is required in connection with Assignee's execution of and obligations under this Assignment. 6. Enforceability; Modifications. If any provision of this Assignment shall be invalid, illegal, or unenforceable, it shall not affect or impair the validity, legality, and enforceability of the other provisions of this Assignment. This Assignment may not be amended, modified, or changed, nor shall any waiver of any provision hereof be effective, except by a written instrument signed by Assignor, Assignee and the City. 7. Heirs, Successors, and Assigns. This Assignment shall be binding upon Assignor, Assignee and each of their respective heirs, devisees, successors and assigns. 8. Governing Law. This Assignment shall be governed by the laws of the State of California, without regard to the choice of law rules of that state. 9. Costs and Expenses. If any lawsuit, reference, or arbitration is commenced which arises out of, or which relates to this Assignment, the prevailing party shall be entitled to recover from each other party such sums as the court, referee, or arbitrator may adjudge to be attorneys' fees in the action or proceeding, in addition to costs and expenses otherwise allowed by law. 10. Time is of the Essence. Time is of the essence in the performance of this Assignment by Assignee, and each and every term thereof. 11. Recitals; Exhibits. The Recitals to this Assignment set forth above are true, complete, accurate, and correct, and such recitals are incorporated hereby by reference. The Exhibits to this Assignment are incorporated hereby by reference. 12. Counterparts. This Assignment and any attached consents or Exhibits requiring signatures may be executed in counterparts, and all counterparts constitute but one and the same document. [remainder ofpage intentionally left blank] Exhibit C — page 3 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment by duly authorized representatives, all as of the date first written above. Assignor: LEGACY VILLAS LLC, a Delaware limited liability company By: Name: Title: By: Name: Title: Assignee: [PURCHASER], a [STATE] [ENTITY] By: Name: Title: Exhibit C — page 4 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants State of California } } ss. County of } On 20_ 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. Signature of Notary Public (Seal) Exhibit C — page 5 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants State of California } } ss. County of } On 20_ 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. Signature of Notary Public (Seal) Exhibit C — page 6 City of Tustin / Legacy Villas Declaration of Affordable Housing Covenants Attachment! Ordinance No. 1422 DA 2012 -001 ORDINANCE NO. 1422 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT 2012 -001, AS DEFINED BY SECTION 65865.2 OF THE CALIFORNIA GOVERNMENT CODE, BETWEEN THE CITY OF TUSTIN AND THE IRVINE COMPANY, LLC. (THE DEVELOPER), A CALIFORNIA AND DELAWARE LIMITED LIABILITY COMPANY PERTAINING TO DEVELOPMENT OF 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE INCOME UNITS, AT DISPOSITION PACKAGE 2A, WITHIN PLANNING AREA 13, NEIGHBORHOOD D, OF THE MCAS TUSTIN SPECIFIC PLAN, TUSTIN, CALIFORNIA. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council of the City of Tustin finds: A. That to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted the Development Agreement Statute of the Government Code (Section 65864 et seq. of the Government Code), and the Tustin City Council adopted Sections 9600 to 9619 of the Tustin City Code. Pursuant to the Statute and City Code, the City may enter into an agreement with any person having a legal or equitable interest in real property and to provide for the development of such property and to establish certain development rights therein; B. That MCAS Tustin Specific Plan, Section 4.2.9, requires a Development Agreement for all private development at Tustin Legacy; C. That Development Agreement (DA) 2012 -001 is proposed by The Irvine Company, LLC. (the Developer), a California and Delaware limited liability company for its proposal to construct 533 residential apartment units, including 37 moderate- income units; D. That the purpose of DA 2012 -001 is to give the developer certain assurances that in return for Developer's commitment to develop the Property that is contained in Disposition and Development Agreement (DDA) 2012 -001, the City will in turn remain committed to the DDA, and the approved project; E. That the development and use of the Project at Disposition Package Site 2A, and related St. Anton Partners project at Disposition Package Site 1A -North, will provide 262 affordable units between the two projects that provide significant benefits to the community and promote the public health, safety, and welfare for the following reasons, among others: (i) development of the Project will generate tax revenues that can be used to provide essential services to the community; (ii) development will put the Project to productive use consistent with the objectives of the City's General Plan and the MCAS Tustin Specific Plan; and (iii) Ordinance No. 1422 Page 2 development of the Project will ensure the provision of 496 market rate and 37 moderate -rate affordable units at the site for a minimum of 55 years. F. That DA 2012 -001 is consistent with DDA 2012 -001. Where a conflict may arise, the more restrictive shall apply. G. That DA 2012 -001 is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the proposed project would implement both the General Plan and the MCAS Tustin Specific Plan goals and objectives. H. That DA 2012 -001 will not be detrimental to the health, safety, and general welfare in that the proposed development would comply with all applicable Federal, State, and Local rules and regulations. That DA 2012 -001 will not adversely affect the orderly development of property in that the proposed development would comply with the MCAS Tustin Specific Plan district regulations. J. That on October 9, 2012, the Tustin Planning Commission held a duly called, and noticed, public hearing on the matter and adopted Resolution No. 4206 recommending that the Tustin City Council approve Development Agreement 2012 -001. That on October 16, 2012, the Tustin City Council continued the matter to an adjourned regular meeting on October 30, 2012. L. That on October 30, 2012, the Tustin City Council continued the matter to a regular meeting on November 6, 2012. M. That a public hearing was duly noticed, called, and held on November 6, 2012 by the Tustin City Council. N. That on November 6, 2012, the Tustin City Council adopted Resolution No. 12- 95 finding that the Project is within the scope of the previously approved MCAS Tustin Final Program EIS /EIR previously certified on January 16, 2001, as amended by Supplement and Addendum and that no new effects could occur and no new mitigation measures would be required and an additional environmental analysis, action or document is not required by the CEQA. The City has alternatively determined that the proposed project is exempt from further CEQA review pursuant to Government Code Section 65457. SECTION 2. The City Council hereby approves Development Agreement 2012 -001 as included in Exhibit 1 attached hereto and subject to final approval of the City Attorney and authorizes execution by the City Manager of the City of Tustin and The Irvine Company or its affiliate as may be approved by the City of Tustin. SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance Ordinance No. 1422 Page 3 and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at an adjourned regular meeting of the City Council for the City of Tustin on this 6th day of November, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1422 PAMELA STOKER, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1422 was duly and regularly introduced and read at the adjourned regular meeting of the City Council held on the 6th day of November, 2012, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _day of _ 2012, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Exhibit 1 Development Agreement 2012 -001 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 THE IRVINE COMPANY, LLC, a California and Delaware limited liability company ( "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 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 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 not be secured without mutual cooperation in and commitment to the comprehensive planning effort that has resulted in the DDA and the Specific Plan. 2 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 concem to DEVELOPER to offset or remove the disincentives and uncertainties set forth in Paragraph F above: I. Assurance to DEVELOPER that, in return for DEVELOPER'S commitment to the development of the Property that is contained in the DDA, any approved 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. 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 3 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 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 13). 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 37 moderate income 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) (f) Will not adversely affect the orderly development of property. Note: the proposed project is orderly and well designed. 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. 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 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. 4 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: 1. 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. 1.1.1 "Agreement" is defined in the introductory paragraph. 1.1.2 "Applications" is defined in Section 3.11.2 below. 1.1.3 Reserved 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. 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 5 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 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136, required for the proposed development of 533 apartment units (including 37 affordable units) at Tustin Legacy Disposition Package 2A. 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 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136, required for the proposed development of 533 apartment units (including 37 affordable units) at Tustin Legacy Disposition Package 2A. 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 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. 6 1.1.17 Reserved 1.1.18 "New CITY Laws" is defined in Section 3.10.1 below. 1.1.19 "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 3.10 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 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: (1) 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 7 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. 2. GENERAL PROVISIONS. 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. Assignment. 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 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 2.2 of the DDA, and the following conditions: (a) DEVELOPER secures the written consent of CITY if required pursuant to Section 2.2 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, 8 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 2.2 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 Subject 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: Section 2.4.1; (a) DEVELOPER is not then in default under this Agreement; (b) CITY has consented to the assignment or transfer if required under (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 9 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 Agreement; provided, however, that in the case of amendments affecting portions of the Project, 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, 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. 10 2.7. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (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. (f) 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 nextbusiness -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: If to CITY: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager and Attention: Director of Community Development 11 With a copy to: If to DEVELOPER: City Attorney, City of Tustin Woodruff Spradlin & Smart 701 S. Parker Street, Suite 8000 Orange, CA 92868 -4760 Attention: David E. Kendig, Esq. The Irvine Company c/o Bryan Austin 550 Newport Center Drive Newport Beach, CA 92660 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. DEVELOPMENT OF THE PROPERTY. 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 3.10). 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 moderate incomes. 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 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 12 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: 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 533 -unit residential apartment complex at Disposition Package Site 2A, Tustin Legacy, including 37 moderate income rental units and 496 market rate 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 acknowledges that the City has elected to fund certain portions of the Tustin Legacy Backbone Infrastructure 13 Program through imposition of a landscape and lighting district, master maintenance association, assessment district, or any other method or means 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. Developer agrees that it will not oppose a determination by the City to form an assessment district or community facilities district including all or any portion of the Property subject thereto or any assessments by such assessment district or community facilities district provided that the City, the assessment district or community facilities district, and such assessments comply with Section 8.5.3 of the DDA. e. Pay all required development related fees, including but not limited to any required Backbone Infrastructure fee, etc. 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 Entitlement 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 design, improvement and construction standards and specifications applicable to the development of the Property, including any changes authorized pursuant to Section 3.6.1, 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 14 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 (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 3.6.1, 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 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 3.9 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 Entitlement 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 15 maps, within the Project Site to change the policy decisions reflected by the Entitlement Approvals or otherwise to prevent or delay development of the Project as set forth in the Entitlement 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 Entitlement 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 3.9, 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. 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 3.10 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. 3.10.2 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 16 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 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. 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 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 3.10.3 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. 17 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 Entitlement 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 Entitlement 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 Entitlement Approvals or otherwise to prevent or delay development of the Project as set forth in the Entitlement Approvals. Instead, the Subsequent Entitlement 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 Entitlement 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 beyond the customary expense applicable to the general public, CITY shall inform 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 Filings. 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, 18 to exercise all discretion to which it is entitled by law in processing and issuing any permits and 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. 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 City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation 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. 19 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 (c) conformance with provisions of this Agreement identified by the CITY. 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. 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 20 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 matters) 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 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 finding of compliance, and shall state the anticipated date of commencement of the next periodic review. DEVELOPER may record the Certificate with the County 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: 21 (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; (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). 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. 22 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 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. DEVELOPER shall select and retain counsel reasonably acceptable to the CITY to defend any 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. 23 (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. 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. 24 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(6). 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 shall be extended until the immediately following business day. As used herein, "business day" 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. 8.9. 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. Attorneys Fees. 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. 25 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(6). 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, describing the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to 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 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 26 filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California, Santa Ana Division, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to 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 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 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. [SIGNATURES CONTAINED ON FOLLOWING PAGE] 27 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below. ATTEST: By: Pamela Stoker City Clerk Dated: APPROVED AS TO FORM Office of the City Attorney By: David E. Kendig, Esq. "CITY" City of Tustin, California By: Jeffrey C. Parker, City Manager "DEVELOPER" By: The Irvine Company, LLC, a California and Delaware limited liability company 28 By: Name: Its: By: Name: Its: EXHIBIT "A" 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» [to be inserted/attached] Exhibit A 2A Property Legal Description and Site Map Lots 29, 30, 38. 39. N. and W WW W of Tract No. 17404 in the City of Tustin. County of Orange, State of California as shown on a map filed in Book 884, Pages 1 to 14, Official Records of Orange County, California. IN THE CITY OF TUSTIN, COUNTY OF ORANGE STATE OF CALIFORNIA EXHIBIT `B" TO DEVELOPMENT AGREEMENT Map showing Property and its location [to be inserted/attached] Exhibit B N LEaNCY RoP° • 0 f t I /! l PREPARED BY'" III I !i=I FUSCOE . c_ BARRANCA PARKWAY 16795 von Summon, Syr* 100 Imno, California 92606 Id 949 47/ 1960 • fax 949.474 5315 rw Fuvu corn PREPARED FOR i 1 O IRVINE COMPANY I APARTMENT %a.I.,. COMMUNITIES LOCATION MAP P \ Projects \ 226 \ 5 \Eng \ Exhibits \oocs \22651 —xH —Loco on_Mop dwg (10/23/2012 2 07 PM) Attachment J Planning Commission Resolution No. 4206 and approved Minutes RESOLUTION NO. 4206 v A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, RECOMMENDING THAT THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT (DA) 2012 -001, CONCEPT PLAN (CP) 2012 -002, DESIGN REVIEW (DR) 2012 -004, 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), AND PARCEL MAP (PM) 2012 -136, FOR 533 RESIDENTIAL APARTMENTS, INCLUDING 37 MODERATE - INCOME AFFORDABLE UNITS, AT DISPOSITION PACKAGE 2A, TUSTIN LEGACY (THE IRVINE COMPANY, LLC). The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That a proper application for DA 2012 -001, CP 2012 -002, DR 2012- 004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136, was filed by The Irvine Company, LLC, requesting authorization to develop 533 multi - family residential apartment homes, including 37 moderate - income affordable units in compliance with California Government Code Section 65915(1), at Disposition Package 2A, Tustin Legacy, to be implemented by The Irvine Company or its affiliate as may be approved by the City of Tustin. B. That the site is zoned as Planning Area 13, Community Core, Neighborhood D 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. 4206 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 13). 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 37 moderate - income 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 13. 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 Resolution No. 4206 Page 3 Tustin Specific Plan. No specific design features are provided for multi - family developments in Chapter 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 13. 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: 1. The buildings define and relate to the street edge, with architecture 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 Mn consideration of the following criteria: 1. Height, bulk and area of buildings. 2. Setbacks and site planning. 3. Exterior materials and colors. 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 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 Mn consideration of the following criteria: 1. Height, bulk and area of buildings. 2. Setbacks and site planning. 3. Exterior materials and colors. Resolution No. 4206 Page 4 4. Type and pitch of roofs. 5. Size and spacing of windows, doors and other openings. 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 District at Tustin Legacy, is surrounded by streets on all sides, and will not impact the parking demand, usage, or the vehicular circulation on the site. 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 moderate - income affordable apartment units (respectively) for 55 years. 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, but must make findings for any concessions or incentives requested for projects that provide affordable housing units in compliance with California Government Code Section 65915(1), as authorized under Tustin City Code Section 9123. Consequently, the Tustin Planning Commission supports Tustin City Council approval of the requested Density Bonus, Concessions and Incentives including: Resolution No. 4206 Page 5 Development Authorization to: Regulation 1. Increase the number of units served by a private "loop" drive (MCAS Tustin Section 2.5.2.B.8.b ) beyond the current limit of 87 units. G. That a public hearing was duly called, noticed, and held for DA 2012- 001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Code Section 9123, and PM 2012 -136 on October 9, 2012 by the Planning Commission. H. That 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. 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 -001, CP 2012 -002, DR 2012 -004, Density Transfer, Density Bonus, and Concessions or Incentives authorized under Tustin City Resolution No. 4206 Page 6 Code Section 9123, and PM 2012 -136 for 533 residential apartment units, including 37 moderate - income affordable units, at Disposition Package 2A, 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. STEVL COZAK Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4206 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 9`h day of October, 2012. ELIZABETH A. BINSACK Planning Commission Secretary u In the interest of conservation, the attachments to Planning Commission Resolution No. 4206 are not included. See attached proposed City Council Resolutions and Ordinance No. 1422 MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION OCTOBER 9, 2012 7:00 p.m. CALL TO ORDER: Given INVOCATION /PLEDGE OF ALLEGIANCE: Commissioner Eckman Sworn in by Mayor 1. SEATING OF COMMISSIONER ALTOWAIJI. John Nielsen ROLL CALL: Chair Kozak Chair Pro Tern Thompson Commissioners Altowaiji, Eckman, and Moore Staff Present Elizabeth A. Binsack, Director of Community Development M. Lois Bobak, Assistant City Attorney Dana L. Ogdon, Assistant Director of Community Development Justina Willkom, Principal Planner Scott Reekstin, Senior Planner Amy Stonich, Senior Planner Adrianne DiLeva, Recording Secretary PUBLIC CONCERNS: Chair Pro Tern Thompson stated Chair Kozak, himself, and his fellow Commissioners, would like to take a moment to formally recognize three staff members of the Public Works Department who will be retiring and have assisted the Planning Commission on many items in the past; Doug Anderson, Dana Kasdan, and Terry Lutz. A brief biography on each of the employee's professional histories was read, and they were presented with a historic book on the City of Tustin. Chair Kozak and Chair Pro Tern Thompson thanked them for all their hard work. CONSENT CALENDAR: Approved 2. APPROVAL OF MINUTES — SEPTEMBER 25, 2012, PLANNING COMMISSION. Minutes — Planning Commission October 9, 2012 — Page 1 of 11 RECOMMENDATION: That the Planning Commission approve the minutes of the September 25, 2012, meeting as provided. Motion: It was moved by Eckman, seconded by Thompson, to move the Consent Calendar. Motion carried 4 -1. Commissioner Altowaiji abstained. PUBLIC HEARINGS: Adopted Resolution 3. CONDITIONAL USE PERMIT (CUP) 2012 -10. No. 4207 as amended, recommending approval The request is for Planning Commission recommendation to the City Council of approval of CUP 2012 -10 to the City Council to allow a maximum of 24 paid outdoor events per year at the existing single family residence at 310 S. Pasadena Avenue. APPLICANTS/ PROPERTY OWNERS: Wilcox Manor Trust Michael J. Demoratz, Trustee Lindburgh M. McPherson, Trustee, 310 S. Pasadena Avenue, Tustin, CA 92780 PROJECT LOCATION: 310 S. Pasadena Avenue ENVIRONMENTAL: This project is categorically exempt (Class 1 — existing facilities, and Class 3 — small new facilities) pursuant to Sections 15301 and 15303 of the California Environmental Quality Act. RECOMMENDATION /ALTERNATIVES: Pursuant to Tustin City Code Sections 9252c and 9252j2(a)(2), the Planning Commission serves in an advisory capacity to the City Council on all matters relating to the Cultural Resource (CR) District and on all conditional use permits for non - listed uses which support the purposes of the CR District. As such, the following is a recommendation and /or alternatives available: Minutes — Planning Commission October 9, 2012 — Page 2 of 11 n • Adopt Resolution No. 4207 recommending that the City Council approve Conditional Use Permit 2012 -10 determining that the proposed project supports the purposes of the CR District and authorizing a maximum of 24 paid outdoor events per year at the existing single family residence at 310 S. Pasadena Avenue; or In the alternative the Commission may take one of the following actions: • Direct staff to prepare a resolution recommending that the City Council deny Conditional Use Permit 2012 -10, with findings that the use does not support the purposes of the CR District and findings for the denial of a conditional use permit. • Direct staff to evaluate the merits of initiating a General Plan Amendment and Zone Change to change the General Plan Land Use Designation and zoning designation of the property at 310 S. Pasadena from Low Density Residential and Single Family Residential (R1) to High Density Residential and Multiple Family Residential (R3); and determine that the proposed use is similar to social halls, lodges, clubs, etc. which are conditionally permitted uses in the R3 District. Commissioner Altowaiji recused himself from the public hearing due to owning property within 500 feet of the proposed project. He then left the dais. Reekstin Gave a presentation of the item. Commission questions generally included: signs for off -site parking; db(A) limit at 10:00 p.m.; alternative off -site parking during business hours of the desired off -site lot; details of the shuttle- service to and from the off -site parking; events being limited to Friday, Saturday, and Sunday; agreement for off -site parking and distance of the parking from the residence; design for the proposed restrooms; use of the property prior to the CUP approval; possibility of the CUP being terminated if the property ownership changes; how the City would gather revenue if the project is approved; the option of a zone change; how the 200 person limit and the limit of five events per month were established; the application of the fire code since the events are outdoors and why indoor events are not proposed; ADA requirements on the property; the French Estate in Orange's similarities to the proposed project; and the number of non -paid events the applicants are currently hosting. Minutes — Planning Commission October 9, 2012 — Page 3 of 11 The public hearing opened at 7:52 p.m. The following members of the public spoke in favor of the proposed project: Lindburgh McPherson, applicant Michael Demoratz, applicant Libby Pankey Jody Wedret Ruth Harrell Chad Ortlieb Robin Fry Gretchen Whisler Melody Mosley Rosemary Pinedo Moses Perez Donna Marsh Peery Cherrill Cady Cathy Michaels Sarah Pearson Raad Ghantous Comments of support generally included: how the use would enhance the character of the community and introduce guests to the history of Tustin; sound from the backyard is not audible from the front; the applicants are a vital asset and generous in donating to non - profits, therefore the paid events would help recover those costs; the applicants are professional and respectful towards their neighborhood when running events; and enrichment of the City and economy through networking and referring guests to local businesses. The following members of the public spoke in opposition to the proposed project: Brent Ferdig Linda Jennings Martin Blenz Teresa O'Toole Comments of concern generally included: regulation of on- site parking /traffic congestion and noise caused by cars and shuttle busses; setting a precedent throughout the City; incompatibility of establishing a high - volume commercial use in a residential neighborhood; alcohol being consumed at events; inconsistency with Tustin's Minutes — Planning Commission October 9, 2012 — Page 4 of 11 General Plan; nuisance of the directional signs and negative impact on property values; the historic home is not open to guests during these paid events, therefore it is not being used to introduce guests to Tustin's history; trash clean -up after events; subletting; and pest control. The public hearing closed at 9:04 p.m. The Commission entered into deliberation of the item recommending amendments to the Resolution and conditions of approval noting that the conditions should be onerous to ensure there is a balance between the neighborhood and proposed use. The Commission's amendments are as follows: Minutes — Planning Commission October 9, 2012 — Page 5 of 11 • Globally change "24 paid outdoor events" to "24 outdoor events." • Delete Resolution No. 4207 Finding I.D.c. • Delete Resolution No. 4207 Finding I.E.e. • Add the Public Works Department to Resolution No. 4207 Finding I.H.8. • Condition 1.5 — Add provision that revocation would be considered after third infraction /citation within one year. • Condition 1.11 — Add "as determined by the Community Development Director." • Condition 2.3 — Specify that the maximum of 200 people is a total per event. • Conditions 2.4, 2.26, and 2.27 — Adjust the hours of operation to no later than 10 p.m. on Friday and Saturday and 9 p.m. Sunday through Thursday, with equipment removal up to one hour later. • Condition 2.6 — Prohibit on -site signage. • Condition 2.7 — Require attendees to present proof of shuttle use. • Condition 2.12 — Require shuttle vans to be non - diesel, have a maximum passenger capacity of twelve, not use horns or bells, be ADA compliant, and not idle for more than three minutes. • Condition 2.13 — Require guests to use the shuttle service rather than walk. • Condition 2.19 — Require litter removal, with no specified distance from the property. • Condition 2.22 — Tie CUP 2012 -10 to the applicants. • Condition 2.29 — Require a schedule of events and information on the applicants' website 30 days prior to an event. • Condition 2.36 — Require all businesses servicing events to obtain all required permits. Minutes — Planning Commission October 9, 2012 — Page 5 of 11 • Condition 2.42 — Add condition requiring residential solid waste collection services. • Condition 4.1 — Require the sewer lateral to be upsized if necessary. The Commission reached a consensus to recommend the proposed project to the City Council with the abovementioned amendments. Motion: It was moved by Thompson, seconded by Moore, to adopt Resolution No. 4207 as amended recommending the item to City Council. Motion carried 4 -0. Commissioner Altowaiji was recused from the vote. The Planning Commission recessed at 10:00 p.m. and readjourned at 10:10 p.m. Adopted Resolution 4. DEVELOPMENT AGREEMENT (DA) 2012 -002, No. 4205 recommending CONCEPT PLAN (CP) 2012 -003, DESIGN REVIEW (DR) approval to the City Council 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). The request is for DA 2012 -002, CP 2012 -003, 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) required for proposed development of Tustin Legacy Disposition Package 1A -North which includes 225 affordable multi - family residential apartment homes. APPLICANT: St. Anton Partners, LLC 4630 Campus Drive, Suite 111 Newport Beach, CA 92660 PROPERTY OWNER: City of Tustin PROJECT LOCATION: Tustin Legacy Disposition Package 1A North 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. Minutes — Planning Commission October 9, 2012 — Page 6 of 11 ENVIRONMENTAL: The Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin along with its 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. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4205 recommending that the Tustin City Council approve Development Agreement (DA) 2012 -002, Concept Plan (CP) 2012 -003, Design Review (DR) 2012 -005, 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 1A- North. Ogdon Gave a presentation of the item. Planning Commission questions generally included: clarification on the exchange of affordable versus market -rate units from The Irvine Company to St. Anton; the provision for compact parking spaces in the MCAS Tustin Specific Plan; discrepancy with the setback requirement; whether the increase in housing creates the need for a revaluation of the EIR; requirements for affordable housing; number of incentives and concessions being proposed; parking managementlimplementation plans; cost limitation on the proposed park; master association fees; necessity of the completion of the Tustin Ranch Road extension; clarity of the surrounding land uses planned for the future; parks private or public; and whether or not gated communities are allowed within the MCAS Tustin Specific Plan. The public hearing opened at 11:03 p.m. Steve Eggert stepped forward representing St. Anton Partners. Mr. Eggert gave a brief presentation of the project proposal and stated what a positive addition it would be to the City of Tustin. Minutes — Planning Commission October 9, 2012 — Page 7 of 11 The public hearing closed at 11:11 p.m. The Planning Commission entered discussion of the item. Altowaiji Stated his design - related questions were answered by Mr. Eggert. Eckman Had no additional comments at this point. Thompson Loves the project and the amenities. Approves of the design. Would like to move the approval of the item. Kozak Stated his concerns were adequately addressed by the applicant. Supports the transfer of affordable units as well as the project design. Would recommend approval of the project to the City Council. Moore Requested clarification on the development agreement. Motion: It was moved by Thompson, seconded by Altowaiji, to adopt Resolution No. 4205 recommending approval to the City Council. Motion carried 5 -0. Adopted Resolution 5. DEVELOPMENT AGREEMENT (DA) 2012 -001, DESIGN No. 4206 recommending REVIEW (DR) 2012 -004, CONCEPT PLAN (CP) 2012 - approval to the City Council 002, DENSITY TRANSFER, 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), AND PARCEL MAP (PM) 2012 -136. The request is for DA 2012 -001, CP 2012 -002, DR 2012- 004, Density Transfer, 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), and PM 2012 -136, required for proposed development of Tustin Legacy Disposition Package 2A which includes 37 moderate income units and 496 market rate units for a total of 533 residential apartment units. APPLICANT: The Irvine Company, LLC 550 Newport Center Drive Newport Beach, CA 92660 Minutes — Planning Commission October 9, 2012 — Page 8 of 11 PROPERTY OWNER: City of Tustin PROJECT LOCATION ENVIRONMENTAL: Tustin Legacy Disposition Package 2A bounded by future Warner Avenue on the north, future Park Avenue on the south, and existing Tustin Ranch Road on the east. The Program Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin along with its 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. RECOMMENDATION: That the Planning Commission adopt Resolution No.4206 recommending that the Tustin City Council approve Development Agreement (DA) 2012 -001, Concept Plan (CP) 2012 -002, Design Review (DR) 2012 -004, Density Transfer, 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), and Parcel Map (PM) 2012 -136, required for the proposed development of 533 apartment units (including 37 affordable units) at Tustin Legacy Disposition Package 2A. Ogdon Gave a presentation of the item. Planning Commission questions generally included: affordable or moderate - income housing in the development; open -space requirements; and building height limitations. The public hearing opened at 11:42 p.m. Bryan Austin spoke representing The Irvine Company. Mr. Austin provided a brief presentation on the project proposal. Stated The Irvine Company is excited to be part of Tustin Legacy. Minutes — Planning Commission October 9, 2012 — Page 9 of 11 The public hearing closed at 11:50 p.m. The Planning Commission entered discussion of the item. Altowaiji Stated this is a great project proposal similar to St. Anton's and would support staffs recommendation of approval. Moore Stated he understood staffs clarification of the open -space element. Eckman Stated it is a great project and that he supports it. Thompson Would move forward with approval of the project. His questions were addressed. Kozak Echoed his fellow Commissioner's comments. Stated the St. Anton and The Irvine Company projects will complement each other well. Motion: It was moved by Kozak, seconded by Thompson, to adopt Resolution No. 4206 recommending approval to City Council. Motion carried 4 -1. Commissioner Moore abstained. None REGULAR BUSINESS: None STAFF CONCERNS: COMMISSION CONCERNS: Eckman • Attended Tustin Tiller Days in which the Parks and Recreation Department did a wonderful job of coordinating. Hoped many nonprofit organizations benefited that day. Altowaiji Thanked City Council for his appointment as Planning Commissioner. Stated he looks forward to working with his fellow Commissioners to accomplish the goals of the City. Moore Welcomed Commissioner Altowaiji; Requested an update on recent project approvals in Old Town, and the congregate care facility on Red Hill. Thompson Stated Tiller Days was well -done once again; • Congratulated Commissioner Altowaiji on his appointment; • Requested to be kept updated on projects /development agreements for disposition packages within Tustin Legacy. Minutes —Planning Commission October 9, 2012 —Page 10 of 11 u 0 Kozak Thanked staff for their hard work this evening; • Congratulated the Parks and Recreation Department on a successful Tustin Tiller Days event; • Participated in a recent CEQA webinar; • Stated City Council approved the Red Hill Lutheran project and denied the appeal of the Goodwill Industries Project, thus approving it as well; • Welcomed Commissioner Altowaiji and stated it was good to have him on board. 11:58 p.m. ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, October 23, 2012, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way. P Nt- ELIZABETH A. BINSACK Planning Commission Secretary Minutes — Planning Commission October 9, 2012 — Page 11 of 11